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Police v Lupesoliai [2015] WSSC 93 (4 September 2015)

SUPREME COURT OF SAMOA
Police v Lupesoliai and Masi [2015] WSSC 93

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE Nos: S2117/15, S2116/15

BETWEEN

P O L I C E
Prosecution

A N D

LATINO LUPESOLIAI and FEILOAIGA TUSITALA MASI both males of Siusega and Aufaga, Aleipata.
Accused

Counsel:
K Hogan for prosecution
Accused in person

Sentence: 4 September 2015

S E N T E N C E

The charges

1. The accused Latino Lupesoliai (Latino) and Feiloaiga Tusitala Masi (Feiloaiga) are 48 and 30 years old respectively. They are uncle and nephew. Latino is a brother of Feiloaiga’s mother. They appear for sentence on one joint charge of causing grievous bodily harm with intent to do so, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment; one joint charge of causing actual bodily harm with intent to do so, contrary to s.119 (1) of the Act, which carries a maximum penalty of 7 years imprisonment; and one joint charge of being armed with a dangerous weapons, namely, stones, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To all three charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The victim and the two accused are neighbours at Siusega. They are also related. The victim has a rubbish bin in front of his house for the use of his own family. On 8 June 2015, between 5:00pm and 6:00pm, he was at home cooking dinner for his family when he saw the accused Feiloaiga walked over to his rubbish bin and dump his rubbish there. This made the victim angry as this was not the first time Feiloaiga had dumped his rubbish in the victim’s rubbish bin. The victim then came out of his house and confronted Feiloaiga who answered back. A verbal argument ensued between the two men which made the victim more angry. The victim then went back to his house, armed himself with a kitchen knife, and approached Feiloaiga who responded by throwing rocks at the victim. The victim then chased Feiloaiga all the way to the Princessa supermarket where the accused Latino was.
3. Upon seeing his nephew Feiloaiga being chased by the victim holding a knife, Latino picked up a rock and hit the head of the victim with it. The victim then stabbed Latino with the kitchen knife several times before the accused Feiloaiga attacked the victim with rocks and wrestled the knife from his grasp. Latino told the Court that he sustained injuries to the left side of his abdomen and his left upper arm when he was stabbed by the victim. Feiloaiga told the probation service that he threw stones at the victim and wrestled the knife from him in order to save his uncle from the attack by the victim. However, both accused continued to assault the victim when he was on the ground and no longer posed a threat to any of them.
4. When the victim fell to the ground, the two accused kicked and hit him with rocks until he fell unconscious. A few minutes later the victim regained consciousness and made his way back to his house. He was then taken to the hospital where he was found upon medical examination to have sustained cuts to the back of his head.

The victim

5. As the victim impact report shows, the victim suffered four to five cuts to the back of his head as a result of this incident. He is 44 years old and unemployed. He and the accused are neighbours and are also related. The victim says that the accused are truly remorseful. They have apologised to him and he has accepted their apologies. This matter has therefore been settled and the victim has asked the probation service to have the charges against the accused withdrawn.

The accused

6. The accused Latino as earlier mentioned is 48 years old. He works on his family’s plantation and lives with his family on their freehold land at Siusega. He is a solo father and lives with his two young sons who are dependent on him.
7. Latino’s older sister told the probation service that her brother is a helpful, reliable, and hardworking member of their family. Her parents depend on Latino for their family’s plantation. The testimonial from the pastor of Latino’s church shows him to be an honest, dependable, and supportive member of his church. He is also a first offender. He has apologised to the victim and has pleaded guilty to the charges against him at the earliest opportunity.

The accused Feiloaiga

8. As mentioned earlier, the accused Feiloaiga is 30 years old. He is married with three young children. He lives with his family and his mother on their freehold land at Siusega. He works as a baker during the day and as a security officer at night for the Princessa supermarket at Siusega. He is the sole provider for his family.
9. In a meeting with the probation service, Feiloaiga’s mother attested to her son’s admirable role in the developments within their family and in carrying out his responsibilities as a father to his children. The testimonial from the pastor of Feiloaiga’s church shows that he is an honest and supportive member of his church. The testimonial from Feiloaiga’s employer shows him as a hardworking employee who gets on well with his fellow employees and he has been promoted to become team leader in his employer’s bakery. Feiloaiga is also a first offender.

The aggravating features relating to the offending

(a) Number of assailants

10. The fact that this was an assault by two men on the victim is an aggravating feature relating to the offending.

(b) Vulnerability of victim

11. The victim was in a particularly vulnerable position when he fell down and the accused continued to kick and hit him with rocks (stones) until he became unconscious. This is also another aggravating feature of this offending.

(c) Use of stones

12. The use by the accused Latino of a stone to hit the victim’s head and the use by the accused Feiloaiga of rocks (stones) to attack the victim as well as the use by both accused of rocks (stones) to hit the victim while on the ground is another aggravating feature relating to the offending. It would also appear from the location of the cuts on the back of the victim’s head that some of the rocks were aimed at his head.

(d) Injuries to the victim

13. The victim’s momentary unconsciousness and the four to five cuts on the back of his head is also an aggravating feature relating to this offending. However, it is not clear whether the cuts on the back of the victim’s head amounted to actual or grievous bodily harm. This is important because the accused are both charged with causing actual bodily harm and with causing grievous bodily harm.

The mitigating features relating to the offending

Provocation

14. The use by the victim of a kitchen knife to chase the accused Feiloaiga was not only provocative to Feiloaiga but to the accused Latino who was at the Princessa supermarket when he unexpectedly saw his nephew being chased by the victim holding a knife.
15. The use by the victim of the knife to stab Latino several times resulting in injuries to Latino’s left abdomen and left upper arm was highly dangerous and provocative in respect of Latino. It was also highly provocative in respect of Feiloaiga when he saw his uncle being stabbed several times by the victim causing injuries to his uncle. Feiloaiga told the probation service that the reason why he attacked the victim with stones was to defend his uncle. All of this is a mitigating feature relating to the offending.

The mitigating features relating to the accused as offender

(a) Previous good character

16. Both accused are first offenders and their character testimonials show that they had been persons of good character prior to the commission of these offences.

(b) Apologies and reconciliation

17. The accused and the victim are neighbours and are related to one another. The accused have apologised to the victim and their apologies were accepted. This matter has therefore been settled and reconciled. The request by the victim to the probation service to withdraw the charges against the accused is testimony to that reconciliation.

(c) Early guilty plea

18. The pleas of guilty by the accused at the earliest opportunity is an important mitigating feature relating to each of them as offender.

Discussion

19. This offending arose from the use of a rubbish bin. The accused Feiloaiga had several times used the victim’s rubbish bin to dump his rubbish without permission from the victim. It led to this offending which has landed both accused in Court. The matter has been settled and reconciled. But to avoid any further trouble reoccurring in the future, Feiloaiga should have his own rubbish bin where he can dump his own rubbish. He has a good job as a baker and as a security officer and should be able to afford a rubbish bin for his own family. All the parties have been at fault but the cause of this incident was the frequent use by Feiloaiga of the victim’s rubbish bin to dump his rubbish.
20. Having regard to the aggravating and mitigating features of this case, I do not propose to impose custodial sentences on the accused but they must not reoffend within the times I am about to specify.

Result

21. The accused Latino is given a suspended sentence of 8 months. The accused Feiloaiga is given a suspended sentence of 10 months. If the accused do not reoffend within the times that I have specified in relation to each of them, then that will be the end of this matter. But if any of them reoffends within the specified time relating to him, then that accused will be brought back to Court and sentenced for his present offences. It is therefore in the interests of both accused not to reoffend.

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CHIEF JUSTICE