IN THE SUPREME COURT OF SAMOA
Police v Nauer [2014] WSSC 169

Case name: 	Police v Nauer	
		
Citation: 	[2014] WSSC 169	
		
Decision date: 	22 September  2014	
		
Parties: 	POLICE (Prosecution)
ALOSIO NAUER, male of Tanugamanono. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S511/14, S1258/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	For S511/14 you will be convicted and sentenced to 2 years in prison.  
In respect of whether the penalty should be cumulative or concurrent I consider the two attacks are separate and distinct events on the same young boy.  And they are probably characteristics of a pattern of abuse although that is not specifically referred to in the police summary of facts.  It will therefore be ordered that the two sentences be served cumulatively.  In order words for these two offences Sio you will serve 4 years in prison.   Any time spent in custody awaiting sentence is to be deducted from that.  	
		
Representation: 	O Tagaloa 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:
		
POLICE
Prosecution

AND:

	ALOSIO NAUER, male of Tanugamanono.
Defendant

Counsel:	O Tagaloa and Ms Tavita for prosecution
D Roma for defendant.

Sentence:	22 September 2014

SENTENCE

1.	The police summary of facts which the defendant has accepted through his counsel says he is a 42 year old male of Tanugamanono is in a defacto relationship with the mother of the victim and has 6 children.  The victim is the defendants 8 year old step-son currently under the care of Samoa Victim Support Group and there is a permanent protection order in place against the defendant.  There are two charges against the defendant in relation to assaults carried out on separate dates on the victim.  
2.	I will deal firstly with the first in time information S511/14 actual bodily harm.  The police summary says that Saturday, 25 January this year the victim went to the local store to purchase some goods.  	While at the store he was attacked by their dogs and he ran home.  On returning home the victim told his mother and the defendant that another child at the store had made the dogs chase him.  However, a neighbour told the defendant the victim was lying and it was the victim who had provoked the dogs.  This made the defendant angry so he beat the victim with a wooden broom handle.  The beating caused bruising to the victims shoulder.  And the defendant also punched the young boy causing further bruising to his left eye.
3.	In relation to the second of the two offences this is information S1258/14 serious bodily injury with intent.  The summary says that this happened the next day Sunday, 26 January 2014.  On that day the victim was at home at Tanugamanono holding his baby brother while sitting on a chair.  He went to get off the chair but the babys head hit the wooden arm of the chair causing the baby to cry.  The defendant walked up to the victim and took the baby off him and kicked him in the chest.  The victims head went backwards and hit the concrete floor causing a laceration.  
4.	The victim was then ordered by his mother to go and fetch some items from a nearby store.  A taxi driver saw the victim and his injuries.  He asked the victim what had happened and the victim told him that his father the defendant had beat him.  The taxi driver reported this to the police and the victim was taken to hospital.  
5.	Where he was examined by doctor Tapelu who found as follows:  multiple bruises on the left eye and right cheek; a small laceration of the scalp approximately 2 cm. Photographs of the victim indicate that the scalp laceration was to the back of the head probably where it hit the concrete floor when the defendant kicked the victim in the chest.  Doctors report also notes swelling of the right hand, bruising on the left shoulder, substantial bruising clearly visible in the photographs, bruising on the left hand as well as a bruise on the left elbow.  The defendant was accordingly investigated and charged with causing these injuries to his step-son.  Charges to which the defendant pleaded guilty on trial date.  
6.	There is no doubt from the materials before the court that the victims actions provoked the defendant to anger.  But the defendant overlooked that the victim is only a young boy.  The summary says he is 8 years old and young boys require patience in correction and guidance.  Not the sort of treatment meted out by the defendant.  
7.	What you did Sio is contrary to the domestic laws of Samoa and to its international obligations which prohibit domestic abuse of children in all forms, in particular physical abuse.  Fathers and caregivers cannot be permitted to treat their children like you did your step-son.  Irrespective of how annoying and frustrating young children can be.  Certainly cannot punch them and kick them or use a broom handle on them.  The message from your sentence must be clear and unambiguous that if you do this to a young child imprisonment will likely be your fate.    	
8.	I will deal with information S511/14 first.  Which carries a 5 year maximum penalty.  I consider 3 years an appropriate start point for S511/14.  In respect of the defendants previous convictions I agree with counsel for the defence they are old and irrelevant to this offence.  Therefore no upgrade of start point is required for those.  The only real deduction you are entitled to Sio is for your guilty plea and for that I will deduct one-third of your penalty because it has avoided the child having to give evidence and saved the time of the court.  Plus indicates remorse.  That leaves 2 years in prison.  
9.	For S511/14 you will be convicted and sentenced to 2 years in prison.  
10.	In respect of the second charge of the second assault on the following day Sunday, 26 January S1258/14.  I note that the prosecution have charged you with a more serious offence which carries a 10 year maximum penalty.  That is probably because of the laceration which they regard as a more serious injury.  
11.	Again taking into account all circumstances a similar start point of 3 years is in my view appropriate.  Making the appropriate deduction of 1 year for your guilty plea that leaves 2 years in prison.  In respect of whether the penalty should be cumulative or concurrent I consider the two attacks are separate and distinct events on the same young boy.  And they are probably characteristics of a pattern of abuse although that is not specifically referred to in the police summary of facts.  It will therefore be ordered that the two sentences be served cumulatively.  In order words for these two offences Sio you will serve 4 years in prison.   Any time spent in custody awaiting sentence is to be deducted from that.  
HH:	ia o le a le mea lea e si’i mai ai lou aao Alosio?
Def:	lau afioga i lo’u ava ma lo’u fa’aaloalo tele, ou te taliina le iuga o le fa’amasinoga a’o le tagi atu ona o au e iai le fanau e iai le manaoga fa’apitoa ma o lo’u atalii lea e iai manaoga fa’apitoa. Ia pei o le talosaga lea i le ava ma le fa’aaloalo tele, e le mafai e le tina lea ona fa’atino le fafagaina ma mea uma fa’apena.  Ou te talosaga i lau afioga i lo’u ava ma lo’u fa’aaloalo tele ona o lenei atalii o taimi uma lava o a’u lava le fa’atinoga.  Fa’amolemole lau afioga ua ou talosagaina i lo’u ava ma lo’u fa’aaloalo tele.  E faigata tele ia te a’u lo’u alu i le falepuipui ae te’i ua fa’aletonu si o’u atalii lea lau afioga i lo’u ava ma lo’u fa’aaloalo tele.
HH:	ia o le tali foi o lau talosaga lena e le mafai ona talia e le fa’amasinoga lau talosaga lena.  Ae pau le fesoasoani e mafai ona tu’u atu, lea foi e fa’afofoga mai lau loia.  E leai foi se manatu o le fa’amasinoga ia e fa’apologa le tamaitiiti ona o le sese a oe.  O lo’o iai foi le victim support ma isi fa’alapotopotoga atonu e mafai ona fesoasoani i le tausiga o le tamaitiiti lea, pe maua se latou taumafaiga i le tausiga o le tamaitiiti lenei, a’o tulaga o le fa’asalaga leai e le mafai ona toe alofia e le fa’amasinoga le tulaga lea ua iai Alosio.  Po’o le a le faigata o le fa’aiuga lava lena leaga o le fa’aiuga e talafeagai ma lau solitulafono.  E le mafai la ona fa’apea e fai ia oe isi mea e fai i isi tagata isi fa’aiuga.  E le fa’apena le faiga o le tulafono.  Fa’afetai ua maea lau mataupu Alosio. 

JUSTICE NELSON