SUPREME COURT OF SAMOA
Police v Iosefo [2019] WSSC 49

Case name: 	Police v Upuese Iosefo 	
		
Citation: 	[2019] WSSC 49	
		
Decision date: 	17 September 2019	
		
Parties: 	POLICE v UPUESE IOSEFO a.k.a UPUESE IOSEFO TAUMAOE male of Magiagi.	
		
Sentencing date(s): 	17 September 2019	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE	
		
On appeal from:		
		
Order:	
-	In respect of the charge before the Court, you are convicted and sentenced to 12 months supervision and you are ordered:
-	To attend any such further programs as directed by the Probation Service; and
-	To carry out 100 hours of community work at the Ministry of Justice and Courts Administration and if not suitable for the MJCA, as otherwise directed by the probation service.
	
Representation: 	Q Sauaga for Prosecution
Accused self-represented

Catchwords: 	genuine remorse – grievous bodily harm–mitigating features –maximum penalty –sentence 	
		
Words and phrases: 
	offending was out of character
with intent to cause grievous bodily harm – 
successful completion of the Salvation Army program
non-custodial sentence 
	
Legislation cited:	Crimes Act 2013 s. 118(1)	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

UPUESE IOSEFO a.k.a UPUESE IOSEFO TAUMAOE male of Magiagi.
Accused

Counsel:	
Q Sauaga for Prosecution
Accused self-represented

Decision:  17 September 2019

O R A L   S E N T E N C E
The Charge:
[1]	Upuese, you appear for sentence on one charge that with intent to cause grievous bodily harm to Tevita Leleua, you caused grievous bodily harm to him contrary to section 118(1) of the Crimes Act 2013. 
The Offending:
[2]	According to the Summary of Facts that you accepted yesterday, on the 13th June this year at around 12am, the victim who is a taxi driver picked you up from Motootua. You were intoxicated and he took you to Magiagi. Upon arrival at Magiagi, you then got into a dispute with the victim. You and the victim went outside of the taxi, you then approached the victim and punched him in his face. When the victim fell to the ground he lost consciousness, you then continued to assault him by kicking him in the head. You only stopped the assault on the victim because you were intoxicated and passed out and fell asleep next to the victim. 
[3]	When you woke up, you realized that the victim was seriously injured. As a result, you went to your house and sought help. The victim was then taken to the Motootua hospital by your father. 
[4]	As a result of the incident, the victim sustained the following injuries:
i.	A laceration to the right side of his head;
ii.	Swollen nose and upper lip;
iii.	Bruised chest; and 
iv.	Abrasions to his body.
Background of Accused
[5]	You are a 28 year old male of Magiagi. According to the Summary of Facts, you are a maintenance officer with the Outrigger Hotel. You told me that you are responsible for the maintenance of swimming pools. You are the third eldest of 11 children according to the Pre-Sentence Report. You completed school to year 12. You’ve worked various jobs and most recently with the Outrigger Hotel as its maintenance officer. You are married with one child. You have attached to your pre-sentence report positive references from your church, village and family. You have successfully completed the 6 weeks’ psychoeducation drug and alcohol program conducted by the Salvation Army. 
The Victim:
[6]	There is no Victim Impact Report available to the Court. The only information available to the Court is that he is 57 years of age of Alamagoto and that he is employed as a taxi driver. 
[7]	According to you, there has been reconciliation but there is no proof that that has taken place. 
[8]	There are no aggravating features personal to you as an offender, you are a first offender. 
Mitigating Features of the Offending:
[9]	In terms of the mitigating factors that I take into account on sentencing, I take the following into consideration:
a)	Your genuine remorse expressed in Court yesterday and for the purposes of sentencing I will accept that a formal reconciliation has taken place;
b)	I take into account your prior good character reflected in your first offender status and the references made available to the Court; 
c)	Your successful completion of the Salvation Army program and the positive reports that has been provided to the Court; and
d)	Your early guilty plea.
Discussion.
[10]	Upuese, grievous bodily harm is a very serious offence. It carries a maximum penalty of up to 10 years imprisonment. Ordinarily and in many cases, an imprisonment term is imposed. In your case, your act and violence perpetrated on the taxi driver was a cowardly act, particularly in respect of the continuing nature of your assault kicking him in the head when he was on the ground. 
[11]	I however accept that when you woke up, you realized what had occurred and the injuries that you had caused to the victim and you had sought assistance. Your father as a result then took the victim to the hospital. I assume that it is your father who has been accompanying you to Court and supporting you through this process. 
 [12]	You told the Court that you spent 1 week in custody. You said that as a result of your being held in custody, you learnt a valuable lesson. You have said that you have stopped drinking alcohol and that you do not wish to go back to prison. 
[13]	Prosecution has submitted that in your case, a non-custodial sentence of 7 months of supervision and 25 hours of community work together with other conditions are an appropriate sentence. I have no information on the out of pocket cost for the victim. There is no victim impact report and on the material before the Court in the Pre-Sentence Report, the victim is quite difficult to locate. The procedures in the Sentencing Act for reparation have not been invoked and in the circumstances in this case, it is not appropriate to pursue the reparation. In saying this however, I accept the submission by the prosecution that a non-custodial sentence is appropriate. This is for the reasons that:
i.	The injuries though serious were at the lower end of these types of injuries that come before the Court;
ii.	No weapon was involved;
iii.	You rendered assistance after the assault when you realized what you had done; and
iv.	To a significant degree, you have addressed the causes of your offending. In this regard you have successfully completed the Salvation Army program and you have ceased consuming alcohol. 
[14]	I accept that your offending was out of character. I accept that you made a serious mistake that morning. It is unlikely to re-occur. You are remorseful and you are a first offender. It is however important that you learn from the lesson from what has occurred to you. You must be under no illusion that should you re-appear before the Court for similar offending, you will likely be imprisoned. So today you are being given a second chance. Use the Salvation Army program skills that they have taught you so that you do not re-offend.
[15]	In respect of the charge before the Court, you are convicted and sentenced to 12 months supervision and you are ordered:
•	To attend any such further programs as directed by the Probation Service; and
•	To carry out 100 hours of community work at the Ministry of Justice and Courts Administration and if not suitable for the MJCA, as otherwise directed by the probation service.
		JUSTICE CLARKE