SUPREME COURT OF SAMOA
Police v Fuatai [2019] WSSC 65

Case name: 	Police v Fuatai	
		
Citation: 	[2019] WSSC 65	
		
Judgment date: 	29 October 2019	
		
Parties: 	POLICE v KENESE FUATAI male of Sataoa Safata.	
		
Judgment date(s): 	29 October 2019	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE	
		
On appeal from:	District Court	
		
Order:	
-	On both charges Kenese, you are convicted and sentenced to (i) 6 months supervision and directed to attend any programs as you may be directed by the Probation Service; and (ii) carry out 50 hours of community work.
	
Representation: 	R Titi for Prosecution
D Roma for the Accused

Catchwords: 	armed with a dangerous weapon – common assault – discharged without conviction – erred in fact and law – maximum penalty 	
		
Words and phrases: 
		
Legislation cited:	Sentencing Act 2016.	
		
Cases cited:	(Attorney General v Ropati [2019] WSCA 2 (15 April 2019)	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

KENESE FUATAI male of Sataoa Safata.
Accused

Counsel:	
R Titi for Prosecution
R Titi for the Accused 

Hearing:	25 October 2019
Judgment: 	 29 October 2019

JUDGMENT
A.	Introduction:
[1]	The Respondent Kenese Fuatai pleaded guilty in the District Court to common assault and being armed with a dangerous weapon, namely a hammer. At sentence, he was discharged without conviction and ordered to pay $100 for each charge, in total, $200.
[2]	The Appellant appeals the decision by the District Court Judge to (a) discharge the Respondent without conviction; and (b) fine the Respondent on a discharge without conviction. The grounds are that the Judge (a) erred in fact and law in failing to assess the proper test for discharge without conviction; (b) erred in fact and law in concluding that there was jurisdiction to discharge the respondent without conviction; (c) that the Judge erred in fact and/or law by ordering a discharge together with the payment of $100 for each charge; and (d) the sentence is manifestly inadequate.
B.	The Facts:
[3]	According to the Summary of Facts, the Respondent was 20 years of age. On the 27th March 2018, the victim was riding a bike. He came across the Respondent and two other males. The victim greeted the two males who also responded greeting him. When the victim then turned, he was struck by the Respondent at the back of his head with a hammer and the victim fell down. The victim tried to stand up but was dazed and he was then punched twice by the Respondent, one striking his mouth and the other, his chest. The two other males then separated the incident and Police were contacted.
[4]	The Respondent is a single male, with no children. At the time of sentencing, he was employed but from the bar table, I am advised he is now no longer employed. In the Pres-Sentence Report, the Respondent was described by his father as obedient, reliable, strong worker and his right hand. He described the Respondent as not troublesome.
[5]	The victim according to the Summary of Facts was 21 years old at the time of the incident, unemployed and stays home.
[6]	The maximum penalty for common assault and being armed with a dangerous weapon is an imprisonment term not exceeding 1 year imprisonment.
[7]	After hearing from the Respondent, the Judge discharged the Respondent without conviction and ordered the payment of $100 per charge to be paid forthwith, in default, 4 weeks imprisonment.
[8]	Before this Court, counsel for the Appellant was questioned as to the sentencing process adopted in the District Court and as to whether Prosecution (a) filed any sentencing submissions and/or (b) made any submissions on sentence. Counsel advised that Prosecution did not file any written submissions; did not make any submissions on sentence nor did Prosecution seek to make submissions. The matter, as she informed this Court, was left to the District Court Judge’s discretion.
[9]	For the Appellant, by leaving the sentencing of the Respondent to the discretion of the Court without making any submissions whatsoever, or even seeking to make any submissions on sentence, left itself open to the sentence imposed. Prosecution as a matter of good practice and in order to assist the Courts, should make submissions on sentencing. It is regrettable that Prosecution failed to make sentencing submissions and then on the imposition of a sentence, appealed that decision.
[10]	At sentence, Courts before entering a conviction and imposing a sentence, must consider whether it would be more appropriately dealt with by discharging a defendant without conviction (section 11(1) of the Sentencing Act 2016). Where a discharge without conviction may be granted, application of the disproportionality test as set out by the Court of Appeal (see below, para. 12) should be set out in the judgment so that the reasons for the grant or refusal of an application for discharge without conviction are laid out. 
[11]	In this case, it is not disputed by counsel for the Respondent that a discharge without conviction is not sustainable.
C.	THE LAW
[12]	In this Court, on an appeal from a discharge without conviction, the Appellate Court is to assess the disproportionality test afresh (Attorney General v Ropati [2019] WSCA 2 (15 April 2019) at para. [29]). That approach is to:
(i)	assess the gravity of the offence, a task which includes having regard to the aggravating and mitigating factors;
(ii)	Identify the  direct and indirect consequences of a conviction;
(iii)	decide whether the consequences would be out of all proportion to the gravity of the 	offence, and if so;
(iv)	exercise the discretion as to whether a discharge without conviction should be the outcome (Attorney General v Ropati, (supra) at para. [55])
Discussion:
[13]	In this appeal, the Respondent through counsel accepts that a discharge without conviction is unsustainable. I agree with counsel for the Respondent. The offending was clearly serious offending in this type of offence, the Respondent using a hammer to strike the victim in the back of the head. After the first strike targeting the back of the head with a hammer as a weapon, the Respondent then continued with the assault, punching the victim in the mouth and chest. There was no evidence of what the consequences of a conviction would be on the Respondent, and none submitted in this Court. The consequences of a conviction could not therefore be said to be out of all proportion to the gravity of the offending.
[14]	The sentence of discharge without conviction is set aside and a conviction entered accordingly. The orders that the Respondent pay $100 per charge is also quashed. The offences of common assault and being armed with a dangerous weapon do not include in those provisions, a sentence of a fine.  The monies paid are to be refunded within 21 days to the Respondent.
Sentence on Appeal:
[15]	This Court may on an appeal against sentence substitute any other sentence warranted in law, whether more or less severe (section 154(2)(c), Criminal Procedure Act 2016). This matter has been ongoing for a year with the Respondent sentenced in the District Court last year in October. I have heard counsel on sentence and will now proceed to sentence the Respondent.
[16]	Your counsel seeks that you come up for sentence in 12 months if called on. In mitigation, your counsel raises your prior good character, apology, reconciliation and remorse. She also submits that since your sentence imposed 12 months ago, you have had not re-offended. Prosecution seeks a non-custodial sentence but raises aggravating factors as the use of a hammer, the targeting of the victim’s head, it was unprovoked and a continuing assault.
[17]	The seriousness of this offending rests in the use of a hammer to strike the victim in the back of the head, a highly vulnerable part of the human body. It dazed the victim but then the assault continued until broken up by the two other males.
[18]	I accept that the Respondent is genuinely remorseful, it is isolated offending and that reconciliation has occurred as well as the apology rendered. An order that the respondent come up for sentence if called on is however an inappropriate sentence and does not reflect the gravity of the Respondent’s offending.
Result:
[19]	On both charges Kenese, you are convicted and sentenced to (i) 6 months supervision and directed to attend any programs as you may be directed by the Probation Service; and (ii) carry out 50 hours of community work. 
		JUSTICE CLARKE