Police v Mafuatu [2023] WSSC 46 (3 August 2023)

SUPREME COURT OF SAMOA
Police v Mafuatu [2023] WSSC 46

Case name:	Police v Mafuatu
Citation:	[2023] WSSC 46
Decision date:	3 August 2023
Parties:	POLICE v EPI FILI MAFUATU
Hearing date(s):	3 August 2023
File number(s):	2023 - 01564
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE PERESE
On appeal from:
Order:	Sentenced to 12 months’ supervision and direct that you carry out 40 hours of community service, and I direct that you are to complete an Anger Management Programme as determined and assigned by Probation. Time taken held in custody is also taken into account.
Representation:	M T Fesili and F Kolia for Prosecution Accused in person
Catchwords:	armed with a dangerous weapon – grievous bodily harm – guilty at the first available opportunity – mitigating factors – sentencing submissions – sentence – anger management plan – community work
Words and phrases:
Legislation cited:
Cases cited:	Police v Alofaifo Police v Evalu and Aliitavini Police v Vaisola
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

AND:

EFI PILI MAFUATU male of Saina and Faiaai, Savaii.
Accused

Counsel:
M T Fesili and F Kolia for Prosecution
Accused in person
Date: 3 August 2023

ORAL SENTENCE OF PERESE CJ

1. The defendant Efi Pili Mafuatu appears today for sentencing in relation to two counts. First is a charge of grievous bodily harm; the second is a charge of being armed with a dangerous weapon, namely a piece of timber.
2. The defendant is a 29-year-old male of Saina and Faiaai, Savaii. He is presently employed by Ah Liki Wholesale at Vaitele-tai.
3. I have had regard to the sentencing submissions prepared by the office of the Attorney General, the victim’s impact report and the probation report, prepared by Ms Chu Koon dated 3 July 2023. I’ve also had the opportunity to hear from the defendant this morning. He expresses that he is the sole bread-winner for his family - his mother and his sister, and he asks for leniency and promises that he won’t come back before the court again. He also notes that he has been held in custody in relation to the charges.
4. The Summary of Facts is agreed to and the events of the day are as follows:
   1. The victim is a twenty-five (25) years old male of Falelauniu-tai. At the time of the offending, he was employed at the Ah Liki Wholesale at Vaitele-tai.
   2. The defendant and the victim are co-workers of Ah Liki Wholesale.
   3. On the 26^th may 2023 at Vaitele tai around 7am the victim went to work at Ah Liki Wholesale whilst intoxicated. At the time, the defendant was also at work.
   4. Whilst at work, the victim made jokes at the defendant namely, “ka fia lamulamu ia oe” and “uso, ailoga e eke aulia le kaimi magava”
   5. This made the defendant angry at the intoxicated victim.
   6. Between 3pm and 4pm the victim was staking snack boxes on shelves with a colleague within the wholesale premises.
   7. At the time, the defendant armed himself with a piece of timber and approached the victim.
   8. Upon reaching the victim, the defendant struck the right side of the victim’s face with the said piece of timber.
   9. As a result, the victim fell backwards and hit the back of his head on the floor and lost consciousness.
   10. The defendant then threw away the piece of timber and left the scene.
   11. The victim’s relatives escorted the victim to the hospital for treatment on the following day.
   12. The victim’s relatives then report the matter to Police.
   13. According to the medical report, the victim sustained the following injuries:
       • (i) Tenderness on right side of jaw’
       • (ii) Small laceration on right ear; and
       • (iii) Right mandible fracture
   14. On 2^nd June 2023, the defendant was apprehended and taken to Faleata Police Outpost where he was cautioned and interviewed accordingly.
   15. On 19^th June 2023 at Mentions, the defendant pleaded guilty at the first available opportunity to the two charges for which he is to be sentenced today.
5. On further questioning from the court, it appears that the defendant armed himself with a piece of timber from a pallet which was inside of the wholesale premises where he was working. Any suggestion that he left his work area to obtain a piece of wood would be wrong. As I say it appears that the wood was already there when he reacted to the victim’s taunting, more fully set out in page 3 of the probation report. The probation report account explains the defendant became enraged by the victim’s numerous statements and he reached for the wood and hit the side of the victim’s face before walking outside. I should note that the defendant has expressed profound regret to probation in relation to his actions.
6. Insofar as the taunting is concerned, I note the police’s sentencing submissions describe the words used by the victim as provocative and they were threatening and unpleasant. And the police say that this is properly to be taken into account as a mitigating factor to the offending. The defendant’s guilty plea the prosecution also submits is a also a mitigating factor.
7. Prosecution properly points out that there are concerning aspects to this offending; the use of a weapon, an attack to the head, and almost if you will a vigilante type action because it was possible for the defendant to have sought assistance from more senior people to come to his aid. However, I consider that even when one takes into account the various Taueki factors that this would be very much at the lower end of Band one offences.
8. I further note that the prosecution’s memorandum has very helpfully placed before the court three cases which are of similar ilk to the present case. These cases suggest that in Samoa the range of penalties for these types of offences include, where appropriate, non-custodial sentences.
9. The matter of Police v Alofaifo where the victim was hit with a two-by-four piece of timber and a number of blows was delivered by the accused, the blow was aimed at the victim’s head and injuries was sustained by the victim. In that case the defendant was convicted and sentenced to 12 months’ supervision on the condition that he attend a probation service Anger and Alcohol Management Programme and to perform 40 hours of community service.
10. Similarly, in the matter of Police v Evalu and Aliitavini this was an attack by the two defendants on the victim; a weapon was used, timber, and injuries were sustained by the victim especially to his head. In that case both the accused or defendants were convicted and sentenced to 80 hours’ community service and 12 months’ supervision.
11. And the final case referred to by the prosecution is Police v Vaisola. The victim appears to have been hit by a piece of timber as he was working. The victim didn’t do anything to provoke the attack but he was hit by a piece of timber causing him injury. In that case the defendant was sentenced to supervision for 12 months and a special condition of sentence was that he was to attend Anger Management.
12. In this case I consider the appropriate sentence is a non-custodial sentence and such sentence should be for a period that is sufficient for this defendant to undergo Anger Management Programme by Probation as recommended by Probation and for the defendant to carry out some community work. Because, there is no excuse for what he has done. Whatever the taunting may have been, that defendant has nevertheless hit somebody else with force with a piece of wood causing that person to fall backwards onto the concrete floor perhaps, and then the defendant did not offer to give any assistance to the victim as to the injuries that may have been caused to him.
13. Before I pass sentence I note that there is a previous for possession of a weapon I think that was back in 2011; I do not consider that is appropriate to take that particular offending into consideration in the passing of the sentence in this case.
14. I also want to note that the defendant has a very positive report from his employer. And that is to his credit. He is described as a reliable person who is highly trusted and dependable by his supervisors regarding his work ethic over the years and he jells along with other co-workers and has never been disciplined throughout the past years. I take from that that this is a one-off and an extraordinary act on his behalf, no doubt the provocation has had a significant part play in it but, nevertheless as I say, that does not allow the defendant to hit somebody with a piece of wood and then walking away leaving that person effectively to fend for themselves if it was that possible.

Result

15. I don’t want to see you back here before the Court. You are a good strong young man. You need to get on and look after your mother and your sister.
16. I’m going to sentence you to 12 months’ supervision and direct that you carry out 40 hours of community service, and I direct that you are to complete an Anger Management Programme as determined and assigned by Probation. Time taken held in custody is also taken into account.

CHIEF JUSTICE