SUPREME COURT OF SAMOA
Police v Tamoto [2019] WSSC 47

Case name: 	Police v Tamoto	
		
Citation: 	[2019] WSSC 47	
		
Decision date: 	9 August 2019	
		
Parties: 	POLICE v KALATI TAMOTO male of Tufuiopa	
		
Sentencing date(s): 	9 August 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:	-	Convicted and sentenced to 18 months supervision on the conditions that:
-	That you carry out 250 hours of community work with the Samoa Victim Support Group if acceptable to the SVSG and if not, as directed by the Probation Service; and
-	You are to attend the Probation Anger Management program of not less than 8 weeks duration and such other programs as directed by the probation service. 
-	You are also ordered to pay $350.00 prosecution costs within 7 days.	
Representation: 	Q Sauaga for Prosecution
Accused self-represented

Catchwords: 	aggravating features of the offending – Anger Management program – grievous bodily harm – mitigating factors personal to the offender – mitigating features of the offending –– maximum penalty – 	
		
Words and phrases:	
	
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

KALATI TAMOTO male of Tufuiopa.
Accused

Counsel:	Q Sauaga for Prosecution
Accused self-represented

Decision:  	9 August 2019

O R A L   S E N T E N C E
Background:
[1]	Kalati, you appear for sentence on one charge that with intent to cause grievous bodily harm, you caused wounds to Kalepo Akeli a male of Tufuiopa. The maximum penalty for this offending is 10 years imprisonment. You entered a guilty plea to the charge at the first opportunity. 
The Offending:
[2]	According to the Summary of Facts accepted by you and that I found the following at the Disputed Summary of Facts Hearing: on the 25th March 2019 at around 9pm at Tufuiopa, you and your son went for a bath at a nearby river. When you return back home, you found that your mobile phone had been damaged by the victim. You became upset and went to the faleoo where the victim was sleeping. You confronted the victim and he responded by swearing at you. You then became very angry with the victim and you went towards him. At the same time, the victim came towards you. You described in your evidence that you wanted to “put the drunk to sleep” as you described in your evidence during the Disputed Summary Hearing. You struck the victim in the jaw with a very forceful slap that you described as masau. The victim fell to the ground and as he fell he struck his head on the wooden chair causing the injuries. The victim passed out. You placed a bed sheet over the victim and left with your son. The next morning, realizing the injury to the victim, you rendered assistance and for him to be taken to the hospital. 
Background of the Accused:
[3]	You are a 43 year old male of Tufuiopa. You are employed at the APEX. You are the 4th of 5 children. You completed school to year 11, worked for Yazaki for 3 years and then carried out carpentry work. You are currently employed at the APEX and earn $320 per week. You have a positive Pre-Sentence Report and which recommends that you are suitable for a community based sentence. 
[4]	You have a prior conviction in 1992 for assault and in 1998 for drunkenness. 
The Victim:
[5]	The victim is a 60 year old male of Tufuiopa. He works as a taxi driver and as I understand it, he lives with you. In his Victim Impact Report, he states that he has forgiven you long ago, he has no recollection of the incident, his strength to his body has returned and he refers to you as his brother. In his victim impact report, he expresses his forgiveness and in his own words, his love for you. He asks for an opportunity to be given to you.
Aggravating Features of the Offending:
[6]	The aggravating features of your offending are:
a)	The serious injuries suffered by the victim as set out in the summary of facts;
b)	Your assault on the victim targeted his face; and
c)	The impact of your assault on the victim in terms of his injuries as well as his vulnerability.
Mitigating Features of the Offending:
[7]	In terms of the mitigating features of your offending I accept as does Prosecution there are certain elements in mitigation of offending. These are there was an element of provocation, in that having broken your phone when you confronted the victim, he swore at you. I also take into account the assistance you rendered to the victim when you realized the harm you had caused. In the first instance, when you not having realized the injury, you placed the bed sheet over him. When you realized the next morning the potential seriousness of what you had done, you rendered assistance.
Mitigating Factors personal to the Offender:
[8]	In terms of the mitigating factors personal to you as an offender I take the following:
i.	Your genuine remorse, your apology and the reconciliation between you and the victim;
ii.	Your guilty plea.
[9]	I also take into account the positive Pre-Sentence Report that has been provided on your behalf together with the references that are set out therein. 
Discussion:
[10]	Kalati, your offending is serious because the injuries suffered by the victim are serious. It was also an act by you on a 60 year old man. On the original summary of facts before the Court which involved an assault involving punching of the victim as well as stomping on his face four times as he was on the ground. Prosecution sought a 3 years start point for sentence. Having completed the Disputed Summary of Facts and taking into account the facts that I found following that hearing, prosecution submits that a non-custodial sentence is also open to the Court. For the various factors and circumstances around your offending. 
[11]	Based on the aggravating and the mitigating factors of your offending, particularly the involving the provocation by the victim, your conduct after the incident and taking into account the nature of your assault on the victim involving one single slap on the victim’s jaw which then consequences because the victim struck his head on the chair, based on the mitigating features surrounding the offending I accept that a non-custodial sentence is appropriate. This conclusion as I stated is based on the aggravating and mitigating features of your offending and is re-enforced in my mind by the victim impact report and what the victim himself says. 
[12]	The sentence I’ll therefore impose today will be both a deterrence sentence in terms of the community work that I will be directing you to carry out but also the rehabilitation to address your issues with anger so that you can control your anger. You should be aware though that should you re-offend in a similar manner in the future, the outcome will most likely be different for you. You must ensure that you do not re-offend in a similar way in the future. I note that I have not taken your prior convictions into account as aggravating factors because they were from some years ago. You do not however get credit for your prior good character as a result. 
Result:
[13]	Kalati, in respect of the charge before the Court you are convicted and sentenced to 18 months supervision on the conditions that:
a)	That you carry out 250 hours of community work with the Samoa Victim Support Group if acceptable to the SVSG and if not, as directed by the Probation Service; and
b)	You are to attend the Probation Anger Management program of not less than 8 weeks duration and such other programs as directed by the probation service. 
[14]	You are also ordered to pay $350.00 prosecution costs within 7 days.
[15]	Please attend the programs and make the most of it so we do not see you again.
JUSTICE CLARKE