SUPREME COURT OF SAMOA
Police v Aigaga [2013] WSSC 26

Case name: Police v Aigaga
Citation: [2013] WSSC 26
Decision date: 11 February 2013
Parties: POLICE and TIMOTI FATU AIGAGA, male of Fasitoo-tai
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
Ms L Taimalelagi for prosecution
Defendant unrepresented 
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TIMOTI FATU AIGAGA, male of Fasitoo-tai
Defendant

Counsel:   Ms L Taimalelagi for prosecution
Defendant unrepresented 

Sentence:   11 February 2013

SENTENCE

The defendant in this case is a 47 year old male of Fasitoo-tai and as he stated this morning he is married with 7 children for whom he is the sole breadwinner.  I accept that he may be the breadwinner for a large family.  But that is never a reason for avoiding imprisonment if such a penalty is considered necessary for the offence committed.  The defendant should have thought of his children and his family before engaging in the violent conduct that he engaged in rather than after.  
When the police summary was read to the defendant he disputed parts of it so the police called the complainant and her nephew who witnessed the incident.  The defendant also elected to give evidence.  The cumulative effect of this testimony was that during a drinking party, the defendant and the complainants husband got into a fight.  This led to the defendant leaving the scene of the party.  Had the defendant left matters at that, he would probably not be sitting in the dock.  But he made the unwise choice of returning to the scene while passions and emotions were still high.  The defendant says he returned unarmed.  The complainant and her witness said however he came back with a rock.  And that he threw it probably at the husband and by mistake hit the complainant in the teeth.  The defendant says that he did throw a rock but only after the complainants dogs attacked him.  And that in throwing the rock someone deflected his aim and that caused the rock to strike the complainant in the mouth.  The complainants nephew said that he kicked the defendant and that is what deflected the rock causing it to strike the complainant.
The issue is not whether the defendant came back to the scene armed with a rock or not.   Because he admits throwing a rock and it is clear this rock hit and injured the complainant.  But I do not accept the defendants ridiculous argument that he threw the rock at the dogs on the ground and that this somehow ended up hitting the complainant in the mouth.  It is more likely that the defendant threw the rock at the person he had been arguing with (the complainants husband) and that by mistake it hit the complainant when it was deflected by the nephew.  
In the circumstances it is still a grievous bodily harm against the person injured because the grievous bodily harm was wilfully inflicted albeit on the wrong target.  That means that even if you threw the rock at the dogs and by accident hit the complainant, you are still liable for the grievous bodily injury you caused to the complainant.  That is the law on this point and there is legal authority for that Timoti but since you are not a lawyer I do not propose to delve into that issue.  The only question is what an appropriate penalty for your actions.
The medical report shows that the complainant lost 2 teeth as a result of these actions.   Because the rock chipped 2 of her front teeth which according to the medical report had to be removed.  Why the chipped teeth could not have been rebuilt is not clear.  But they were removed by the dentist and the complainant will require replacement false teeth for practical as well as aesthetic reasons.  There is no evidence in the report or in any of the other documents that there was any other injury suffered by the complainant.  Which means that the defendants actions were dangerous, reckless but not necessarily life threatening.
I can tell you Timoti that had the consequences of what you did been more serious a penalty of imprisonment would have been quite appropriate. But considering all the circumstances of this matter I am not of the view that a jail penalty should not be imposed on you.  In that assessment I have noted that there is no evidence contrary to what is in the probation pre-sentence report that you have been previously convicted for violent offending because the prosecution summary of facts says you are a first offender.
Ona o tulaga ia ua tolaulau atu i le faaiuga a le faamasinoga, o le a le tuu atu se faasalaga faafalepuipui ia oe Timoti mo le solitulafono le nei.  Ae e momoli atu le faaiuga a le faamasinoga ma le lapataiga e te nofo uta.  A toe aumai oe i se mea faapenei, po’o ai lava e aafia ai, ia e sili na e saauniuni e ese le auala o le a faatino ai se faasalaga o le faamasinoga; ua manino lea vaega, Timoti? (Defendant says yes) O le fautuaga a le faamasinoga, a faapea ua le mafai ona pulea ia le amio i le taimi o le faasuavā sili na tuu le pia.
Probation office pre-sentence report indicates the defendant has sources of funding to call upon.  He will therefore receive a monetary penalty for this offence in the following terms:  firstly to reflect the gravity and seriousness of the offending he will be convicted and fined $750 tala.  In addition to that, he will pay to the probation office for forwarding to the complainant the sum of $250 tala as compensation for her losses and associated dental expenses.  That compensation payment is ordered pursuant to section 165 (1) of the Criminal Procedure Act as I consider the complainants teeth as much her property as anything else she may own.  This sum of $1,000 tala is to be paid within 30 days from today’s date.  In default the defendant will serve 3 months imprisonment for every $250 tala unpaid, so that if he does not pay any of this he will serve 12 months in prison.
.……………………
JUSTICE NELSON