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Police v Sahib [2014] WSSC 36 (21 July 2014)

SUPREME COURT OF SAMOA

Police v Sahib [2014] WSSC 36

Case name: Police v Tauvela Sahib

Citation: [2014] WSSC 36

Decision date: 21 July 2014

Parties: POLICE (prosecution) and TAUVELA SAHIB (accused) male of Sinamoga

Hearing date(s):

File number(s): S1171/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
S J Ainuu for prosecution
T Peniamina for accused

Catchwords:

Words and phrases:
sentence, aggravating and mitigating features

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S1171/14

BETWEEN

P O L I C E

Prosecution

A N D

TAUVELA SAHIB male of Sinamoga

Accused

Counsel:

S J Ainuu for prosecution

T Peniamina for accused

Sentence: 21 July 2014

S E N T E N C E

1. The accused is jointly charged with a co-accused. The accused pleaded guilty but not the co-accused who pleaded not guilty. The matter was then adjourned without sentence being passed on the accused. This was to await the outcome of the trial of the co-accused so that if the co-accused is found guilty, he will be sentenced together with the accused. However, towards the end of the prosecution’s evidence at the trial of the co-accused, counsel for the prosecution informed the Court that they want to call the accused as a witness for the prosecution. Because of this, the trial of the co-accused was then adjourned part-heard so that the accused could be sentenced first before being called as a witness for the prosecution. I am therefore cautious about what I say in this sentencing decision. I wish to make it clear that what I say here is only for the purpose of this sentencing decision on the accused. It is not to be taken as evidence in the trial of the co–accused or a reflection in any way on the guilt or innocence of the co-accused whose trial is yet to be completed.

The charges

2. The accused appears for sentence on one charge of intentionally causing damage to property, contrary to s.184(2)(a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and one charge of being armed with a dangerous weapon, namely, stones, 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.

The offending

3. The complainant is 62 years old. She is the accused’s maternal grand-aunty. She is also the matai sao of the accused’s family at Vaimoso. The complainant and the accused’s family are nextdoor neighbours and live on the same customary land pertaining to the title Manuleleua currently held by the complainant.
4. The property that was damaged is a car which belongs to the complainant and her husband. It was a second hand car. At the time of the offending the car was not operational as it was awaiting repairs.
5. According to the prosecution’s summary of facts, on the night of Independence Day, 1 June 2013, the accused threw stones at the complainant’s car which was parked next to her house at Sinamoga causing extensive damage. The front and rear windscreens were broken into pieces. Likewise, the side windows. There were also many dents around the body of the car. The nature of the damage clearly suggests that many stones must have been thrown at the car.
6. According to the pre-sentence report, the accused had been drinking beer with a friend on the night in question. When their beers were finished, they went to a nearby store to buy a few more beers. At the store, they saw the complainant’s husband beating up one of their friends. The accused told the complainant’s husband to stop but the latter turned around and swore at the accused. According to the pre-sentence report and the written submissions of counsel for the accused, this provoked the accused who then started throwing stones at the complainant’s husband. When the complainant’s husband ran to his house, the stones from the accused continued to follow him. When he went inside his house, the stones were re-directed towards his wife’s car.

The accused

7. The accused is now 22 years old but was 21 at the time of the offending. He is single and a carpenter by trade. He is a first offender and the testimonials from his grandfather and the pastor of his church show that he had been a person of good character prior to the commission of the present offences.
8. The parents of the accused have apologised to the complainant and their apology was accepted. So this matter has been reconciled.

The complainant

9. The complainant was mentally and emotionally distressed because of the damage to her car. At the time of this incident she even became fearful for her life and personal safety. She was traumatised.
10. As the victim impact report shows, the complainant has bought another car for $6,000. She does not want her old car anymore as it reminds her of what had happened on the night of this incident. The cost of fixing her damaged car is estimated at $10,930.
11. The complainant’s husband was also psychologically affected by what happened to his family’s car.

The aggravating and mitigating features

12. There are several aggravating features of this offending. These are: (a) the extensive damage to the complainant’s car, (b) the number of stones that must have been thrown to cause that damage, (c) the high costs of fixing the damage, (d) the psychological impact of the offending on the complainant and her husband, and (e) the complete disregard and lack of respect by the accused for the matai sa’o of his family. The only mitigating feature in relation to the offending is the provocation from the complainant’s husband who had beaten up a friend of the accused and then swore at the accused when the accused told him to stop.
13. There is no aggravating feature personal to the accused but there are mitigating features. Those are: (a) the accused had been a person of good character prior to the commission of those offences, (b) the accused’s parents have apologised to the complainant and her husband and the apology was accepted so that this matter has been reconciled within the family, and (c) the accused’s plea of guilty at the earliest reasonable opportunity.

Discussion

14. I must say that the number of cases of this kind that comes before this Court where cars are damaged so an act of revenge for provocation from the owner or passenger of the car is of real concern. Because of the prevalence of this kind of offending, the Court has stated that sooner or later custodial sentences would be the appropriate judicial response. Cars are very expensive items of property and in nearly every offending of this kind, the damage to the car is excessively disproportionate to the provocation from the owner or passenger of the car to the offender.
15. In my opinion, there is a need for deterrence for this type of offending.
16. Having regard to the need for deterrence and the aggravating features of the offending, I will take 2 years as the starting point for sentence. I will deduct 2 months for the provocation by the complainant’s husband. That reduces the starting point to 1 year and 10 months. I will deduct another 4 months for the accused’s previous good character. That further reduces the starting point to 1 year and 3 months. I will deduct another 3 months for the apology by the accused’s parents and the consequential reconciliation with the complainant and her husband. That leaves 1 year. I will further deduct a 1/3 discount for the accused’s plea of guilty at the earliest reasonable opportunity. That then leaves 8 months.

The result

17. The accused is sentenced to 8 months imprisonment on the charge of intentionally causing damage to property. For the charge of being armed with a dangerous weapon, namely, stones, the accused is sentenced to 3 months imprisonment. Both sentences to be concurrent. The accused will therefore serve only 8 months imprisonment.
18. Any time that the accused has already spent in custody pending the sentence of this matter is to be further deducted from his sentence.
    

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CHIEF JUSTICE