IN THE SUPREME COURT OF SAMOA
Police v Gaga [2015] WSSC 4

Case name: 	Police v Gaga	
		
Citation: 	[2015] WSSC 4	
		
Decision date: 	26 January 2015	
		
Parties: 	POLICE v SAGATO GAGA	
		
Hearing date(s): 		
		
File number(s): 	S3476/14-S3477/14	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	Sentenced to 15 months supervision 
-	Ordered to pay $250 costs to the prosecution.
-	 As a special condition of his supervision, he is not to appear again at the victim’s family at Sinamoga and at Falealupo during the term of his supervision in order to avoid any further trouble from occurring.  

Representation: 	O Tagaloa for prosecution
Accused in person

Catchwords: 	causing injury with intent - being armed with a dangerous weapon- maximum penalty – reconciliation – aggravating and mitigating features – sentence 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.119(1)	
	Police Offences Ordinance 1961 s.25	
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND
SAGATO GAGA male of Sinamoga and Falealupo.

Accused

Counsel:	O Tagaloa for prosecution
Accused in person

Sentence:	26 January 2015

S  E  N  T  E  N  C  E
The charges
1. 	The accused appears for sentence on one charge of causing injury with intent, contrary to s.119 (1) 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, a stone, 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
2. 	The accused, who is originally from Falealupo in Savaii, is married to the sister of the victim.  At the time of the offending, the accused, his wife, and the victim were all living together at the victim’s family at Sinamoga.
3. 	On Thursday night 9 October 2014 at around 11pm, the victim returned home from work as a taxi driver to find the accused drinking beer with a friend in front of their family’s house at Sinamoga.  The victim told the accused that he and his friend should not be drinking at the house as their mother was sick and that they should go and finish off their bottles of beer at another place.  A verbal argument then ensued between the accused and the victim.  When the victim approached the accused, the latter held a beer bottle as if he was going to throw it at the direction of the victim.  The victim then punched the accused causing him to fall down.  Members of the family quickly intervened and stopped the accused and the victim.
4. 	On the following morning, Friday 10 October 2014 at around 7:00am, the victim was still sleeping when he heard someone called out to him.  He woke up and saw the accused standing at the back of the door of his room telling to him to come out of his room.  The victim ignored the accused, turned his back on the accused, and went back to sleep on his bed.  However, at that time the accused who was holding a stone approached the victim and hit the back of his head with the stone.  The victim’s vision was blurred and he was bleeding profusely from the back of his head.  The victim then got into his taxi and drove to the police station and reported this matter to the police before he went on to the hospital.  At the hospital, the victim’s head injury was stitched up and the x-ray that was taken shows a skull fracture.  In the absence of a medical report, it is not clear what type of fracture was this.  It is also not clear whether the victim was admitted or discharged from the hospital the same day.
The accused
5. 	As the pre-sentence report shows, the accused is now 36 years old.  He grew up in his village of Falealupo where he attended primary school.  He left school at Year 11 due to financial difficulties.  He then stayed home and helped out with his family’s plantation.  From 2010 – 2013, he was employed as a carpenter in a construction company.  He then stayed home to look after his six children.  He is also talented fisherman.  At the time of the offending, he was staying with his wife and children at his wife’s family at Sinamoga.
6. 	The accused is also a first offender.  The testimonials from the accused’s paternal uncle, the priest of Sinamoga, the pulenu’u of Falealupo, and the Minister of Police and Prisons show the accused to be an obedient, reliable, and hardworking person as well as a regular churchgoer.  He is also a well-loved and likeable person.  The pulenuu of Falealupo also says that the accused is the leader of the untitled men (aumaga) of their village of Falealupo.  However, the accused, like many other people, has a weakness.  When he is under the influence of alcohol, he becomes aggressive and violent.  
7. 	The accused and members of his family have also apologised to the victim and their respective apologies were accepted.  This matter has therefore been reconciled and settled within the family.  However, the victim told the probation service that he does not want the accused to appear again at their family at Sinamoga or at their family at Falealupo where his sick mother stays sometimes as there had been several incidents in the past where the accused gets drunk and becomes a nuisance to the victim’s sick mother.
The victim
8. 	The victim is 47 years old.  He is a brother in law of the accused.  Even though he has accepted the apologies by the accused and members of his family and has forgiven the accused, he does not want the accused to appear again at their family at Sinamoga or Falealupo where his sick mother stays because of previous incidents which affect his sick mother when the accused gets drunk and becomes aggressive and violent in the presence of his mother.
9. 	The victim impact report shows that for three days after the victim was assaulted, he could not go to work.  He also had to attend the hospital as an outpatient incurring expenses in doing so.  The victim impact report also states that even though the victim’s head injury has healed, his head no longer feels exactly the same.  He also still feels hurt from the insulting remarks made by the accused at him.  In this connection must be weighed the fact that the victim did punch the accused causing the accused to fall down.
The aggravating and mitigating factors
10. 	The aggravating factors of the present offending are the vulnerable situation the victim was in when attacked by the accused as the victim was lying in bed with his back turned towards the accused; the use of a stone by the accused to hit the back of the victim’s head; the nature of the injuries inflicted upon the victim including a fracture to his skull; the degree of premeditation that must have been involved; and the impact of the offending upon the victim.  The only mitigating factor relating to the offending is the provocation from the victim when he punched the accused causing him to fall down.
11. 	In relation to the accused as offender, there is no aggravating factor.  In terms of mitigating factors relating to the accused as offender, the apologies by the accused and members of his family which were accepted by the victim and the fact that this matter has been reconciled and settled within the family are mitigating factors.  So is the accused’s plea of guilty to the charges against him at the earliest opportunity.  I have decided not to treat the fact that the accused is a first offender as a mitigating factor personal to him because of what the victim says regarding his behaviour in the past when he is under the influence of alcohol.  
Discussion 
12. 	Having regard to the aggravating and mitigating factors, I have decided to give the accused one last chance to redeem himself and to turn a new leaf.  If he commits this type of offending again, then he is likely to go to prison.
The result
13. 	The accused is sentenced to supervision for a term of 15 months and ordered to pay $250 costs to the prosecution. As a special condition of his supervision, he is not to appear again at the victim’s family at Sinamoga and at Falealupo during the term of his supervision in order to avoid any further trouble from occurring.  

Honourable Chief Justice Sapolu