Police v Togialelei [2022] WSSC 28 (21 June 2022)

SUPREME COURT OF SAMOA
Police v Togialelei [2022] WSSC 28

Case name:	Police v Togialelei
Citation:	[2022] WSSC 28
Decision date:	21 June 2022
Hearing date:
Parties:	POLICE v FEALOFANI TOGIALELEI male of Magiagi and Manono
File number(s):	.S1114/21, S1117/21.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	JUSTICE FEPULEA’I A. ROMA
On appeal from:
Order:	Convicted and sentenced to 18 months’ supervision, with a condition that you complete 80 hours of community work.
Representation:	I.Atoa for Prosecution L. Su’a-Mailo for Defendant
Catchwords:	aggravating factors –being armed with a dangerous weapon –causing grievous bodily injury – maximum penalty – mitigating factors
Words and phrases:	Pleaded guilty to the earliest opportunity –
Legislation cited:	Crimes Act 2013 s.119 (2), Police Offender Ordinance 1961 s.25
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v FEALOFANI TOGIALELEI male of Magiagi and Manono.
Defendant

Counsel:
I.Atoa for Prosecution
L. Su’a-Mailo for Defendant

Sentence: 21 June 2022

SENTENCING OF JUSTICE ROMA

Charges

[1] You appear for sentence on 2 charges – (i) of causing grievous bodily harm or injury under s118 (2), Crimes Act 2013. The maximum penalty is 7 years’ imprisonment; and (ii) of being armed with a dangerous weapon under s25 Police Offences Ordinance 1961 which carries a maximum penalty of 1-year imprisonment.

[2] The original charge was that of causing grievous bodily harm or injury under s118(1) which attracts a maximum penalty of 10 years imprisonment. The record shows that you pleaded guilty to the original charges at the earliest opportunity on the 5^th July 2021. You were subsequently assigned counsel under legal aid and after consulting counsel, you maintained your guilty pleas.

[3] Following several adjournments over a disputed summary of facts, the charge was amended to that of the lesser grievous bodily injury under s118(2) which attracts a 7 years maximum term of imprisonment. Rather than transfer you for sentence in the District Court and thereby prolonging the proceedings, I decided to sentence you in this court.

Offending

[4] The charges arise out of an incident at Magiagi in the early hours of the 12^th June 2021. You had been drinking with the victim at your house starting from late the previous evening. About 4am the next morning, your father came to where you were drinking. He dropped his container of smokes causing the victim to say something about him that made you upset. In turn you said something about the victim’s father before you engaged in a fist fight.

[5] Your father tried to intervene but you continued into the house throwing punches at each other. Your father then called your mother to come and assist break up the two of you. During the struggle, you managed to pick up a small kitchen knife that was lying on the table. At the same time the victim charged towards you and fell onto a nearby bed. The police summary says that you then fell on top of the victim with the knife in your hand causing him the following injuries - (i) an incision on his right upper back; (ii) an incision on his lower back, both being significant injuries; and (iii) fractures to his right 6^th, 7^th, 8^th and 9^th ribs. Your parents were able to stop the fight and reported the matter to police.

[6] The summary by police downplays your culpability and suggests that you accidentally inflicted the victim’s injuries when you fell onto him whilst holding the knife in your hand. I do not accept that suggestion because (i) the medical report dated 16^th June 2021 clearly states under Dr Posini’s diagnosis that the victim suffered ‘multiple stab wounds.’; and (ii) you specifically told Probation and I acknowledge your favour that you used the knife and ‘stabbed the victim at the waist.’ You also told Probation about the significant volume of alcohol that you both consumed including a large and a small bottle of the recently banned rover vodka.

The Victim

[7] The victim is 20 years of age. You are first cousins, your mother being a sister of his father. In the victim impact report, he says that he was hospitalised for just over a week and has since fully recovered. He does not suffer any permanent injuries. He says that he has not suffered mentally. He confirms that you have apologised with your parents and that things have been settled within your family and are back to normal.

Aggravating factors

[8] In relation to the offending, the aggravating features are:

(i) the use of the weapon, that being a kitchen knife. I bear in mind however that you did not go back to get the kitchen knife, but that you managed to get a hold of it when your fight and struggle moved inside the house;

(i) (ii) the serious injuries caused to the victim - as I have said before, he suffered 2 stab wounds on the lower and upper right back and fractures to the 6^th, 7^th, 8^th and 9^th ribs;
(ii) (iii) the vulnerability of the victim given your use of a weapon.

Mitigating factors

[9] Personal to you as offender I consider the following factors:

(i) Your guilty pleas to both charges entered at the earliest opportunity;

(ii) The apology and reconciliation;

(iii) Your personal circumstances – you are 20 years of age and single. You ended your formal education at Year 11 Level at Avele College. You are now employed as a plumber but have worked the plantation in the past to assist your parents and family. I have read the testimonials by your employer and Pastor Sione Ausage of the Seventh Day Adventist Church, Magiagi. They speak highly of your character. I have also read the statements by the victim and his father, your uncle. They confirm the reconciliation and seek that you be spared a custodial sentence. Looking at the material before me, I accept that your behaviour was out of character. I also accept that you are genuinely remorseful. You have successfully completed the Salvation Army 6 weeks’ psychoeducation Alcohol and Drugs Group programme. You are a first offender.

Discussion

[10] Prosecution is seeking a custodial sentence with a starting point of 3 and a half years. I have considered their submissions and all the cases cited therein. I have also considered your counsel’s submissions in mitigation of sentence and the cases that she relies on. I need not refer to those cases.

[11] This is another drinking session that went on for far too long and obviously ended badly. Though serious injuries were inflicted, the impacts are less serious compared to other cases that have come before the court.

[12] You are a young man appearing in Court for criminal offending for the first time. You have accepted responsibility and taken steps to address a significant factor in your offending and to become better. For that reason and many others in your favour which I have referred to, I have decided to give you another chance. But you must make good use of the opportunity. Second chances do not come around too often.
Result

[13] On the charge of causing grievous bodily harm and charge of being armed with a dangerous weapon, you are convicted of both and sentenced to 18 months’ supervision, with a condition that you complete 80 hours of community work.

JUSTICE FEPULEA’I A. ROMA