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Police v Aveau [2025] WSSC 68 (4 August 2025)

IN THE SUPREME COURT OF SAMOA
Police v Aveau [2025] WSSC 68 (4 August 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

OLAINUULELEI NAAMA AVEAU, male of Fagalii-Tai

Accused

Counsel: R Fong for Prosecution

A. Su’a for Accused

Sentence hearing: 4^th July 2025
Decision: 4^th August 2025

SENTENCE

The Charges:

1. Counsel for prosecution confirms that the charge of actual bodily harm in the charging document dated 3^rd May 2025 is an alternative charge to grievous bodily harm and should be withdrawn and dismissed. Accordingly, that charge is withdrawn by leave and dismissed.
2. That leaves two charges for which the accused appears for sentence: assault grievous bodily harm and driving an unregistered vehicle.

The Offending:

3. According to the Summary of Facts accepted by the accused through his counsel, on the night of the 16^th August 2024, he had been with his wife at the Marina night club. He drank two cans of Woodstock bourbon and four cans of Taula beer. At about 11.30pm and as he began to feel intoxicated, he and his wife left the night club and took a taxi home to Fagalii-tai. When they arrived, his wife went home but the defendant went to a small shop opposite his house to spend time with two of his cousins.
4. While the accused was at the shop, the accused heard a person yelling and using vulgar language near the Toleafoa Petrol Station. He went there with one of his cousins, Tasi to investigate. As they approached, they saw three men from Vailele village walk towards them. A physical altercation broke out but a short time later, a police vehicle arrived at the scene causing the Vailele men to flee.
5. The accused then went home and searched for his keys to his pick-up. He instructed another cousin PJ to install the battery. Once the battery was installed and the car working, they drove off in search of the three Vailele men with the intention of running them over and killing them.
6. When approaching the Maalaauli taxi stand in Vailele, the accused spotted the victim and two companions walking along the opposite side of the road. Without hesitation, the accused swerved his car toward the group of men, striking the victim and narrowly missing the other two men.
7. As a result of being struck by the car, the victim suffered serious injuries. When taken to the hospital, Dr. Tanu Tuese noted that the victim was unconscious on arrival and non-responsive to painful stimuli and that he suffered:
   • (a) 3 – 4 cm laceration to the head;
   • (b) 3 – 4 cm laceration to the lower back;
   • (c) Superficial laceration of approximately 4cm to the left iliac crest region; and
   • (d) Small abrasion to the right knee.
8. Due to the severity of the victim’s injuries, he was referred to the surgical team for further evaluation where it was confirmed that the victim also:
   • (a) Sustained lacerations to his scalp, open wound on his lower back centrally measuring 5 x 4 x 2 cms, a 4 cm superficial laceration over his left abdomen and multiple abrasions to his upper and lower extremities;
   • (b) Multiple hemorrhages in the bilateral lobes. CT scan of the chest also revealed lung contusion bilaterally with no free air or fluid.
9. After the incident, the accused returned home to his wife, confessed about what had occurred and they made the decision to report the matter to police. The police investigation concluded that the victim and his companions were not the same individuals that had assaulted the accused.

The Accused:

10. The accused is 26 years old from Fagalii-tai. He is married and was employed at the Lava Hotel. He attended Don Bosco to year 11 and then attended the Don Bosco Technical School where he secured a “Certificate of Electrician”. He first worked at the Sheraton Hotel and later, Lava Hotel as a maintenance officer. He is now unemployed rendering service to his family. He is a first offender and has positive character references.

The Victim:

11. The victim is 21-year-old Jimmyryon Tusa, also from Fagalii-tai. While there is no VIR, there is a letter from his father requesting leniency and forgiveness for the accused.

Aggravating features:

12. The aggravating features of the accused offending are:
    • the infliction of actual serious violence against the victim using a car as a weapon;
    • the accused intended to kill the victim and his companions;
    • the serious harm inflicted on the victim;
    • the act was to a degree premeditated. The accused his cousin place the battery in the car so it would start. He then left with the intention of running over the men who had previously assaulted him. That he struck the wrong person is irrelevant; and
    • the vulnerability of the victim walking along the side of the road and struck by the accused with a car.

The mitigating features:

13. The accused counsel accepts that provocation cannot apply to this case. The accused drove his car at the wrong people and the concession is appropriate. I accept however that mitigating to his offending is that shortly afterwards, the accused went to police and self-reported his offending, immediately appreciating that what he had done was wrong.
14. In terms of the mitigating factors personal to the accused, I accept that he is genuinely remorseful for his offending. This is not only reflected in the references before me and what he told the Probation Service but by his actions reporting his offending to police and confessing to what he had done. I accept that he is a person of prior good character, with no prior convictions before this offending. The accused has also been held accountable by his village, in accordance with customary practices, and has performed an ifoga. Finally, his guilty plea is also a mitigating factor, as it has saved the court’s time and that of the police and witnesses from the need to give evidence.

Discussion:

15. Olainuulelei, all the information before the Court depicts you as a fine young man who, until this offending, had a bright and promising future. You come from a good and caring family, you have an in-demand trade as an electrician and had done well educating yourself. However, under the influence of alcohol and like so many young men in similar circumstances, you got into an altercation and were unable to control your anger. You then went on to make a very serious mistake using the car you were driving to hit the victim, narrowly missing his two friends.
16. What you did that night was foolish and wrong. The degree of your foolishness was so extreme that you purposely but mistakenly struck the wrong person with the intention of killing him. You are fortunate the victim was not killed. You are also fortunate you not being sentenced on the charge of attempted murder based on the accepted fact that you intended to kill the victim, confirmed also in your confession to police. Prosecution elected to withdraw the attempted murder charge. Prosecution though submits that your case falls within band 3 of R v Taueki [2005] NZCA 174 as it is applied in Samoa and seeks a 6 – 8-year sentence start point. Your counsel seeks an end sentence of 2 years’ imprisonment.
17. I do not intend to lay out the Taueki bands, those are well-known to counsel. I however refer to two other New Zealand sentencing authorities dealing with grievous bodily harm offending using a vehicle. The first is Goyen v R CA 285/05. There, the New Zealand Court of Appeal applied the Taueki bands where a car was used as a weapon to strike a person at a service station. There, the victim suffered serious, life-threatening internal injuries. Distinguished from this case, absent was premeditation and the intention to kill, albeit, you struck the wrong person. The New Zealand Court of Appeal concluded that the sentencing judge “correctly placed this case at the lower end of band 2.”^[1] The New Zealand Court of Appeal made the point at [30] that GBH sentencing is not simply ascertaining how many aggravating factors are present but that “a sentencing Judge needs not only to identify such factors, but also to evaluate the seriousness of a particular factor.”
18. In Kavenga v New Zealand Police [2015] NZHC 2599 involving a forklift loaded with pallets driving at and striking a person, the victim was shunted into a wire fence and his foot trapped between a concrete block at the bottom of the fence and the front pallet. The victim could not get out and was in great pain. The offending was band 2 and a 5-year sentence start point adopted by the sentencing District Court judge. On appeal to the High Court, Brewer J dismissed the sentence appeal, though expressed the view that it was at the top of the start point range available to the judge.
19. In this case, I do not view your offending as a band 3 case. While the injuries were undoubtedly very serious, it was not apparently life threatening nor is it suggested that the victim suffers from a long-term or permanent disability. You also self-reported your offending to police shortly afterwards. However, the premeditated nature of your offending using a car with the intention to kill the victim, albeit, the wrong person makes your offending very serious and in my view places it at the higher end of band 2 (adjusted for the 10-year maximum penalty) where a 5 year start point is warranted. I treat as a significant mitigating factor your self-reporting to police reflecting your immediate remorse and acceptance of responsibility for your conduct, without which, a 6 year start point would in my view have been warranted. From the 5 year adjusted start point, I deduct 12 months for your genuine remorse and prior good character; 6 months for the ifoga and village penalty; and 9 months for the late guilty plea entered after the first hearing date. I have given a higher deduction for the later guilty plea then usual as trial documents were not served on the accused until the 10^th April 2025. Trial documents must be served as soon as practicable and preferably, available trial documents served prior to a hearing date being scheduled so that an accused might consider the strength of the prosecution and enter an early guilty plea. All available trial documents should then be served well prior to call-over. The continued practice by prosecution and police to serve trial documents late is unhelpful and leads to many problems, not least of which is ensuring a fair trial for an accused.

The penalty:

20. In respect of the charge of grievous bodily harm, you are convicted and sentenced to 2 years and 9 months’ imprisonment less remand in custody.
21. On the charge of driving an unregistered vehicle, you are convicted and discharged.

JUSTICE CLARKE

^[1] At [59].