Police v Falemai [2019] WSSC 28 (21 March 2019)

SUPREME COURT OF SAMOA
Police v Falemai [2019] WSSC 28

Case name:	Police v Nayak Falemai
Citation:	[2019] WSSC 28
Decision date:	21 March 2019
Parties:	POLICE v NAYAK FALEMAI male of Salepoua’e and Lotoso’a Saleimoa.
Sentencing date(s):	21 March 2019
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- I accept the recommendation by the prosecution that a non-custodial sentence is appropriate in respect of the charge of assault causing grievous bodily harm. In respect of the charge of assault causing grievous bodily harm, you are convicted and sentenced to 12 months supervision on the following conditions: (a) You are prohibited from consuming any alcohol or drugs during the supervision period; (b) You are not to re-offend during your supervision period; (c) You are to attend the Salvation Army program as directed by the Probation Service and any other programs directed during your supervision period; and (d) You are to carry out 100 hours of community work as directed by the probation service. - In terms of the charge of insulting words, you are convicted and sentenced to a fine of $50.00. That fine is to be paid by 4pm today. In default of payment by 4pm today, one-week imprisonment.
Representation:	Q Sauaga for Prosecution Accused self-represented
Catchwords:	assault with intent – maximum penalty – insulting words –genuine remorse –reconciliation
Words and phrases:	You are however under 21 years of age and you should not have been drinking at all.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

NAYAK FALEMAI male of Salepoa’e and Lotoso’a Saleimoa.
Accused

Counsel:
Q Sauaga for Prosecution
Accused self-represented

Decision: 21 March 2019

O R A L S E N T E N C E

The Charge:

[1] Nayak, you appear for sentence on one charge of assault with intent to cause grievous bodily harm. You also appear for sentence on one charge of uttering insulting words. The charge of grievous bodily harm carries a maximum penalty of up to 10 years imprisonment. The charge of insulting words carries a maximum penalty of up to 3 months imprisonment or a fine of $200.00.

The Offending:

[2] According to the Summary of Facts which you have accepted yesterday, on the 14th July 2018 at around 11pm, the victim was waiting for his mother, wife and young sister to go home. Whilst the victim was waiting for his family, you approached him and said to him the following words: “pe oute fia pigi ia te ia”. The victim responded to you no.

[3] After the bingo, the victim together with his wife, mother and young sister were walking on the road on the way home. On their way home you were waiting for the victim beside a shop and called out to the victim. You called out saying ‘e ke fia ulavale, sau la ka pigi’ and you swore at him saying the word ‘kefe’. You again swore at the victim. You then ran into a dark area and stood there for a while. The victim however managed to escape from his mother and ran after you. When he reached you, you turned around and punched the victim with your right hand. The victim fell down into the pa aute. People in the area ran over and pulled you away from the victim and took you home.

[4] As a result of your fight with the victim and your assault of the victim, he sustained the injuries to his left jaw and a broken anterior tooth. You told the Probation Service that you had been drinking Niu Vodka on this night.

Background of the Accused:

[5] You are a 19 year old single young man from Salepoua’e and Lotoso’a Saleimoa. According to your Pre-Sentence Report, you reached year 12 schooling but were then expelled. You father says that you and he have a close relationship and you are described as hardworking. You have no prior convictions.

The Victim:

[6] The victim is a 27 year old male also of Salepoua’e Saleimoa. He is married with three children. As a result of your assault, he suffered a fracture to the left of his jaw and a broken anterior tooth. According to the history told by the victim to his treating doctors when they examined him, he gave a history of being assaulted when under the influence of alcohol. The victim says that there has been reconciliation which was accepted.

Aggravating Features of the Offending:

[7] The aggravating features of your offending is that you armed yourself with a rock.

Mitigating Features of the Offending:

[8] In terms of the mitigating features of your offending I note that the victim followed and confronted you after had left the scene. It was after he followed and confronted you that you assaulted him.

Mitigating Factors personal to the Offender:

[9] In terms of the mitigating factors personal to you as an offender are as follows:

• Your youth;

• Genuine remorse, apology and reconciliation; and

• Guilty plea that you have entered.

Discussion:

[10] Nayak, you appear for sentence on the very serious charge of assault with intent to cause grievous bodily harm. It is apparent that you committed your acts when you were under the influence of alcohol. You told the probation service that you have been drinking niu vodka. You are however under 21 years of age and you should not have been drinking at all. As a result of your assault of the victim, he sustained a fracture to the left jaw which caused lockjaw which he suffered for five to six weeks. The victim suffered serious injuries.

[11] According to the Pre-Sentence Report, you also swore at your victim and encouraged him to fight with him saying eke fia ulavale, sau loa la ka pigi and you swore at him saying kefe and similar such other statements. Your confrontational attitude looking for a fight no doubt because you were intoxicated was foolish. You appear to me to regret that. You regret your actions and your aggressiveness that have brought you before the Court today. I hope that if you think of threatening others to a fight again, you think about this experience and your dealings with the police, the Court and the effect that imprisonment will have on your life. For most people who appeared before the Court for assault causing grievous bodily harm, imprisonment is often the outcome.

[12] You are fortunate Nayak that you have the support of your family. Your father has addressed the Court. Your grandfather has been present in the Court room and you have their support. Many of the defendants that appear before this Court do not have that support. So you should never disappoint them again or find yourself in this situation. You should follow their example and also stop drinking. Their support is important to you to make sure you do not re-offend.

Result:

[13] I accept the recommendation by the prosecution that a non-custodial sentence is appropriate in respect of the charge of assault causing grievous bodily harm. In respect of the charge of assault causing grievous bodily harm, you are convicted and sentenced to 12 months supervision on the following conditions:

(a) You are prohibited from consuming any alcohol or drugs during the supervision period;

(b) You are not to re-offend during your supervision period;

(c) You are to attend the Salvation Army program as directed by the Probation Service and any other programs directed during your supervision period; and

(d) You are to carry out 100 hours of community work as directed by the probation service.

[14] In terms of the charge of insulting words, you are convicted and sentenced to a fine of $50.00. That fine is to be paid by 4pm today. In default of payment by 4pm today, one-week imprisonment.

JUSTICE CLARKE