Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Toa [2013] WSSC 71 (5 September 2013)

SUPREME COURT OF SAMOA

Police v Toa [2013] WSSC 71

Case name: Police v Toa

Citation: [2013] WSSC 71

Decision date: 5 September 2013
Parties:
POLICE (prosecution) and TOGIOLA FALEA TOA male of Sleapaga (accused)

Hearing date(s):

File number(s): S1402/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
F E Niumata for prosecution

Catchwords:

Words and phrases:
Legislation cited:
Crimes Act 2013
Police Offences Ordiance 1961

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO. S1402/13

BETWEEN

P O L I C E

Prosecution

A N D

TOGIOLA FALEA TOA male of Saleapaga.

Accused

Counsel: F E Niumata for prosecution

Accused in person

Sentence: 5 September 2013

S E N T E N C E

The charges

1. The accused Togiola Falea Toa appears for sentence on the charge of causing intentional damage to property that danger to life was likely to result, contrary to s.184 (1) (a) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment and on the charge of being armed with a dangerous weapon, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To both charges the accused pleaded guilty at the earliest opportunity.
2. Even though the expression “dangerous weapon” is not defined in the Police Offences Ordinance 1961, the piece of timber used by the accused in this case to hit the door window of the front passenger’s seat of the complainant’s vehicle was in my opinion, a “dangerous weapon” in terms of s.25 of the Ordinance.

The offending

3. It was on Saturday night 20 August 2013 at around 11pm. A function was held at the resort operated by the complainant at Saleapaga called the Manusina Beach Fales. While the function was going on, the accused and his brother were drinking at a faleoo (Samoan hut) opposite the resort. At one time the accused’s brother left the faleoo and went inside the resort as the function was still going on. He was told by the complainant to leave. He then left. Not long after, the accused’s brother returned to the resort and asked one of the guests for a cigarette lighter. The complainant again approached the accused’s brother and directed to him to leave. He left and returned to where the accused was standing on the road.
4. The complainant’s uncle who saw the accused’s brother go inside the resort then swore at the accused and his brother. The complainant approached his uncle and led him away to his (the complainant’s) Toyota Hilux vehicle and made him sit inside the front passenger’s seat. The complainant then got into the driver’s seat. As the vehicle was about to be driven off, the accused ran towards the vehicle holding a piece of timber and struck the door window of the front passenger’s seat where the complainant’s uncle was sitting. The accused struck twice. The window was shattered into pieces. The complainant then quickly drove off.

The victim impact report

5. As the victim impact report shows, the door window of the complainant’s vehicle cannot be fixed unless the entire door is replaced. This would cost $3,000. The complainant has already ordered and paid for the new door.
6. As further consequences of the accused’s action, the complainant’s vehicle is no longer safe from the rain. The complainant also has to pay for taxis to transport guests to the airport on rainy days. Furthermore, some of the resort guests left the day after this incident because they were scared that what happened might happen again.
7. The complainant also says in the victim impact report that he did not accept the attempt by the family of the accused to apologise to him as this is not the first time the accused has done this kind of thing to him and his family.

The accused

8. The accused is a 37 year old male. He is single and helps out with is parents small beach fale business. He does not smoke but drinks.
9. The accused has previous convictions in 2010 for being armed with a dangerous weapon and for uttering insulting words. In December 2012, the accused was convicted of causing actual bodily harm and being armed with a dangerous weapon and was placed on probation for twelve months. He was still serving his term of probation when he committed the present offences.
10. The father of the accused told the Court that the accused has been punished by the village council but it is not clear what that punishment was.

The aggravating and mitigating features

11. In relation to the offending, the aggravating features are the use of a piece of timber by the accused to smash the door window of the front passenger’s seat twice, the strikes were plainly aimed at the door window and the complainant’s uncle sitting inside the vehicle, the extent of the damage and the expenses needed to replace the entire door, and other consequential losses to the complainant because of the damage to the vehicle. Some of the tourists who stayed at the complainant’s resort also left the resort the next day out of fear that what had happened might happen again. It also appears that if the complainant had not quickly driven off his vehicle, something worse would have happened to the vehicle or the complainant’s uncle or both. I find no mitigating feature in relation to the offending. It is true that the complainant’s uncle swore at the accused and his brother but that was because the accused’s brother had inappropriately went into the resort while a function was held at the resort.
12. In relation to the accused as offender, his previous convictions which are of a similar nature to the present offences are an aggravating feature. The complainant also says in the victim impact report that this is not the first time the accused has done this kind of thing to him and his family. The accused was also still serving his term of probation for offences for which he was convicted in December 2012 when he committed the present offences. The only mitigating feature personal to the accused is his guilty plea at the earliest opportunity. Some deduction also has to be made for the punishment imposed on the accused by the village council although the nature of that punishment is not clear.

The decision

13. This is a case where it is appropriate to apply the totality principle because the offences of causing intentional damage to property that danger to life was likely to result and of being armed with a dangerous weapon were part and parcel of the same offending. Having regard to the maximum penalty of 14 years imprisonment for the offence of causing intentional damage to property that danger to life was likely to result, the need for deterrence, and the aggravating factors relating to the offending, I will take 12 months as the starting point for sentence. For the accused’s previous convictions, there will be an uplift of 2 months. That increases the starting point to 14 months. For the punishment imposed by the village council on the accused, I will deduct 2 months. That leaves 12 months. I will further deduct 25% for the accused’s guilty plea at the earliest convenience. That further decreases the sentence to 9 months. I have not given the accused the full 1/3 discount for his guilty plea because I am of the view that his guilty plea is not a genuine sign of remorse given his previous convictions. However, the accused’s guilty plea has saved the Court and the prosecution time and other resources.
14. The accused is sentenced to 9 months imprisonment on the charge of causing intentional damage to property that danger to life was likely to result. For the charge of being armed with a dangerous weapon, the accused is sentenced to 6 months imprisonment. Both sentences to be concurrent so that the accused will serve a total sentence of 9 months imprisonment. Any time the accused has already spent in custody is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution