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Police v Selasa [2016] WSSC 111 (13 July 2016)

SUPREME COURT OF SAMOA
Police v Selasa [2016] WSSC 111

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TALAGATA SELASA male of Toamua and Moamoa Tai
Accused

Counsel:
A. Tumua for Prosecution
Accused in person

Sentence: 13 July 2016

S E N T E N C E

The charge

1. The accused appears for sentence on four charges; one of causing actual bodily harm pursuant to section 119(1) Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment; one charge of being armed with a dangerous weapon and one charge of throwing objects both carrying a maximum penalty of 1 year imprisonment each pursuant to sections 25 and 26 Police Offences Ordinance 1961 respectively; and one charge of insulting words pursuant to s 4(g) Police Offences Ordinance 1961 carrying a maximum penalty of three months imprisonment or fine of $200.
2. He pleaded guilty to all charges on 30 November 2015.

The offending

3. The Prosecution summary of facts admitted by the accused says that on
   09 November 2015, at around 11 pm, the victim and his wife were sitting in front of their house at Moamoa Tai. The accused and his companions walked past. They were intoxicated and started shouting out insulting remarks, ‘kefe’. The victim’s mother came out of their house and told the accused and his companions to stop being inconsiderate. One of the companions of the accused shouted back, ‘pukio’. The victim then stood up and walked to the accused and his companions and told them off for being inconsiderate. The accused who was holding a glass at that time, threw the glass towards the victim and it hit him on the side of his head. The victim’s wife then took the victim into their house. The accused and his companions armed themselves with rocks and started throwing rocks onto the roof of the victim’s house. The injured victim and his wife ensured that their children were safe. The victim’s wife called the Police and upon arrival, the Police arrested the accused and a companion.
4. The victim was taken to the hospital and a medical examination revealed that he had sustained a rugged laceration to the left parietal area which was sutured.

The accused

5. The accused is 21 years old. He works at a car washing business and is single.
6. The accused was referred for an assessment with the Alcohol and Drugs Court clinician on 7 March 2016, after his guilty plea.
7. According to that assessment, the accused meets the DSM-5 criteria for alcohol dependence because of his recurrent use of alcohol in a 12 month period. The accused was accepted into the Alcohol and Drugs Court following a determination hearing on 8 March 2016. He was given a sentencing indication of 18 months imprisonment.
8. The accused started Phase 1 (6 weeks) program of treatment. On the third week, he breached his bail condition and was sanctioned by the Court by way of a curfew being imposed. During this time, the Alcohol and Drugs Court was made aware of other charges in the District Court which were committed subsequent to the current charges. He completed Phase 1 on 18 April 2016.
9. The accused started Phase 2 (12 weeks) intensive treatment program on 20 April 2016. He completed only two weeks and then did not attend the rest of his programs. He did not report to his Community Justice Supervisor (CJS) or Probation.
10. A warrant of arrest was issued on 17 May 2016 when he failed to appear in Court. He appeared pursuant to this warrant on 21 June 2016.
11. On 21 June 2016, the accused was exited from the Alcohol and Drugs Court and remanded to Supreme Court for sentencing. (see Police v Talagata Selasa, decision of Tuatagaloa J exiting participant dated 21 June 2016).
12. The accused has no previous convictions.

The victim

13. According to the victim impact report provided to the Court, the victim is 25 years old from Moamoa. He is married with 4 children and works at a shop at Vaitele Tai.
14. He says that when the glass hit his head, blood started to ooze from his head. He was admitted to the hospital on the night of the offending and he received stitches to his injury on the left side of his head.
15. He says that the accused has apologised to him in person and he has forgiven him. He says the actions of the accused will nevertheless remain with his hurting family.

Aggravating features of the offending

16. It is aggravating that the accused attacked the victim with a glass and caught him completely unawares.
17. It is aggravating that the accused was swearing and swore at the victim’s mother, showing his lack of respect for elders, for whom should be given respect in our culture.
18. He also threw rocks at a house which contained children, putting their safety at risk.
19. The victim suffered injuries to his head as a result of the actions of the accused, although fortunately the victim says he does not suffer from psychological effects as a result of the incident.

Aggravating features in respect of the offender

20. The Court considers that it is an aggravating feature in respect of the accused that he failed to comply with conditions of his participation in the Alcohol and Drugs Court.
21. According the Justice Tuatagaloa’s exit memorandum dated 21 June 2016, he was formally exited for the following reasons;
    1. Deliberate and persistent failure to comply with programs or bail conditions;
    2. Exited from treatment provider due to serious breaches of treatment setting rules;
    100. acting in a manner which causes the Alcohol and Drugs Court to conclude that continued participation is untenable; and
    4. participant did not present to Alcohol and Drugs Court treatment services or court for a period of over 14 days.
22. It shows on his part that he is not remorseful. He has not utilised a valuable opportunity given to him by the Court to address his offending behaviour. He has blatantly disregarded the Alcohol and Drugs Court by his non-compliance.
23. He also has no regard for the law and community in general. He committed further offences falling within the jurisdiction of the District Court, whilst he was going through the court process for the current charges.

Mitigating Factors

24. The fact that the accused was drinking alcohol at the time of the offending is not a mitigating factor. It is important that this is made clear.
25. The accused apologised to the victim and the Court will take this into account.
26. I also take into that the accused did complete the first phase of treatment and received a certificate for it.
27. I take into account his age of 21 years.
28. His early guilty plea to the charges is a mitigating factor.

Discussion

29. The purposes of sentencing in this case are; to hold the defendant accountable for harm done to the victim and the community by the offending, to promote in him a sense of responsibility for, and an acknowledgment of that harm; to provide for the interests of the victim of the offence; to denounce the conduct in which the defendant was involved; to deter him and others from committing the same or a similar offence and to protect the community from the defendant.
30. It is not a purpose of his sentence today to assist in his rehabilitation and reintegration. This is because he has not embraced the rehabilitative alternative to imprisonment which was extended to him by the Alcohol and Drugs Court. The Court in undertaking a balancing exercise between the purposes of this sentence, has relegated his rehabilitation to the back bench due to his own actions.
31. The Alcohol and Drugs Court has recommended an imprisonment sentence of 18 months to be imposed as per its sentencing indication given on 9 February 2016. Having regard to the aggravating features relating to this offending, I agree that an imprisonment term is appropriate in this case. I take 1 ½ years imprisonment as a starting point for sentence. I will add on 6 months for the aggravating features relating to him, that is, his failure to comply with Alcohol and Drugs Court conditions and offending while in Court for these charges. This increases the starting point to 2 years. I will then deduct 6 months for his apology, his completion of the 6 weeks treatment program and his age. Finally I deduct 1/3 or 6 months for his early guilty plea.

Sentence

32. For the charge of causing actual harm, the accused is convicted and sentenced to 12 months imprisonment.
33. For the charge of being armed, the accused is convicted and sentenced to 6 months imprisonment.
34. For the charge of throwing objects the accused is convicted and sentenced to 6 months imprisonment.
35. For the charge of insulting words, the accused is convicted and sentenced to 2 months imprisonment.
36. All sentences to be served concurrently so that he will serve 12 months imprisonment.
37. Any time spent in custody to be deducted.
    

JUSTICE TUALA-WARREN