SUPREME COURT OF SAMOA
Police v Eteuati [2014] WSSC 30     

Case name: Police v Fereti Eteuati
Citation: [2014] WSSC 30   
Decision date: 
Parties: POLICE (Prosecution) and FERETI ETEUATI male of Saleilua, Falealili, and Siumu.
Hearing date(s): 
File number(s): S3062/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
F Lagaaia for prosecution
Accused in person
Catchwords: 
provocation 
Words and phrases:
causing actual bodily harm, assault, mitigating and aggravating features, non-custodial sentence,  
Legislation cited:
Crimes Act 2013 s.119(1), to s.123
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S3062/13

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D:

FERETI ETEUATI male of Saleilua, Falealili, and Siumu.

Accused

Counsel
F Lagaaia for prosecution
Accused in person 

Sentence:	18 July 2014  

S E N T E N C E
The charges
1.	The accused stood trial on one count of intentionally causing actual bodily harm, contrary to s.119(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and one count of assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment.  He was found guilty as charged.
The offending
2.	On Saturday 9 December 2013, a wedding was held in the village of Saleilua, Falealili.  The accused, the victim, and other young men were drinking beer and vodka at the cooking house behind the house where the wedding was held.
3.	During the drinking session, the victim left and went to a nearby house.  Not long afterwards, the drinking session ended and the accused and the other young men also left to go home.  All of them were drunk.  On their way, they met with the victim who was also drunk.  The victim then approached the accused and punched the accused twice.  He was apparently more drunk than the accused.  A fight then started between the two men.  The other young men tried to stop the fight but could not stop it for they were also drunk.  The accused and the victim then fell down and wrestled on the ground.  The other young men were still trying to stop the fight but the accused and the victim did not listen to them.  So these other young men decided to leave the accused and the victim to themselves and left the scene.
4.	It appears that the accused got the better of the fight because the victim sustained a laceration on each eye brow.  He also suffered some back and chest pain.  The victim was taken to the Poutasi district hospital later the same night where he received two stitches on his right eye and one stitch on his left eye.  He was also given antibiotics to prevent infection and some pain reliever.  A chest x-ray revealed no abnormality.
The accused
5.	The accused is 30 years old.  He is married with one child.  He works as a carpenter.  He and the victim are also related to one another.
6.	The accused has apologised to the victim and his apology was accepted.  The accused’s family has also presented a large fine mat and $70 to the family of the victim which was also accepted.  The accused has been forgiven by the victim and his family so that this matter has been reconciled and settled.
7.	Both the accused and the victim were penalised by their village council and each of them presented five boxes of canned fish for his penalty.  Both of them also gave $1,000 to the village council.
8.	The accused had a previous conviction in 2013 for causing grievous bodily harm and was fined $400.
9.	As it also appears from the pre-sentence report, the accused has accepted the Court’s decision to find him guilty as charged and he expressed remorse to the probation service.  In fact, at trial the accused simply confirmed having caused the injuries sustained by the victim in their fight.  But he said it was the victim who started the fight. 
The victim 
10.	The victim is 40 years old.  As it appears from the pre-sentence report, he confirmed to the probation service the apology made to him by the accused which he accepted so that the two men have reconciled.  The victim also told the probation service that he wants the charges against the accused to be withdrawn.
The aggravating and mitigating features
11.	In relation to the offending, the aggravating features are: (a) the injuries to the victim, and (b) the failure of both the accused and the victim to stop fighting as the other men were trying to stop the fight.  The one mitigating feature of the offending is that it was provoked by the victim who first punched the accused twice.
12.	In relation to the offender, the only aggravating feature is his previous conviction in 2013 for causing grievous bodily harm for which he was fined $400.  On the other hand, the mitigating features personal to the accused are: (a) his apology to the victim which was accepted, (b) the apology by the accused’s family to the victim’s family which was also accepted, (c) the fact that at trial the accused in his oral testimony confirmed the accusations against him though he thought he was innocent because it was the victim who started the fight, and (d) the penalty imposed by the village council on the accused.
Discussion 
13.	After taking into consideration all the aggravating and mitigating features, I have decided to impose a non-custodial sentence.  As the accused’s previous offending in 2013, like his present offending, was committed while the accused was under the influence of alcohol and therefore was incapable of responding peacefully to provocation, the sentence I am about to impose should address this issue.
The result 
14.	For both counts against the accused, he is sentenced to 9 months probation.  As special conditions of his term of probation, he is to refrain from consuming alcohol during his probation and he is also to undergo any alcohol management programme offered by the probation service.

-----------------------------
CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution