Police v Faaiu [2019] WSSC 2 (7 February 2019)

SUPREME COURT OF SAMOA
Police v Faaiu [2019] WSSC 2

Case name:	Police v Faaiu
Citation:	[2019] WSSC 2
Decision date:	7 February 2019
Parties:	POLICE v FAAIU FAAIU aka JAKE FAAIU male of Levi, Saleimoa.
Hearing date(s):	7 February 2019
File number(s):	S1237/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted of the charges against him and sentenced to 18 months supervision and ordered to perform 180 hours community work.
Representation:	L Sua Mailo for prosecution Accused in person
Catchwords:	Drug and Alcohol Court (ADC) – anger management and violence prevention programme – armed with a dangerous weapon – earliest guilty plea –aggravating features relating to the offending – with intent to cause grievous bodily harm – actual bodily harm –mitigating features relating to the accused as offender – reconciliation – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.118 (1) Police Offences Ordinance 1961, s.23
Cases cited:	Police v Amituanai [2017] WSSC 49
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D:

FAAIU FAAIU aka JAKE FAAIU male of Levi, Saleimoa.
Accused

Counsel:
L Sua Mailo for prosecution
Accused in person

Sentence: 7 February 2019

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of with intent to cause grievous bodily harm did cause actual bodily harm to the victim, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and one charge of being armed with a dangerous weapon, namely, a stone, contrary to s.23 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The Alcohol and Drugs Court (ADC)

2. After the accused had pleaded guilty to the charges against him, he was referred to the ADC case manager for screening as his offending involved alcohol. The ADC case manager in his report recommended that the accused be referred to the 8 week anger management and violence prevention programme of the ADC called the Tofa Fetalai. The accused attended and successfully completed the programme and graduated with a certificate. A report from the ADC case manager on the successful completion of the said programme by the accused has been submitted to the Court.
3. This matter was then referred back to this Court for sentencing. When the prosecution summary of facts was read out to the accused, he accepted every part of the summary of facts but denied punching the victim with a rock (stone). He said he used only his bare fist. The matter was then adjourned for a disputed summary of facts hearing. On Tuesday 5 February 2019 before the commencement of the disputed summary of facts hearing, the accused told the Court that he now accepts that he punched the victim with a stone.

The offending

4. According to the prosecution summary of facts, on Saturday night 30 June 2018 at Levi, Saleimoa, the accused, his older brother, and a cousin were drinking alcohol in a banana plantation on the side of the access road inland of Levi, Saleimoa. All three of them became intoxicated. As the three men were still drinking, the victim passed by on the access road playing music on his portable speaker. The accused, his older brother, and cousin then called out to the victim to join them and have a drink. When the victim declined, the older brother of the accused asked the victim for his speaker. The victim refused. Upon being persistently asked for his speaker, the victim turned and ran away to his aunty’s home. The accused and his older brother ran after the victim. When the victim reached his aunty’s house, he stopped. At that time, he saw the accused approaching him holding a rock (stone). The accused then punched the victim on the jaw with the rock (stone) causing the victim to fall down. One of the villagers who saw what happened intervened and the accused and his older brother walked away.
5. The accused told the probation service that on the right of this incident, his family had just laid their late sister to rest. He was drinking a large bottle of spirits with his older brother and an acquaintance when they heard loud noise blasting from the road approaching where they were drinking. Soon afterwards, they saw the victim walking by playing music on his portable speaker. Such a speaker is forbidden within their village and the accused’s older brother called out to the victim to turn his music down but the victim responded with a negative remark.

