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Police v Paiena [2013] WSSC 8 (23 February 2013)

SUPREME COURT OF SAMOA

Police v Paiena [2013] WSSC 8

Case name: Police v Paiena

Citation: [2013] WSSC 8

Decision date: 23 February 2013

Parties:
Police and Pundee Paiena male of Lotoso’a Saleimoa and Lafaele Pesamino aka Sipuaa Pesamino male of Lotoso’a Saleimoa

Hearing date(s): 14, 15 August 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

Representation:
Phaedra Valoia for prosecution
Leilani Tamati for first defendant
Richard Faaiuaso for second defendant.

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

PUNDEE PAIENA male of Lotoso’a Saleimoa and LAFAELE PESAMINO aka SIPUAA PESAMINO male of Lotoso’a Saleimoa

Defendants

Counsel:

Phaedra Valoia for prosecution

Leilani Tamati for first defendant

Richard Faaiuaso for second defendant

Sentence: 23 February 2013

SENTENCE

1. The two defendants were charged under section 79 of the Crimes Ordinance 1961, with the offence of willfully and without lawful justification caused grievous bodily harm. Both were found guilty after a defended hearing. Each is liable to a maximum penalty of 7 years imprisonment.

The Offending

2. After a dance on the night of 3^rd January 2012 the victim and his friend walked home. They were pursued by a group of youths who were destined to assault the victim and his friend. This group of youth included both defendants. Defendant Lafaele Pesamino instigated the pursuit.
3. When the pursuing youths threw rocks the victim and his friend ran, but the victim fell down when he was struck by a rock. He got up and fought with defendant Pesamino. Defendant Pundee was also seen throwing a punch at the victim.
4. Defendant Pesamino, as a result of a punch by the victim, fell to the ground. At that very moment the victim also fell as a result of a rock which struck the victim. Defendant Pesamino grabbed stick from a nearby rubbish stand and struck the victim on the face several times. When the stick broke he grabbed another stick and continued to assault the victim who was still on the ground.
5. Defendant Pundee intervened by grabbing Pesamino and led him away.

Injuries to the Victim

6. Severe facial injuries were sustained by the victim. His jaw was fractured. His face was partially deformed requiring medical evacuation to NZ for treatment and repair work to his face. His diet was restricted to fluids for weeks as he was unable to eat solids. His nose was broken and needed surgery. A number of teeth were also broken and needed repairs.

Victim Impact Report

7. The offending has significantly impacted on the victim both physically and psychologically. Injuries were confined to his facial area with some injuries to his chest. Psychologically he says in the impact report that the beating up he received has permanently scared him. He is struggling to put the incident behind him. His diet has been restricted. He is confined to fluids and soft dietary food. He also feels incapacitated from doing his usual duties. A carpenter prior to the incident, he says he can no longer do carpentry work. His income earning capacity has been restricted.

The defendant Lafaele Pesamino

8. Defendant Pesamino was undoubtedly the ring leader and the principal offender. At his instigation and without provocation from the victim or his friend, the two defendants and other youths pursued the victim and his friend.

All the blows delivered by Pesamino were aimed at the face of the victim. He went for the second stick when the first one broke, and the blows were delivered whilst the victim was on the ground. The onslaught only came to an end when Pesamino was pulled away by the defendant Pundee.

Defendant Pundee Paiena

9. Defendant Pundee Paiena threw one punch. He intervened and pulled away defendant Pesamino who was assaulting the victim with the stick.

Discussion

10. Sentences imposed by the court for willfully causing grievous bodily harm have depended very much on the circumstances of each case. Penalties imposed on similar cases are considered for purpose of consistency only.

It must be said now that the assault on the victim was very serious resulting in severe injuries with long lasting effects to the victim.

It must also be said that the degree of involvement of the two defendants differed considerably to justify a disparity in sentence. Defendant Pundee is entitled to a considerably lighter treatment than that of Pesamino, the instigator, the ringleader and the most violent.

Sentence for defendant Pundee

11. A custodial sentence is not warranted. This 25 year old intelligent young man has lost his well paid job with the EPC as a result of his offending. That is a punishment in itself. He has also been fined by his village and his family has apologised traditionally to the victim and his family. That apology has been accepted. Pundee is a first offender and the court accepts his remorsefulness.

He is convicted and placed on Probation for 12 months on condition he will perform 50 hours community work. He is also ordered to pay through the Probation Service cost of prosecution of $500 by monthly instalments of $100 first payment the 29^th March 2013.

Sentence for defendant Pesamino

12. Defendant Pesamino’s role as instigator and ring leader together with his unprovoked aggressiveness warrants consideration of a substantial term of imprisonment. Undoubtedly he contributed significantly to the injuries by striking the victim’s face with two sticks. He would have continued to strike the victim on the face if defendant Pundee had not intervened. A starting point of 4 years in the circumstances is warranted. I deduct 12 months for his first offender status, and a further 6 months for the apology tendered to the victim’s family. Defendant is sentenced to 2 years and 6 months imprisonment less any time he has spent in custody.

JUSTICE VAAI