Police v Ualesi [2022] WSSC 70 (17 August 2022)

IN THE SUPREME COURT OF SAMOA
Police v Ualesi [2022] WSSC 70 (17 August 2022)

Case name:	Police v Ualesi
Citation:	[2022] WSSC 70
Decision date:	17 August 2022
Parties:	POLICE v DUNCAN APIU TUALA UALESI male of Nono’a Saleimoa
Sentencing date(s):	17 August 2022
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE TAFAOIMALO TUALA-WARREN
On appeal from:
Order:	- He is therefore convicted of causing grievous bodily harm and sentenced to 10 months imprisonment. - For the armed charged he is convicted and sentenced to 4 months imprisonment to be served concurrently. - Time spent in custody to be taken away.
Representation:	I Tanielu for Prosecution Accused Unrepresented
Catchwords:	one charge of being armed with a dangerous weapon; one charge of causing serious bodily injury with intent.
Words and phrases:	the accused hit the victim with a stone on the head 3 times; the victim sustained a fractured jaw and a swollen face; he was drinking Rover vodka at the time of the offending; Pursuing the victim as he ran away; The use of a rock; He attacked the head of the victim while he was unconscious and defenceless; The extent of the injuries sustained by the victim and its long term effects as the father of the victim has said his son is slower in his responses; Voluntarily turning himself into Police;
Legislation cited:	Crimes Act 2013, Police Offences Ordinance 1961.
Cases cited:	Tele’a v National Prosecution Office [2017] WSCA 4 (31 March 2017);
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

DUNCAN APIU TUALA UALESI male of Nono’a Saleimoa.
Accused

Counsel: I Tanielu for Prosecution

Accused Unrepresented

Sentence: 17 August 2022

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of causing serious bodily injury with intent pursuant to section 118(1) Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment, and one charge of being armed with a dangerous weapon pursuant to section 25 of the Police Offences Ordinance 1961 which carries a maximum penalty of 1 year imprisonment.
2. On 18 July 2022, the accused pleaded guilty to the charges.

The offending

3. According to the summary of facts accepted by the accused, on 3 March 2022, the accused, victim and a mutual friend who had been drinking alcohol left the drinking session and walked along the road. The accused suddenly punched the victim on the jaw causing the victim to fall down and become unconscious. While the victim was on the ground unconscious, the accused hit the victim with a stone on the head 3 times. As a result, the victim sustained a fractured jaw and a swollen face. Bystanders assisted the victim and reported the matter to the Police.

The accused

4. The accused is 23years old. He is single and lives with his aunty. He makes a living as a labourer earning $100 per week.
5. He is a first offender.
6. He says that he was drinking Rover vodka at the time of the offending. He says that the victim had on a previous occasion punched him on the face. He says that he and the victim were both heavily intoxicated and were arguing. He says he victim threw the first punch then ran away. He chased him down and tackled him then stood on his neck. He says he saw that the victim was unconscious so he picked up a rock and hit the back of his head 3 times, then rolled him onto his back and hit the victim on the mouth with the rock. He then moved the victim closer to the road and swore so that people walking past would be alerted to the victim and help him. He walked away and was going to the Police station to report what happened. He found a relative who took him in his taxi to the Police station.
7. His religious and village leaders have said that he is reliable and trustworthy within the church and village.

The victim

8. This victim is 31 years old, single and unemployed.

Aggravating features of the offending

9. The aggravating features of this offending are;
   • Pursuing the victim as he ran away;
   • The use of a rock;
   • He attacked the head of the victim while he was unconscious and defenceless; and
   • The extent of the injuries sustained by the victim and its long term effects as the father of the victim has said his son is slower in his responses.

Mitigating Factors

10. The mitigating factors in favour of the accused are;
    • His age of 23 years;
    • His previous good character;
    • Voluntarily turning himself into Police; and
    • His early guilty pleas.

Discussion

11. The Tele’a v National Prosecution Office [2017] WSCA 4 (31 March 2017) case helpfully set out bands for the offence of grievous bodily harm;

27. Taueki was a significant decision both for its methodology and for the guideline bands it provided. The methodology was usefully summarised in Attorney General v Matalavea at [15] as follows:

In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances, before turning to those factors as well as others relied on in mitigation.

28. For intentional grievous bodily harm, the starting point in Taueki was to be taken from a system of three bands of ascending seriousness:

(a)Band one: 3-6 years;

(b)Band two: 5-10 years;

(c) Band three: 9-14 years.

29. Explaining Band One, the Court in Taueki said this:

Band one [36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at [27] above. Where none of the aggravating factors referred to in [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.

12. Prosecution has recommended an imprisonment term with a starting point of 5 years.
13. This is yet another case of alcohol induced violence. Intoxication is not a mitigating factor. The Court has commented on this numerous times. I commend the move by the Liquor Board to ban Rover vodka amongst other locally produced vodka.

Sentence

14. Having regard to the aggravating features relating to the offending, I place this offending in Band one of Taueki and take 4 years imprisonment as a starting point for sentence for the offence of causing serious bodily injury with intent.
15. I deduct 10 months for his age, 10 months for his previous good character, 8 months for voluntarily turning himself into Police, and 10 months for his early guilty pleas.
16. He is therefore convicted of causing grievous bodily harm and sentenced to 10 months imprisonment.
17. For the armed charged he is convicted and sentenced to 4 months imprisonment to be served concurrently.
18. Time spent in custody to be taken away.

JUSTICE TUALA-WARREN