SUPREME COURT OF SAMOA
Police v Tupulua [2013] WSSC 133
Case name: Police v Tupulua
Citation: [2013] WSSC 133
Decision date: 04 November 2013
Parties: POLICE v OLEVA TUPULUA, male of Leulumoega-tuai.
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
L Taimalelagi and O Tagaloa for prosecution
T Atoa for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Auvae (unreported, 5 March 2012)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
THE POLICE
Prosecution
AND:
OLEVA TUPULUA, male of Leulumoega-tuai.
Defendant
Counsel:   L Taimalelagi and O Tagaloa for prosecution
 T Atoa for defendant 
Sentence:   04 November 2013
SENTENCE
1.	The defendant appears for sentence on a charge that he assaulted and caused grievous bodily harm to the complainant in this matter.  He is charged under the new Crimes Act 2013 section 118 (2).  Maximum penalty for that offence is 7 years in prison.  
2.	The police summary of facts which the defendant through his counsel has accepted states as follows: he is a 40 year old male of Leulumoega-tuai and Lalomanu employed unmarried no dependants.  The victim in this matter is a 30 year old matai of Nofoalii has a partner but no children.  Due to his injuries the victim no longer works.  
3.	On Friday 17 May the defendant was drinking beer near Toleafoa Faafisi store at Leulumoega-tuai.  He asked a female acquaintance if he could join her and her group of friends.  They were drinking too.  She said yes and invited him to join the group.  The group included the victim.  All of them drove up one of the access roads at Leulumoega-tuai.  And parked and consumed a large bottle of Niu Vodka.  
4.	Between 1:00 and 2:00 am on the morning of 18 May they drove back to the main road at Leulumoega-tuai.  While the car was moving the defendant punched the driver of the vehicle.  The defendant told the probation office he did that because the driver was speeding and refused to slow down.  The driver stopped the car and got out and he and the defendant had a physical confrontation.  The victim and the defendants female friend tried to intervene and must have been successful because the summary of facts then says the driver and the defendant got back into the car.  
5.	This time the defendants female acquaintance drove the vehicle.  The male driver got into the passengers seat and told the defendant he was not to come into the vehicle again.  The victim however pleaded with the driver and eventually the defendant was allowed back into the vehicle.  The defendant and the victim hopped into the back of the vehicle which appears to have been a pick-up.  The vehicle then drove towards the main road at Leulumoega-tuai and stopped at the main road where the defendants female friend told him to wait at the shop while she goes and drops the others off.  
6.	The defendant got off the pick-up holding an unopened bottle of large vailima.  He had an exchange of words with the male driver the one he had fought with earlier.  As he walked around the vehicle the victim said something to him.  This angered the defendant because he then hit the victim with the bottle of beer.  The bottle shattered and damaged the victims eye and face.  The victim was rushed to Leulumoega Hospital and from there to the national hospital and referred to the Eye Unit.  
7.	The medical report from the eye doctor states that a glass fragment was in the defendants right eye, it had cut through the muscles of the right eye.  The injury was of such a severity that the eye was beyond repair.  He underwent surgery to remove his damaged right eye that Saturday morning.  The victim spent two weeks in intensive care at the hospital.  The summary finally notes that the victim has recovered from his facial injuries and has had a prosthetic eye or a glass-eye fitted.  
8.	This offending obviously has had severe consequences for the victim.  He has lost his right eye.  Defendants counsel has emphasised the fact that there was no premeditation in the offending and that only one blow was delivered by the defendant and has asked the court to apply the approach followed in Police v Auvae (unreported, 5 March 2012).  But Auvae has no application here.  In that case there was some rationalisation available for the defendants action. And in Auvae the complainant did not lose his eye.  
9.	Here it is hard to understand the defendants actions.  He joined the drinking party of the victims group via an invitation which he solicited.  He got into an argument with the males of that group.  Firstly with the driver of the vehicle and then with the victim.  The defendant told the probation office he was so drunk he has no recall whatsoever of hitting the victim.  On those facts I can find little mitigation in the defendants conduct.  But I agree with defence counsel that his actions were impulsive and spur of the moment.  He must now face the consequences of those actions.  
10.	The offending by the defendant is aggravated by his use of a weapon namely a full large beer bottle delivered with enough force to cause it to shatter.  He delivered it to the head of the victim and there was no evidence the victim at the time was armed or in any way provoking the defendant other than making some comments towards him.  
11.	The maximum penalty for the offending is as stated 7 years imprisonment.  Considering all matters a 5 year start point is appropriate.  For your late guilty plea I will deduct one (1) year from that term leaving a balance of 4 years.  For that fact that you have a good background and you are a first offender and you have a good record of working and supporting your family, being involved in church activities as confirmed by your sister and your mother.  For those factors I will deduct 6 months from the balance of 4 years leaves 3½ years.  I accept that this matter has been settled and there has been a reconciliation and apology.  There has also been a penalty imposed by your alii and faipule or village council.  For all those factors I will deduct a further 6 months from that balance leaving a period of 3 years.  
12.	There are no other factors that need to be adjusted for in mitigation but there is one further adjustment that needs to be made.  To factor in the long term cost of the offending on the victim who has lost an eye and must live with that for the rest of his natural life and who must now take extra precautions to manage his remaining eye.  Who is now unemployed and can no longer work at his previous job because of this matter.  Whose life has been altered dramatically by a moment of alcoholic insanity.  Those things must be reflected in the courts sentence as aggravating factors unique to this case.  I will therefore for those matters add a year back to your sentence raising it to 4 years in prison.  
13.	For this matter Oleva you will be convicted and sentenced to 4 years in prison.  Your remand in custody time awaiting sentence is to be deducted from that term.  

……………………..
JUSTICE NELSON