SUPREME COURT OF SAMOA
Police v Aunuu [2013] WSSC 82

Case name:  Police v Aunuu
Citation: [2013] WSSC 82  
Decision date: 4 October 2013
Parties: 
POLICE (prosecution) and AUNUU AUNUU male of Vaoala (accused)
Hearing date(s): 
File number(s):  S1591/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
F Lagaaia and O Tagaloa
Accused in person 
Catchwords: 
Sentence, 
Words and phrases:
Causing actual bodily harm with intent, aggravating and mitigating features
Legislation cited:
Crimes Act 2013
Cases cited:
Summary of decision:

 IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NO: S1591/13

BETWEEN

P   O   L   I   C   E
Prosecution

A  N  D

AUNUU AUNUU male of Vaoala.
Accused

Counsel:	F Lagaaia and O Tagaloa for prosecution
		Accused in person
Sentence:	4 October 2013

S  E  N  T  E  N  C  E
The charge
1.	The accused appears for sentence on the charge of causing actual bodily harm with intent, contrary to s.119(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment.  He pleaded guilty at the earliest opportunity.  
The offending
2.	The accused is 22 years old.  The victim is 38 years old.  The accused is a cleaner, the victim is a busdriver.  Both are from Vaoala.
3.	According to the prosecution’s amended summary of facts, it was on Saturday night 20 July 2013 that the victim was drinking alcohol with two other men in front of a shop at Vaoala.  Around 11:00pm they decided they had consumed enough.  They then dispersed and the victim went home.  On his way home, the victim met with the accused’s younger sister and her male friend.  They had a conversation which soon turned into a heated argument.  The accused then punched the friend of the accused’s sister and swore at the accused’s sister.  The argument immediately then started again.  The victim then left and went to his house. One would have thought that the matter was going to end there. However, when the victim got to his house he picked up a bushknife and returned to where he had been arguing with the accused’s sister and her friend. The accused’s sister and her friend were no longer there.  So the victim looked for them.
4.	The accused who was at home was told by someone about the argument between the victim and the accused’s sister and her friend.  This made the accused come out of his family’s house.  He saw the victim who was at the time looking for his sister and her friend.  The victim was still carrying his bushknife.  The accused then picked up a stone and threw it at the victim.  It landed just above the victim’s left eye.  When the victim fell down, the accused’s sister and her friend who must have been close by, jumped in with sticks and hit the victim.  A neighbour who saw what was happening intervened and stopped the scuffle.  He then took the victim away and removed his bushknife.
5.	The victim was taken to the nearby house of his relative who is a medical doctor.  The following morning the victim was taken to the hospital for further medical examination.  According to the report of that medical examination, a deep jagged laceration was found above the victim’s left eye.  The x-ray that was taken showed a fragmented fractured of the left fronted skull bone which involved the left eye orbit.  
6.	A slightly different version of events was given by the accused to the probation service as it appears from the pre-sentence report.  He said that it was about 2:00am in the morning while he was in bed that he heard someone calling from the road.  He sat up and saw the victim chasing his younger sister with a bushknife.  So he rushed to the front of the house, picked up a stone, and threw it at the victim.
7.	The accused said the same thing about seeing the victim chasing his sister with a bushknife when he objected to certain parts of the prosecution’s original summary of facts. An amended summary of facts was then prepared by the prosecution. When the amended summary of facts was translated to the accused a few days later and was asked whether he confirms it, he said yes. But he did not look to be completely satisfied about something.
The accused
8.	As earlier mentioned, the accused is 22 years old.  He is single and works as a cleaner for a cleaning company.  He is a first offender and the character testimonials from his mother, village pastor and employer show him to be a person of good character.
The victim 
9.	The victim, as also mentioned earlier, is 38 years old and a busdriver.  As a result of this incident, he was not able to work for five weeks with consequential loss of wages and medical expenses to pay.  He confirms in the victim impact report that the accused and his family have apologised to him and he has forgiven the accused.  He also says that he has not suffered any psychological effects as a result of this incident.
The aggravating and mitigating features
10.	The aggravating features of this offending are the use by the accused of a stone which he threw at the victim and the resulting injuries to the victim.  However, there is also a mitigating feature relating to the offending.  The victim’s conduct was clearly provocative.  He was under the influence of alcohol.  He had an argument with the accused’s younger sister and her male friend.  He then punched the friend of the accused’s sister and swore at the accused’s sister.  He then went to his home, picked up a bushknife and returned to look for the accused’s sister and her friend.  The accused who was already in bed to sleep got to know about what the accused was doing. It provoked him into action.
11.	There is no aggravating feature in relation to the accused as offender.  But there are mitigating features personal to the accused.  He is a first offender and was a person of good character prior to the commission of this offence.  He and his family have also apologised to the victim and their apology was accepted.  The victim has also forgiven the accused.  The accused’s action was also not premeditated.  It was an instantaneous reaction when he was told about what was happening between the victim and his younger sister.  He has also pleaded guilty at the earliest opportunity.
Discussion 
12.	This was a very unfortunate situation for the accused. He was already in bed to go to sleep but he is now standing in the dock to be sentenced on a serious criminal offence because of circumstances he had not foreseen or expected.  Perhaps, if the accused had not intervened something more serious might have resulted from the victim and his bushknife.  Anyhow, the matter has now been settled between the accused and the victim.  In the circumstances, I have decided to impose a non-custodial sentence.
Result 
13.	The accused is given a suspended sentence of 7 months and ordered to pay $100 costs to the prosecution and $100 Court costs. Those costs to be paid in 7 days.

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia for prosecution