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Police v Vailopa [2015] WSSC 219 (7 December 2015)

IN THE SUPREME COURT OF SAMOA
Police v Vailopa [2015] WSSC 219

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SEB VAILOPA, male of Fugalei.
Defendant

Counsel: F Ioane and Mr Tumua for prosecution
Defendant unrepresented

Sentence: 07 December 2015

SENTENCE

1. The defendant appears for sentence on two lots of charges. Firstly actual bodily harm on the night of Friday, 19 June 2015 in front of the RSA night club on Beach Road. Secondly on a charge of grievous bodily harm on the night of Saturday 19 September 2015 in front of the Maliumai Bar at Fugalei. And a further charge of escape from police custody on the 21^st of September 2015.
2. In relation to the first charge the evidence at trial showed the defendant and a friend hassled the complainant outside the RSA club, resulting in an argument and the defendant and his friend assaulting the complainant. Witnesses saw the assault and testified about seeing the defendant throw a bottle of beer at the complainants head and kick him while he was on the ground. As per the courts trial decision delivered orally on the 18^th of November 2015 the defendant was found guilty. The complainant was taken to the hospital that night where it was noted his jaw was fractured in two places.
3. The defendant has previous convictions for offences of violence. He served 2 years for robbery and various prison terms for other offences. That record shows probation has been tried for the defendant it has failed. No penalty is now available for you Seb but a term of imprisonment. As a particular deterrent for this defendant and a general deterrent for other young men who hang around bars and nightclubs causing trouble. Something that happens far too often these days.
4. The maximum penalty for the offending is 7 years in prison. But in the circumstances sentencing will start at 2 years. That must be upgraded to 2½ years Seb for your bad record. The only deduction I can make from that is for your young age of 21 years. For that I deduct 6 months. If you had pleaded guilty to the matter I would have made a further deduction but you did not, you had this matter go to trial.
5. So in respect of the actual bodily harm in front of the RSA the defendant is sentenced to 2 years in prison.
6. On the second incident in front of the Maliumai Bar the police summary of facts which the defendant generally accepted this morning says as follows: the victim of that matter is a 54 year old male of Fugalei and he works at the Maliumai Bar as a security. On the night of Saturday, 19 September the victim was at work. The defendant approached from the rear of the property and the victim approached the defendant and told him he was trespassing. Some words must have been exchanged between you Seb and the victim because the next thing recorded in the summary is the victim punched you. And you left the area but the victim followed you, befriended you and brought you back and walked you to the main road.
7. The summary says the victim also got some food for the defendant. But when they reached the main road and the victim turned and walked back to the Maliumai Bar the defendant assaulted him, causing the victim to fall on his back facing upward unconscious. While the victim was on the ground the defendant punched him four times and kicked him once on the jaw. But Seb disputed that and said he only delivered two punches and a kick.
8. I will accept what the defendant says for sentencing purposes. But however many punches and kicks the injuries sustained by the victim from the defendants assault was a fracture of his jaw. He also lost four (4) teeth according to his medical report. And the summary of facts from the police says the assault was only stopped when a bystander intervened and chased the defendant away.
9. The maximum for grievous bodily harm is 10 years in prison. There is no question the injuries in this case were grievous. Considering the circumstances of the matter I accept the prosecution submission to start sentencing at 4 years. Which must be uplifted to 5 years because of the defendants record and because this offending was committed while he was on bail awaiting trial for the RSA assault. From that Seb you are entitled to certain deductions which I will now make for you on your behalf.
10. For your guilty plea one-quarter of the term will deducted that is a period of 15 months, leaves a balance of 45 months. I accept the initial assault was the victim punching you first. Probably because of your drunken condition that is why you lost control and severely assaulted the victim. Drunkenness is no excuse for this offending but the provocation warrants a deduction. For that I will deduct 12 months from your sentence, leaves a balance of 33 months. As an exercise in general leniency to reflect what is contained in the pre-sentence report on you, I will deduct a further 2 months from your balance of sentence, leaves a balance of 31 months. No other deduction can be made for your matter Seb.
11. On the grievous bodily harm that occurred at Maliumai Bar convicted and sentenced to 31 months in prison.
12. The final charge of escape from the custody of the police. An appropriate term would be 6 months for that. However, I will reduce that to 3 months because you have pleaded guilty.
13. O lona uiga a tuu fa’atasi uma mataupu ia Seb, e tatau ona tuli eseese ona e eseese uma mataupu ia. Mo le mataupu lea na tulai mai luma o le RSA e 2 tausaga le faasalaga. O le mataupu i le Maliumai e 31 masina. Mo le moliaga lea o le sola ese mai le ofisa o leoleo e 3 masina le fa’asalaga. A tu’u fa’atasi uma o le aofai e te nofo sala ai i le toese mo mea uma nei e 4 tausaga 10 masina. Ae tatau ona toese mai i le taimi lena le taimi lea sa e nofo taofia ai e fa’atalitali ai mataupu ia i luma o le Fa’amasinoga. Ua e malamalama? (Defendant said yes). Fa’afetai ua maea lau mataupu Seb.
    

JUSTICE NELSON