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Police v Amituanai [2017] WSSC 49 (22 February 2017)

THE SUPREME COURT OF SAMOA
Police v Amituanai [2017] WSSC 49

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FERETI AMITUANAI male of Nuu Fou
Accused

Counsel:
L. Siofor Prosecution
D. Kerslake for the Accused

Sentence: 22 February 2016

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of causing grievous bodily harm with intent, pursuant to s.118(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. After a defended hearing on 14 November 2016, I found him guilty of the charge.

The offending

3. There was a scuffle during a touch game at the Assembly of God church (AOG) field at Nuu Fou on 25 July 2015. A person by the name of Siaosi had strangled the victim’s brother after he scored a try. The victim came to defend his brother and both ended up getting beaten by boys from the AOG church who were on the field. The accused was not part of this initial scuffle. Ulugia, a senior member of AOG, broke up the scuffle and told the victim and his brother to leave. Ulugia and the victim then got into a swearing match. The accused arrived and told the victim not to swear. Ulugia told the boys to get the victim and his brother. Both the victim and his brother took off and ran away in different directions. The accused chased the victim’s brother but did not catch him. The victim’s brother stood on the tar sealed road and watched his brother the victim. The victim was chased by Siaosi and was caught by the shirt and the victim fell onto his knees. The other boys caught up and starting beating the victim. The accused returned to where the victim was, picking up a rock on his way. As the victim stood up to get away, the accused punched the victim’s mouth with a rock. As a result the victim suffered three fractured teeth, a lacerated oral mucosa, and a swollen upper lip. The teeth had to be removed by the Dentist.

The accused

4. As shown in the pre-sentence report, the accused is single and 21 years old. He is currently unemployed and stays home to help his family with daily chores.
5. His parents divorced when he was three years old and he lives at Vaitele with his father’s family.
6. In terms of education, he completed Year 11 and then attended Wesley Technical School for two years.
7. In terms of employment, the accused was a carpenter and went to New Zealand in 2014 as a seasonal worker.
8. His cousin told Probation that the accused is a genuine person of good character. He remains supportive of the accused.
9. There are three written references from his family matai, his religious leader and the President of the Vaigaga Rugby Club of which he is a member. They say he is a reliable member of their family, leads the lawn mowing contract and plays rugby very well.
10. The accused says about the offending that he intended to break up the scuffle but the victim punched him so he retaliated. This was not found to be the case after the hearing.
11. He has no previous convictions.

The victim

12. The Court did not receive a victim impact report.
13. The victim suffered physical injuries, namely three fractured teeth which had to be removed by a dentist, a lacerated oral mucosa, and a swollen upper lip.
14. There has been no reconciliation according to the brother of the victim. However Defence Counsel submits that the accused apologised twice to the victim. I accept he has apologised.

Aggravating features of the offending

15. It is aggravating that the accused used a rock to attack the victim, who was already being beaten up by others and in a vulnerable and defenceless position. The attack was to the face of the victim.
16. There was actual violence involved.
17. The victim sustained quite serious injuries.
18. There was a degree of premeditation as he returned to where the victim was caught by others and picked up a rock. The victim was already outnumbered and being beaten by others.

Mitigating Factors

19. I take into account his age of 21 years. He is a young man with his whole life ahead of him.
20. I take into account the testimonials from his family matai, religious leader and president of his rugby club. He is a promising rugby player and a committed member of his family and church.
21. There has been an apology to the victim and the accused conveys through Defence Counsel his remorse and regret.
22. Defence has submitted that there was provocation from the victim. I find that there was a degree of provocation because the victim was swearing at a senior church member and at a church field. However the violent response by the accused is overly disproportionate to what the victim did. I also bear in mind what the Court of Appeal of Samoa said in Faafua (Vili) v Police [1980-1993] WSLR 550 cited by Wilson J in Police v Gali [1999] WSSC 19 (29 September 1999);
    • This was a serious wrong which you each did. Although you were provoked, you should not have responded in the way you did and with such severity. Your actions, even though provoked, are blame-worthy and culpable.

