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Police v Vaifale [2013] WSSC 95 (15 July 2013)

SUPREME COURT OF SAMOA

Police v Vaifale [2013] WSSC 95

Case name: Police v Vaifale

Citation: [2013] WSSC 95

Decision date: 15 July 2013
Parties:
POLICE (Prosecution) v ELIKA VAIFALE male of Patamea. (First Defendant) and SAKARIA ELIKA male of Patamea. (Second Defendant)

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
F E Nimata for prosecution
T Atoa for first defendant
R Schuster for second defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

ELIKA VAIFALE male of Patamea.
First Defendant

AND:

SAKARIA ELIKA male of Patamea.
Second Defendant

Counsel: F E Nimata for prosecution
T Atoa for first defendant
R Schuster for second defendant

Sentence: 15 July 2013

SENTENCE

The defendants have pleaded guilty to wilfully and without lawful justification causing grievous bodily harm to Reopoamo Talalima. The victim is a male of their village of Patamea in Savaii.

The first named defendant Elika Vaifale is a 46 year old male married with five children. He has worked most of his life to support his parents and his other dependents. And he is a “faifaatoaga” by occupation. He is presently living at Mulifanua because he has been banished from his village as a result of this incident. But the probation office pre-sentence report indicates that he was a born and raised at Patamea in Savaii. He is well spoken of by his pastor and his wife. And as family head he was responsible for the upkeep of his immediate and extended family as all matais are. A prison term would undoubtedly affect his family and those dependant on him who had nothing to do with this incident.

The second named defendant is Sakaria Elika his son. He is 21 years of age and single. As a young Samoan male he works on the family plantation and does his bit for the upkeep of the family.

The complainant is a 41 year old male of Patamea. And as confirmed to the court this morning by the first defendants brother he is a cousin of the first defendant.

The police summary of facts states that on Saturday 29 September 2012 in the afternoon the defendants were working on a job at their auntys place at Patamea. While they were conducting the job an argument or a dispute broke out between the second defendant Sakaria and the complainant. The complainant was scolding Sakaria and Sakaria was answering him back. This led to the complainant punching Sakaria in the mouth causing him to fall to the ground.

Upon seeing this the first defendant Elika grabbed a shovel and swung it at the complainant. The complainant used his hand to deflect the swing but the defendant Elika swung again. This strike hit the complainants shoulder and caused the shovel handle to break. Other villagers who were at the scene intervened and stopped the fight. The defendants then left the scene.

The complainant was taken inside the auntys house by her and she was treating his hand. After some time the defendants returned to the house. The police summary says that the defendant Sakaria entered the house and punched the victim in the mouth. The other defendant Elika came up behind the complainant, grabbed him and pushed him out of the house. The summary then says the two defendants assaulted the complainant outside the house using rocks. Their aunty tried to intervene but they continued with the attack. Eventually the assault ceased and the defendants left.

This summary was initially challenged by counsel for both the defendants. Counsel on behalf of the first defendant Elika submitted that because the medical report of the complainant made no reference to a shoulder injury therefore there was no shoulder injury. Suggesting that therefore there was no strike by the first defendant Elika to the shoulder of the complainant at the initial confrontation.

The problem with that argument is the cautioned statement of the first defendant Elika himself to the police. A statement which has not been challenged. In it he says at page 2:

“Fesili: o e manao e fai sau faamatalaga pe leai?

Tali: leai, ae oute ioe atu lava o a’u na ou tu’iina le gutu o Mapu Reopoamo i le maa ma sa ou taina muamua foi i le suō”.

The challenge to this part of the police summary of facts was subsequently withdrawn by counsel.

Co-counsel for the second defendant Sakaria on behalf of his client stated that Sakaria maintained both defendants returned to the complainants house to apologise and not for any other purpose. There was also an issue as to the second defendants assertion that the complainant armed himself with rocks first.

Evidence was accordingly called by the prosecution and this evidence establishes to my satisfaction that what is in the police summary of facts paragraphs 9 to 13 is essentially what happened. And some time after the initial confrontation the defendants returned to the house where the complainant was being treated by his aunt.

The evidence shows the son, the second defendant entered through the front of the house and his father Elika went around the back. Sakaria went straight to where the complainant was being treated and began questioning him. When he received no satisfactory response he assaulted the complainant. His father then entered the house through the back and both defendants dragged the complainant out of the house. Where they jointly assaulted him using fists and rocks. Their elderly aunt tried to intervene but could not prevent this occurring. There is no evidence to support Sakarias testimony that it was the complainant who first armed himself with rocks or to support his ridiculous suggestion that the complainant was injured when he fell onto bricks outside of the house.

I also doubt very much the suggestion that the two men went back to the house to apologise. This may have been their original intent but at the house it soon changed to something completely different. Furthermore the sons action in going straight into the house and confronting the complainant while his father came around through the back of the house. These are not the actions of remorseful people returning to apologise for earlier misunderstandings. Sakaria in his own testimony to the court confirmed that is what the two of them did.

The seriousness of the offending especially the resort to use of weapons by the defendants demands a penalty of imprisonment. To denounce the actions of the defendants and to send a message to them and to others that if you act like this and cause serious injury you can expect a severe penalty.

The medical report on the complainant indicates that he suffered head injuries; a fracture of the base of the skull; swelling to the eyes and around the eye areas; fracture of the right part of his jaw; broken and missing teeth; and bleeding gums and swollen tissues of the face and cheeks. The injuries were extensive and no doubt caused much pain and discomfort. It required hospitalisation for over a week and the victim impact report indicates it took about two months for the injuries to heal.

This is a case where two defendants a father and son jointly assaulted one man. I accept the complainant provoked the initial attack by Elika. But that attack seems to have caused no real injury. It was the second attack which caused the injuries and there is no evidence that the complainant did anything to provoke the second attack.

Considering all the relevant factors a higher than normal start point is justified because this is a joint attack by the two of you on an unarmed man. The maximum penalty for the offending is 7 years in prison Elika and Sakaria. An appropriate state point would be 5 years. That must be upgraded to 6 years to reflect the fact that you used rocks in your assault. Which of you used the rocks and how many times is not the issue. The issue is that one or both of you used rocks and each of you was aiding and abetting the other. And this attack was continued over the pleas for mercy of your neutral elderly aunty who tried to stop you.

From the start point of 5 years in prison gentlemen you are entitled to certain deductions in mitigation. Even though you both challenged aspects of the summary of facts I propose to nevertheless give you both full credit for the guilty pleas that you have entered. But that credit must take into consideration the fact that you entered those guilty pleas only on trial day. For that guilty plea I deduct one-quarter of your sentence namely a period of 18 months leaving a balance of 54 months. For your good previous record of service to your aiga your village and your community as well as the church I will deduct from both your sentences a period of 6 months. That also includes a deduction for the fact that this is your first court appearance. For the fact that you have been banished as a punishment by your village I will deduct a further 6 months from both your sentences. And for the fact that there have been the required apologies and traditional reconciliation and settlement as confirmed to the court this morning Elika by your brother I will make a further deduction of 6 months from your sentences. Deducting that 18 months from your 54 months balance leaves a period of 36 months in prison.

For this matter you will both be convicted and sentenced to a period of 3 years in prison.

.........................
JUSTICE NELSON