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Police v Afoa [2016] WSSC 117 (8 June 2016)

THE SUPREME COURT OF SAMOA
Police v Afoa [2016] WSSC 117

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PAPUA AFOA male of Laulii
Accused

Counsel:
F. Ioane for Prosecution

Sentence: 8 June 2016

S E N T E N C E

The charge

1. The accused is 24 years old from Laulii. He appears for sentence on one charge of causing actual bodily harm with intent, pursuant to s.119(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment.
2. He pleaded guilty to the charge on 18 April 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 24 March 2016, at 6 pm, the accused and his cousin were drinking beer at the beach. Afterwards when they left the beach, they went to Leusoalii to see someone and had one more beer each. When they left and were walking back to Laulii, the accused and his cousin got into an argument and the accused punched his cousin on the mouth. His cousin fell to the ground and sustained a deep laceration to the right side of his inner lip as a result of the punch by the accused.

The accused

4. As shown in the pre-sentence report, the accused is 24 years old, single and lives with his father at Laulii. His mother passed away in 2010. He is the youngest of 10 siblings. He cultivates the family plantation for his family’s survival. He is responsible for looking after his elderly father as most of his siblings are overseas. . He left school in Year 11.
5. His older sister told Probation that the accused is a reliable member of their family who works hard on the plantation to care for their father.
6. There are two testimonials from Reverend Toleafoa (EFKS Laulii) and the Pulenuu of Laulii. Both say that the accused is a reliable and hard working member of the church and village. They say he is involved in serving the church and village through the aumaga or untitled mens group.
7. The accused was ordered by this Court on 18 April 2016 to attend Toe Afua se Taeao Fou psycho-education alcohol and drugs programme through Probation. He has completed that programme and has received a certificate of completion.
8. He has no previous convictions.

The victim

9. There is no victim impact report given to the Court. In the summary of facts it is clear that the victim is 47 years old, married with five children. He is a cousin of the accused.
10. The accused tells probation that he and his father have approached the victim and apologised and the apology was accepted by the victim. The victim provided a letter to confirm he has accepted the apology by the accused and his father.

Aggravating features of the offending

11. It is aggravating that the offence took place within the context of a domestic relationship. The accused and victim are cousins and this relationship falls within the definition of a ‘domestic relationship’ contained in section 2 of the Family Safety Act 2013. Section 17 of same Act states that the Court shall consider this fact as an aggravating factor when determining sentence.
12. It is also aggravating that the victim suffered an injury as a result of the punch by the accused, that is, a deep laceration to the right side of his inner lip.

Mitigating Factors

13. I consider the accused participation and completion of the programme as directed by the Court as a mitigating factor.
14. The apology by the accused and his father shows remorse on the part of the accused. He also told Probation and the Court that he is remorseful for what he did.
15. His favourable testimonials from his church and village leaders are mitigating factors.
16. His early guilty plea to the charge is also a mitigating factor.

Discussion

17. In cases where there is domestic violence, I am guided by the s.17 Family Safety Act 2013 in sentencing. This is a case of domestic violence whereby the offence took place within the context of a domestic relationship. Therefore the Court must have regard to, inter alia, the conduct of the offender towards the victim since the offence and any matter which indicates whether the offender;
    • (i) accepts responsibility for the offence and its consequences;
    • (ii) Has taken steps to make amends to a victim, including action to address the negative impacts of the offence on the victim; or

(iii) May pose any further threat to a victim.

18. The Court must also have regard to evidence revealing the offender’s;
    • (iv) Attitude to the offence;
    • (v) Intention to address the offending behaviour;
    • (vi) Likelihood of continuing to pose a threat to the victim; and
    • (vii) Whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.
19. Alcohol was a contributing factor to this offending. The accused has completed a programme to address his alcohol consumption. This is an important consideration as it reveals that he has addressed his offending behaviour and has received assistance in relation to it.
20. His apology to the victim indicates that he accepts responsibility for his offence and his remorse is indicative of his attitude towards the offence.
21. Prosecution has recommended a suspended sentence. Probation recommends a community based sentence.
22. Having taken into account the aggravating and mitigating features, I find that a non-custodial sentence is appropriate in this case. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Section 16 of the same Act states that the Court may impose such special condition or conditions related to the rehabilitation or reintegration of an offender as the Court thinks necessary.
23. It is important that the accused is given the opportunity to incorporate into his daily life the lessons he has learnt from the programme. But it is equally important, that that is done under the supervision of probation to reduce the likelihood of reoffending. A stern warning is given to the accused that if he appears again on a similar charge, a harsher penalty will be imposed by the Court.

Sentence

24. For the charge of causing actual bodily harm with intent, the accused is convicted and sentenced to 12 months supervision with the special condition that he is not allowed to drink alcohol.
    

JUSTICE TUALA-WARREN