Police v Faiva [2022] WSSC 14 (25 February 2022)

IN THE SUPREME COURT OF SAMOA
Police v Faiva [2022] WSSC 14 (22 February 2022)

Case name:	Police v Faiva
Citation:	[2022] WSSC 14
Decision date:	22 February 2022
Parties:	POLICE (Prosecution) v JUNIOR LEMALU FAIVA a.k.a JUNIOR LANGKILDE, male of Satapuala (Defendant).
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 13 months’ imprisonment for grievous bodily harm and 2 months for being armed with a dangerous weapon. They are to be concurrent, less any time in custody. The defendant is convicted and sentenced to 9 months for burglary. For the theft charge, he is convicted and discharged as the phone was retrieved from him on the same day and returned to the wife. The two end sentences are cumulative. The defendant is to serve a total imprisonment term of 22 months’ imprisonment, less any time in custody.
Representation:	I. Tanielu for Prosecution Defendant appears in Person
Catchwords:	Grievous bodily harm – armed with a dangerous weapon – burglary and theft – multiple offences – provocation – intoxicated – custodial sentence.
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

AND:

JUNIOR LEMALU FAIVA a.k.a JUNIOR LANGKILDE, male of Satapuala

Defendant

Counsel: I. Tanielu for Prosecution
Defendant appears in Person

Date: 25 February 2022

SENTENCE OF TUATAGALOA J

1. The defendant appears for sentence on two different sets of offending to which he had pleaded guilty to:

(i) 10 June 2019 – grievous bodily harm and being armed with a dangerous weapon.

2. The defendant was charged in 2019 and remanded on bail to appear in Court but he never did and a warrant of arrest was issued. This warrant remained outstanding until the defendant was caught with his second set of offending of burglary and theft. The two sets of offending will be dealt with separately.
3. According to the summary of facts by the police, the victim of the first offending was standing with his wife on the footpath next to their car talking when the defendant was walking on the same footpath towards them. The victim was said to have told the defendant to go around the other side as there was no space for him to walk past where they were standing. The defendant turned around to walk back but as he was not happy with the victim telling him to go around the other way, he walked back with a stone in his hand and punched the victim with it on the mouth. The victim fell down and his head hit the footpath. The victim sustained a deep laceration to his right upper lip, abrasion on the right side of his forehead, and an open wound on the top right hand side of his forehead.
4. The defendant confirmed the summary of facts provided by Prosecution.
5. The defendant at the time was 18 years’ old and the victim is a 47 year old male.
6. Prosecution recommended a custodial sentence with a starting point of five years’ imprisonment identifying the following as aggravating features of the offending:
   • (i) The use of a stone;
   • (ii) The part of the body aimed at; i.e. facial area near the head; and
   • (iii) The injuries sustained by the victim.
7. The mitigating feature personal to the defendant is his young age (at the time). From the summary of facts, it seems that the defendant was provoked by the victim when he was told by the victim to walk around the other way. The victim and his wife were standing on a public footpath that the defendant himself is entitled to walk on. The footpath is for walking and yet the victim and his wife were hogging that part of the footpath by standing there talking. If anything, the victim and his wife should have allowed the defendant to walk past. The defendant could have asked them to allow him to walk through instead of resorting to violence. Although the defendant has only just pleaded guilty to this offending, some three years later, he had nevertheless taken onus of his behaviour and owned up to it.
8. Given the circumstances of this offending, I find the starting point of 5 years as recommended by Prosecution to be too high. Appropriate will be a starting point of 3 years. Less 12 months’ for his young age at the time; less 6 months for being provoked; and then a discount of 25% for his guilty plea, albeit late, of 5 months. This leaves 13 months.
9. The defendant is convicted and sentenced to 13 months’ imprisonment for grievous bodily harm and 2 months for being armed with a dangerous weapon. They are to be concurrent, less any time in custody.

(ii) 23 December 2021 – Burglary and theft.

10. The defendant is also to be sentenced for his second set of offending of burglary and theft.
11. According to the summary of facts, the defendant who at the time of this offending was 21 years’ old walked into a fenced property where a palagi couple live at Vaitele-uta. It was a Saturday afternoon, so during broad daylight and the palagi man was inside the garage when he was surprised to see the defendant walk into the garage intoxicated. The palagi man told the defendant to go away and escorted him out of the garage and went back to getting his lawn mower or weed eater ready to mow his law. The palagi man thought that the defendant had gone but instead his wife who was inside the house on her phone was shocked to see the defendant walk into the house. The wife put her phone down on a chair and tried to get the defendant to leave. She managed to get him to leave but when she walked back to pick up her phone, the phone was missing.
12. She knew the defendant had taken it. She went with her husband in their car after the defendant to get her phone and found him running on the road. The husband got out and ran after him and bystanders assisted by capturing the defendant. The phone was retrieved and returned to the wife.
13. The behaviour of the defendant, albeit drunk, shows total disregard of people’s safety, their property or that of the law. He went to someone’s home in broad daylight while people were at home. He probably thought lightly of the couple as non-Samoans thinking he could scare them.
14. The Prosecution recommends a 12 month starting point. I agree. The only mitigating feature is his early guilty plea to which I give a 25% discount of 3 months. This leaves 9 months.
15. The defendant is convicted and sentenced to 9 months for burglary. For the theft charge, he is convicted and discharged as the phone was retrieved from him on the same day and returned to the wife.

Sentence imposed

16. The two end sentences are cumulative. The defendant is to serve a total imprisonment term of 22 months’ imprisonment, less any time in custody.
    

JUSTICE TUATAGALOA