Discussion

23. Prosecution submits that a starting point of at least 18 months imprisonment is appropriate.
24. Defence Counsel submits that an appropriate sentence is a discharge without conviction, or alternatively a community based sentence. Prosecution opposes the application for a discharge without conviction. I will address this submission.
25. The Court’s jurisdiction to grant a discharge without conviction is found in section 69 of the Sentencing Act 2016. It provides that if a person charged with an offence is found guilty or pleads guilty, the Court may discharge the defendant without conviction, which is then taken to be an acquittal.
26. Section 70 of the Sentencing Act 2016 provides guidance to the Court. It states that the Court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.
27. In Police v Papalii [2011] WSSC 132 (25 Nov 2011) Sapolu CJ stated;
    • The approach of the New Zealand Courts to the question of a disc without convictionction is to und in three decisiocisions of the New Zealand Court of Appeal, namely, Fisheries Inspectorrner [1978] 2 NZLR 233, 241; Police v Roberts [1991] 1 NZLR 205, 210; R v Hughes [2008] NZCA 546, para 16.
28. In Fisheries Inspector v Turner [1978] 2 NZLR 233, 241, Richardson J stated:
    • "In considering the exercise of the discretion under s.42 [of the Criminal Justice Act 1954] the Court is required to balance all the relevant public interest considerations as they apply to the particular case: or, as s.42 (1) puts it, 'after inquiry into the circumstances of the case', which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction, and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s.42"
29. In Police v Roberts [1991] 1 NZLR 205, 210 Bisson J stated, in a passage cited by Vaai J in Pale v Attorney General [2010] WSSC 122 para 15:
    • [In] the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court's discretion if the direct and indirect consequences of the conviction are, in the Court's judgment, out of all proportion to the gravity of the offence. That must be the overriding consideration. The words 'out of all proportion' point to an extreme situation which speaks for itself".
30. In the case of R v Hughes [2008] NZCA 546, para 16 the New Zealand Court of Appeal, with reference to the judgment of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233, said:
    • "Justice Richardson (as he then was) identified a three step approach to the exercise of the Court's discretion under s.42. The Court must consider first, the gravity of the offending; secondly, the consequences of conviction; finally, whether these consequences are out of all proportion to the gravity of the offending identified at step one".
31. Therefore the three step approach identified in R v Hughes [2000] NZCA 544, para 16 as derived from the judgment of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 is applicable to the determination of a under our Sentencing Act 2016.
32. The three step approach is therefore;
    1. the gravity of the offending;
    2. secondly, the consequences of conviction;
    3. finally, whether these consequences are out of all proportion to the gravity of the offending identified at step one.
33. The gravity of the offending is reflected in the maximum penalty as set out by Parliament and that is 10 years imprisonment which is not an insignificant maximum penalty. This particular offending falls towards the middle range of the spectrum of grievous bodily harm offences. The injuries while not life threatening were serious and resulted in the permanent loss of three teeth. A rock was used to the face of the victim at a time when he was particularly vulnerable and defenceless, being attacked at the time by a group of boys.
34. Defence has submitted that if the accused is convicted, that conviction will jeopardise the defendant’s future in being able to travel to New Zealand as a seasonal worker as immigration laws are becoming very strict and require declarations of criminal convictions. I have seen no actual evidence that can confirm this. There are no affidavits filed to confirm he was in fact a seasonal worker in New Zealand or that he is being considered for the scheme again. Secondly it is submitted that a conviction will remain a stain on his reputation as well as the reputation of his family. That is a consequence of committing a serious offence.
35. In the case before me now, I do not consider that the direct and indirect consequences of a conviction in this case are out of all proportion to the gravity of the offence. This is not an extreme situation which warrants a discharge without conviction. I therefore will not grant the accused a discharge without conviction.
36. In sentencing for grievous bodily harm offences, the New Zealand case of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 provides useful guidance, not so much in terms of the actual starting point given the difference in penalties, but in terms of the factors to be considered in determining culpability. I have set these factors out in the aggravating features of the offending.
37. An important message of deterrence today for the accused and other like-minded people is that senseless and mindless violence will not be tolerated by the Court. For this young man today, it will be a harsh lesson.
38. Having taken into account the aggravating features of the offending, I find that a custodial sentence is appropriate in this case. I take the starting point for sentence as 12 months imprisonment. I deduct 3 months for his young age. I deduct 3 months for the testimonials in his favour. I deduct 3 months for his apology and remorse.

Sentence

39. For the charge of causing grievous bodily harm the accused is convicted and sentenced to 3 months imprisonment.

JUSTICE TAFAOIMALO TUALA WARREN