The victim

6. The victim is a 23 year old male of Levi, Saleimoa. He and the accused are from the same village. After the victim was assaulted, he was taken to the National Hospital the same night. The medical report from the doctor who received the victim at the emergency department of the National Hospital states that the victim was alert and conversing well but in some distress on arrival at the hospital on 30 June 2018 at 11:15pm. An obvious swelling was noticed on the right side of the victim’s jaw and the victim was referred for an x-ray which showed a fracture on the right side of his jaw. The victim was then referred for IV antibiotics and pain relief before being referred to the dental team for management of his fracture. The victim was then discharged on 4 July 2018 with pain medication. Up to 27 July 2018, the date of the medical report, the victim continued to be followed up by the dental team.
7. In the prosecution sentencing memorandum, it is said that an operation was conducted immediately on the victim because he was suffering from severe pain and that mental plates sere inserted in his mouth to support his jaw and teeth. This is not quite the same as what is said in the medical report. What is said in the medical report is that the victim was alert and conversing well but in some distress on arrival at the hospital. An obvious swelling appeared on the right side of the victim’s jaw and the victim was referred for an x-ray. The victim was then admitted for IV antibiotics and pain relief before being referred to the dental team. There is no report from the dental team before the Court and there is no mention of metal plates being inserted to support the victim’s jaw and teeth. It was on 6 February 2019 when this matter was called for the Court’s sentencing decision that the Court called the victim and asked him and he said that his teeth were wired. A copy of the victim impact report was also produced at that time.
8. The prosecution sentencing memorandum also says that the victim was hospitalised for a month. This appears to be based on what is said in the victim impact report. It is inconsistent with the medical report which says that the victim was received at the emergency department of the National Hospital on 30 June 2018 and was discharged on 4 July 2018 which means the victim was hospitalised for only four days. When the victim was asked on 6 February 2019 about this discrepancy, he accepted what is said in the medical report but stated he then attended to the dental department of the National Hospital as an out-patient for a month.
9. It appears from the victim impact report that the victim’s jaw and teeth are now normal again.

The accused

10. As shown from the pre-sentence report, the accused is 24 years old and is from the same village as the victim. He is married and his wife is now six months pregnant. He is employed at a construction company and is the sole provider for his young family. He finished school at Year 12 and served as a missionary for his Mormon Church for two years in the United States until 2017 when he returned home to Samoa.
11. The testimonials provided by the wife of the accused, his church leader, and the pulenu’u of his village to the probation service show that the accused had been a person of good character prior to the commission of his present offences. He is also a first offender.
12. The accused also expressed deep remorse to the probation service and to the Court. He promised not to offend again. He also told the Court that he has stopped drinking alcohol since the time of this offending. The accused has also successfully completed the ADC anger management programme and violence prevention programme.
13. The accused and his father have also apologised to the victim and the victim’s father and this matter has been reconciled and settled. The victim and his father appeared before the Court and confirmed the reconciliation and settlement. The victim’s father also informed the Court that they have forgiven the accused.

The aggravating features relating to the offending

14. The following are the aggravating features relating to the offending:
    • (a) use of a rock (stone) to punch the victim,
    • (b) punch was aimed at the head area,
    • (c) pursuit by the accused and his older brother of the victim who was running away,
    • (d) vulnerability of the victim who was by himself, and
    • (e) impact of offending on the victim.

The mitigating features relating to the accused as offender

15. The following are the mitigating features relating to the accused as offender:
    • (a) deep remorse,
    • (b) apology to the victim and his father,
    • (c) matter has been reconciled and settled,
    • (d) previous good character,
    • (e) successful completion of the ADC anger management and violence prevention programme and the accused has stopped drinking alcohol since his offending, and
    • (f) early guilty plea.

Discussion

16. Having considered the aggravating features of the offending and the mitigating features personal to the accused as offender as well as the accused’s personal circumstances mentioned in his pre-sentence report, I have decided to give the accused a second chance to redeem himself. In the case of Police v Amituanai [2017] WSSC 49 cited by the prosecution as having similar circumstances to this case in terms of the offending, the end sentence imposed was 3 months imprisonment. In respect of the aggravating and mitigating features of this case, I have decided to impose a non-custodial sentence.

The result

17. The accused is convicted of the charges against him and sentenced to 18 months supervision and ordered to perform 180 hours community work.

Stand down.

CHIEF JUSTICE