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Police v Tonu'u aka Alovao [2014] WSSC 3 (10 January 2014)

SUPREME COURT OF SAMOA

Police v Tonuu [2014] WSSC 3

Case name: Police v Tonuu

Citation: [2014] WSSC 3

Decision date: 10 January 2014

Parties: POLICE (Prosecution) and ALATINA TONU’U aka ALATINA ALOVAO

Hearing date(s):

File number(s): S2627/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
R Titi and J Nelson for prosecution
Accused in person

Catchwords:
Words and phrases:
Sentence, Intentional damage, aggravating and mitigating features, starting point for sentence,

Legislation cited:
Crimes Act 2013 s184(2)(a)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S2627/13

BETWEEN

P O L I C E

Prosecution

A N D

ALATINA TONU’U AKA ALATINA ALOVAO male of Fugalei

Accused

Counsel:

R Titi and J Nelson for Prosecution

Accused in person

Sentence: 10 January 2014

S E N T E N C E

The charge

1. The accused Alatina Tonu’u aka Alatina Alavao who is a male of Fugalei appears for sentence on a charge of causing intentional damage to property, contrary to s.184 (2) (a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. To the charge, the accused pleaded guilty at the earliest opportunity.
2. I do not accept that the charge was intended to be preferred under s.184 (1) of the Act which carries a maximum penalty of 14 years imprisonment as stated in the prosecution’s summary of facts. That is because s.184 (1) (a) relates to causing intentional damage to property where the accused “knows or ought to know that danger to life is likely to result.” But there is nothing in the summary of facts to show that any life was endangered at the time this offence was committed. The appropriate provision should therefore be s.184 (2) (a) which relates only to causing intentional damage to property without any additional requirement that the accused “knows or ought to know that danger to life is likely to result.” The maximum penalty for the offence under s.184 (2) (a) is 7 years imprisonment.

The offending

3. This incident occurred on Monday night 4 November 2013 around 9.00pm at the Fugalei taxi stand which has a pool table used by the drivers of the taxi stand for playing billiards. One Uili who drives one of the taxis for the proprietor of the taxi stand was playing billiards inside the taxi stand with another taxi driver. His taxi was parked outside.
4. Whilst Uili and the other taxi driver were playing billiards, the accused who was under the influence of alcohol arrived. He approached the pool table and grabbed hold of the billiard balls. This angered Uili who then scolded the accused saying, “E le fetaui lau mea ua fai ole ao o polo piliaki ae o lo’o fai le ma taaloga.”
5. Shortly afterwards, the accused approached Uili and punched him on the mouth. A scuffle then broke out between the accused and Uili. They moved outside of the taxi stand and continued fighting. The accused then approached Uili’s taxi and slammed his elbow onto the windscreen of the taxi causing it to break which suggests that the accused must have applied his elbow with much force. The estimated value of the windscreen is more than $1,000 according to the summary of facts. On the other hand, the accused told the Court that the estimated value of the windscreen is $850 as he was told by the owner’s younger brother. I accept the value given in the summary of facts by the prosecution.

The accused

6. The accused is 50 years of age. He had a low level of education having left school at year 9. He has separated from his wife and three children. He is currently employed as a groundsman earning $150 a week.
7. The accused has 26 previous convictions dating back to 1983. His last conviction was in 2011. Of his 26 previous convictions, seven involved the use of violence including one for manslaughter in 1990. There are also five previous convictions for uttering insulting words, one previous conviction for threatening to kill, six previous convictions for drunkenness, two previous convictions for theft, one previous conviction for unlawful conversion and one previous conviction for escape. This is a bad criminal record. It reflects the lack of respect of the accused for the law and the type of person he is.
8. There is no character testimonial for the accused from anyone. According to the pre-sentence report, when the accused was interviewed by the probation service, he was reluctant to tell the probation service about any member of his family who was available to provide a character testimonial for him. He also did not provide any testimonial from his own current employer.
9. The accused however has paid partial compensation of $300 to the owner of the damaged taxi. He has also pleaded guilty to the charge against him at the earliest opportunity.

The aggravating and mitigating features

10. In relation to the offending, the aggravating features are (a) the arrogant behaviour of the accused whilst under the influence of the alcohol which provoked this incident,(b) the act of damaging the windscreen of the taxi and (c) the value of the windscreen which he damaged . In relation to the accused as offender, the only aggravating feature is his previous convictions many of which involved the use of violence, threats of violence, and drunkenness. It seems that the accused has an anger and alcohol problem.
11. There is no mitigating feature relating to the offending. But there are two mitigating features personal to the accused as offender. These are the partial compensation he has paid for the damaged windscreen and his guilty plea to the charges against him at the earliest opportunity.

Discussion

12. Having regard to the aggravating features relating to the offending, there being no mitigating features in this regard, I will take 7 months as starting point for sentence. There will be an uplift of 2 months to the starting point for the accused’s previous convictions. That raises the starting point to 9 months. I will deduct 2 months for the partial compensation paid by the accused to the owner of the damaged taxi. That leaves 7 months. I will further deduct 2 months for the guilty plea. That leaves 5 months.

Result

13. The accused is sentenced to 5 months imprisonment.
14. Any time the accused has been in custody pending the outcome of this matter is to be further deducted from that sentence.
    

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CHIEF JUSTICE