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Police v Aiafi [2013] WSSC 59 (13 September 2013)

SUPREME COURT OF SAMOA

Police v Aiafi [2013] WSSC 59

Case name: Police v Aiafi

Citation: [2013] WSSC 59

Decision date: 13 September
Parties:
POLICE (prosecution) and PEPE AIAFI aka FIALOGO LOLOGA

Hearing date(s): 12 September 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
L Su’a and O Tagaloa for prosecution

Catchwords:
Words and phrases:
Grievous bodily with intend to do so
Aggravating and mitigating features

Legislation cited:
Crimes Act 2013
Police Offences Ordinance 1961

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S

BETWEEN

POLICE

Prosecution

AND

PEPE AIAFI aka FIALOGO LOLOGA female of Salelologa and Aleisa.

Accused

Counsel: L Su’a and O Tagaloa for prosecution

Accused in person

Sentence: 13 September 2013

SENTENCE

The charges

1. The accused Pepe Aiafi aka Fialogo Lologa of Salelologa appears for sentence on one count of causing grievous bodily with intent to do so, contrary to s.118(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, one count of causing actual bodily with intent to do so, contrary to s.119(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one count of being armed with a dangerous weapon, namely, a cutter, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To all three counts, the accused pleaded guilty.

The offending

2. As the prosecution’s summary of facts shows, on Thursday afternoon 20 June 2013 at around 5:00pm, the victim was on her way on a bus to her home at Alesia when she received a call on her mobile phone from the accused asking for her whereabouts. The victim told the accused that she would arrive at Aleisa shortly.
3. When the victim arrived at Aleisa, the accused was already waiting for her. The victim got off the bus, walked towards the accused, and asked the accused why she was looking for her. The accused immediately punched the victim on the nose. A fight then ensued between the accused and the victim. During the fight, the accused grabbed a blade cutter and slashed the victim’s neck resulting in bleeding from the victim’s neck. Eventually, the victim managed to break loose. At that time, the accused slashed the victim twice on her left hand. The victim’s in laws arrived in time and stopped the fight. The victim was immediately taken to the hospital for treatment.
4. According to the medical report on the victim given to the police, the victim sustained the following injuries: a large circumferential incisional laceration on the left arm which required thirty stitches and a large incisional laceration covering the entire aspect of the left neck. The neck injury was quite worrisome because if it had been a couple of millimetres deeper, the victim would have likely to bleed to death.
5. In the pre-sentence report, the accused told the probation service that when the victim arrived in the bus, she was waiting for her in front of the LMS church at Aleisa. When the victim got off the bus she went straight to her and so the fight started. She pulled and dragged the victim’s hair and at the same time she took out the cutter that was inside the pocket of her pants and slashed the victim. The accused also told the probation service that what provoked this incident was the victim spreading rumours on her face book that the accused is a prostitute. The victim, on the other hand, told the Court that the accused had also spread similar rumours about her. This kind of rumour spreading or gossiping in our community has been the cause of so much trouble which has sometimes ended in violence.

The accused

6. The accused is 24 years old as shown from the pre-sentence report. She is from Salelologa and lives with her partner at her partner’s family at Aleisa. She has had a reasonably good education having reached the UPY programme at the National University of Samoa. At present, she stays at home and performs domestic chores while her partner goes to work.
7. The accused is not a first offender. She has previously pleaded guilty to seven counts of theft as a servant and five counts of false accounting under the name “Fialogo Lologa”. She was supposed to appear on Monday 25 March 2013 for sentence but she failed to do so. A warrant was therefore issued for her arrest. She has also been in breach of the reporting condition of her bail for this matter. The probation service has been trying unsuccessfully to obtain a character testimonial for the accused from her family. There is also no character testimonial from anyone else. She pleaded guilty after two opportunities were given to her to engage counsel but she could not find counsel to act for her. Even though the accused told the probation service that she, her mother, and some relatives had been to the victim and apologised to her, the victim says in the victim impact report that the accused has not apologised to her. I have decided to believe the victim given that the accused has misled the Court that she is not the same person as “Fialogo Lologa” but when the prosecution was ready to call evidence to prove that she is the same person as “Fialogo Lologa” she changed her mind and admitted that she is the same person as “”Fialogo Lologa”.

The victim

8. The victim is 26 years old. She is from Sogi but stays with her husband at her husband’s family at Aleisa. She is married with one child. She stays home and performs domestic chores.
9. The victim impact report shows that as a result of the injuries inflicted on the victim, she was not able to move around properly or care for her baby for two weeks. There are now scars on the parts of her body which were injured by the accused. When the victim looks at these scars, it reminds her of what the accused had done to her and makes her very angry.

The aggravating and mitigating features

10. In relation to the offending, there are several aggravating features. The use by the accused of a cutter to slash the left side of the victim’s neck and then her left arm was particularly dangerous. The injury to the victim’s neck could have been fatal if it had gone slightly deeper. There was also a high degree of pre-meditation. When the accused called the victim on her mobile phone as to her whereabouts, she must have already made up her mind to assault the victim which was what happened when the victim got off the bus at Aleisa. The accused was also already armed with a cutter with which she must have intended to inflict injuries on the victim. The scars on the victim resulting from the assault by the accused and the other consequences of that assault on the victim are also aggravating features of this offending. I would not, however, consider the rumours spread by the victim about the accused being a prostitute as a mitigating feature of the offending. This is because the accused had also spread similar rumours about the victim as the latter told the Court. Thus, the conduct of each of the accused and the victim was provocative of the other.
11. In relation to the accused as offender, the only mitigating feature is her plea of guilty.

The decision

12. Having regard to the need for deterrence in this type of case, as well as the aggravating and mitigating features relating to the offending, I will take 3 years as the starting point for sentence in relation to the offence of causing grievous bodily with intent to do so. I will deduct a 1/4 discount or 25% for the accused’s guilty plea. That leaves 2 years and 3 months. The accused is sentenced to 2 years and 3 months imprisonment on the charge of causing grievous bodily harm with intent to do so.
    13. For the charge of causing actual bodily harm with intent to do so, the accused is also sentenced to 2 years and 3 months imprisonment. For the charge of being armed with a dangerous weapon, the accused is sentenced to 7 months imprisonment. All sentences are to be concurrent so that the accused will serve 2 years and 3 months imprisonment.
    14. There is to be no deduction for the 3 days that the accused was remanded in custody for the prosecution to call evidence to prove that the accused is in fact the same person as “Fialogo Lologa”.
        

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution