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Police v Nansen [2015] WSSC 14 (4 March 2015)

SUPREME COURT OF SAMOA
Police v Nansen and Eperu [2015] WSSC 14

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

AND

SAMMY NANSEN male of Aleisa and TUIALA EPERU also male of Aleisa
Accused

Counsel:
F Lagaaia for prosecution
S Wulf for accused

Sentence: 4 March 2015

S E N T E N C E

The charges

1. The accused Sammy Nansen (Sammy) and Tuiala Eperu (Tuiala) were jointly charged with the offence of causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. The accused Sammy was also individually charged with a separate charge of causing actual bodily harm with intent. Initially, the accused pleaded not guilty to the charges. When the prosecution withdrew the individual charge against Sammy on the date of hearing, both accused vacated their not guilty pleas to the joint charge against them and entered guilty pleas.

The accused and the victim

2. The accused Sammy and the victim are first cousins; their fathers are brothers. The accused Tuiala is married to Sammy’s sister who is also a first cousin of the victim. All three men are therefore closely related. They live on their family land at Aleisa.

The offending

3. At around 8pm on Sunday evening 27 July 2014, the victim went to the house of the family of Sammy and Tuiala to join a birthday celebration of Sammy’s father. When he arrived at the house of the family of Sammy and Tuiala, the birthday feast had already started. Alcohol was also being consumed and the accused were drinking beer outside the house. The victim joined the accused and started drinking beer with them. At some stage in the evening, the victim’s brother in law Taumaoe joined the accused and the victim and drank beer with them.
4. According to the pre-sentence report, Sammy told the probation service that later in the evening, Taumaoe became too drunk and he therefore took him home. After he returned to Tuiala and the victim who were still drinking, Taumaoe returned to their drinking session which angered the victim who then punched Taumaoe causing him to fall to the ground. Taumaoe sustained a cut lip and a wound to his head. Sammy then got into an argument with the victim because of what the victim had done to Taumaoe. He picked up a beer bottle and threw it at the victim hitting the victim on the face above his left eye causing the victim to fall to the ground.
5. It appears from the prosecution’s summary of facts that Sammy must have then left the victim and when the victim recovered from the bottle thrown at him by Sammy, he went looking for Sammy. At that time, Tuiala approached the victim and hit him with a plastic chair causing the victim to fall on the ground. Tuiala then hit the victim again with the same chair to stop him from fighting with Sammy. This resulted in scratches and bruises to the victim’s face. Family members intervened and stopped the fight.
6. The victim was taken to the hospital the same night. He was found to be bleeding from two lacerations: one above the left eye and one on the left upper lip. There were also minor abrasions around his face.

The accused Sammy

7. The accused Sammy is 32 years of age. He and his wife have one child and he is the sole breadwinner of the family. He earns his money from his trade as an engineering mechanic and from his plantation.
8. As already mentioned, Sammy and the victim are first cousins. Sammy and the accused Tuiala have apologised to the victim and his parents and the apology was accepted. The matter has therefore been reconciled and settled between the two accused and the victim. The victim has also written to the police to confirm that this matter has been reconciled and he wants it to be withdrawn as he has forgiven the accused and feels mercy for them as they are his brothers.
9. The accused Sammy is also a first offender and the testimonials from his wife, the reverend deacon of his church, and the pulenuu of his village all show that he had been a person of good character prior to the commission of this offence. He is described as a shy and reserved individual.

The accused Tuiala

10. The accused Tuiala is 36 years of age. He is married to the sister of the accused Sammy and they have two young children. He is the sole provider for his family. He finished school at year 11 and then took up employment as a security officer and then as a brick layer before taking up his present employment as a machine operator with a brick manufacturing company in 2006.
11. The accused Tuiala is also a first offender and the testimonials from his wife and the pulenuu of his village show that he had been a person of good character before the commission of this offence. He is also described as a shy and reserved person. He has also apologised with the accused Sammy to the victim and his parents and the apology was accepted and there has been a reconciliation. The victim, as already mentioned, has also written to the police to withdraw this matter against the accused as he has forgiven them and he feels mercy for them as they are his brothers.

The victim

12. The victim is 28 years of age. As shown from the victim impact report, this matter has been reconciled between the victim and the accused. The victim says in the victim impact report that the accused are his cousins and he has forgiven both of them and he is happy to forget this incident.

The aggravating features relating to the offending

13. In respect of the accused Sammy, the only aggravating feature relating to the offending is his throwing of a beer bottle at the victim which hit the victim above the left eye causing him to fall on the ground. This action by Sammy might have caused the laceration the doctor found above the victim’s left eye and the laceration on the victim’s left upper lip..
14. In respect of the accused Tuiala, the only aggravating feature relating to the offending is his hitting the victim with a plastic chair causing the victim to fall on the ground and then hitting the victim again with the same chair to stop him from fighting with Sammy. These actions by Tuiala might have resulted in the abrasions around the victim’s face as found by the doctor.

The mitigating features relating to the offending

15. It was the assault by the victim on his brother in law Taumaoe in the presence of the two accused that provoked this assault by the accused on the victim. The victim punched Taumaoe who was too drunk on the mouth causing Taumaoe to fall on the ground with a cut lip and a wound to his head. It was then that Sammy threw a beer bottle at the victim causing the victim to fall on the ground.

The mitigating features relating to the accused as offenders

(a) Previous good character

16. Both accused are first offenders and had been persons of good character prior to the commission of this offence.

(b) Reconciliation

17. Both accused have apologised to the victim and his parents and their apology was accepted and this matter has been reconciled and settled between the accused and the victim.

(c) Wishes of the victim

18. The victim has written to the police that he wants this matter to be withdrawn as this matter has been reconciled and he feels mercy for his brothers. In the particular circumstances of this case, I have decided to give credit to the wishes of the victim.

(d0 Guilty pleas

19. Even though the guilty pleas by the accused were rather belated, I have decided to give the accused some credit for their guilty pleas.

Discussion

20. Having regard to the aggravating and mitigating features, the context in which this offending occurred, and the absence of any premeditation, I have decided not to impose custodial sentences.

The result

21. Each of the accused is given a suspended sentence of 7 months. If they do not re-offend within that time then that is the end of this matter. But if any of them re-offends within that time, then that accused will be brought back to Court and sentenced for this offence and for the new offence he has committed.

Honourable Chief Justice Sapolu