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Police v Talaloa [2014] WSSC 21 (9 June 2014)

SUPREME COURT OF SAMOA
Police v Talaloa [2014] WSSC 21

Case name: Police v Tutonu Talaloa

Citation: [2014] WSSC 21

Decision date: 9 June 2014

Parties:
POLICE (prosecution) and TUTONU TALALOA male of Falelauniu and Vaitele.

Hearing date(s):

File number(s): S46/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
Accused in person

Catchwords:

Words and phrases:
intent to cause actual bodily harm, aggravating and mitigating features, sentence

Legislation cited:
Crimes Act 2013 s.119 (1)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S46/14

BETWEEN

P O L I C E
Prosecution

A N D

TUTONU TALALOA male of Falelauniu and Vaitele.

Accused

Counsel:
L Su’a-Mailo for prosecution
Accused in person

Sentence: 9 June 2014

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of causing injury with intent to cause actual bodily harm, contrary to s.119(1) of the Crimes Act 2013, which carries a maximum penalty to seven years imprisonment. Initially, the accused pleaded not guilty to the charge but on 2 May 2014, which was the date of trial, he changed his not guilty plea to one of guilty.

The offending

2. The accused who are both 29 years old are brothers in law, the accused being married to the deceased’s sister. Apparently, the two men are very close to each other within their family.
3. On Friday 20 December 2013, the accused and the deceased were working together with other men of their village of Lotofaga, Safata, to build their pastor’s house. When the work finished around 7pm in the evening, the accused and the deceased went to the accused’s house at Lotofagā to drink the accused’s bottle of vodka and listened to music. The two men become quite drunk and the accused started complaining to the victim about the victim’s older brother. The accused became loud and noisy.
4. Later on, the victim changed the music they were listening to which made the accused angry. The accused then told off the victim for touching his memory card. The memory card then fell on the floor of the house. The accused looked for his memory card and when he could not find it he blamed the deceased for stealing it. The victim became angry and grabbed the accused’s throat. However, the accused’s wife who is the sister of the deceased intervened and the victim let go of the accused.
5. The victim then began to feel tired and that he was walking to their other family’s house to find a car to take him home. He then said goodbye to the accused and his wife and walked out. However, when the victim walked out of the house, the wife of the accused ran over and asked the deceased to come back and reconcile with the accused. According to what the accused told the probation service, that must have about 2am in the morning. The victim returned and reconciled with the accused by apologising to each other.
6. However, as the victim turned to leave, he was punched on the right side of his face by the accused. The deceased fell on the floor unconscious but the accused continued to punch him causing injuries to his face and body. When the victim regained consciousness, the accused and his wife took him to his house on the other side of the village. They told the victim’s wife to take the victim to the hospital.
7. The victim was first taken to the Poutasi District Hospital and then brought to the Tupua Tamasese Hospital in Apia for further treatment. The doctor who examined the victim at the TTM Hospital rated the following injuries: (i) the victim was in obvious distress with multiple lacerations to this face mainly around the eyes, and (ii) the victim’s face was heavily bruised with significant swelling. The victim’s wounds were cleaned and stitched. His head injury was also treated. The accused was then admitted to the surgical ward for three days for ongoing monitoring and management.

The victim

8. The victim is a school teacher. The victim impact report shows that the victim has fully recovered from his injuries without any further affect on him. He has forgiven the accused and does not think of his incident again. He also says that he is happy now and wishes nothing but the best for his sister and the accused. The pre-sentence report also shows that the victim told the probation service that this matter has been sorted out within their family and he wants the charge against the accused to be withdrawn.

The accused

9. The accused is from the village of Salailua in Savaii. His wife is a sister of the victim and they have two children. At the time of this offending, the accused was living with his wife at his wife’s maternal family at Lotofagā. He was also working at a plantation and doing fishing for the upkeep of his wife and their children as well as serving her wife’s family. The accused has apologised to his mother in law and the victim and this matter has been sorted out within the family. Since the incident, the accused has been living with his wife and children in his wife’s paternal family in the Apia areas.
10. The accused is also a first offender and the testimonial from his wife’s family and the pulenuu of Lotofagā show the accused to have been a person of good character prior to this offending. The testimonials from the pastor of the church the accused is now attending in the Apia area and his current employer also show the accused as a person of good character.
11. In other words, the present offending is out of character.
12. The present offence was also committed while both the accused and the victim were very drunk. The victim had also grabbed the accused by the throat which necessitated intervention by the accused’s wife.

The aggravating and mitigating features

13. The aggravating features of this offending are: (a) after the accused had punched the victim and the latter fell down unconscious, the accused continued to deliver punches at the victim and (b) the injuries sustained by the victim which necessitated the victim being admitted in the hospital for three days for monitoring and management.
14. The mitigating features personal to the accused are: (a) his apology to his mother in law and the victim which was accepted so that this matter has been sorted and within the family, (b) the fact that the accused had been a person of good character prior to the commission of this offence and his continuing good character as shown from his testimonials from his new pastor and current employer, and (c) the accused’s plea of guilty through belated.

Discussion

15. After considering the aggravating and mitigating features, I have come to the conclusion that a custodial sentence is not appropriate in this case.
16. The accused is given a suspended sentence for 6 months on the condition that he remains in good behaviour during that period of time. He is also ordered to pay $25 costs to the prosecution.
    

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CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution