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Police v Asomaliu [2023] WSSC 75 (17 November 2023)

IN THE SUPREME COURT OF SAMOA
Police v Asomaliu [2023] WSSC 75 (17 November 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

ASOMALIU ASOMALIU male of Leufisa and Saoluafata

Defendant

Counsel: E. Lam for the Prosecution

Defendant in person

Sentence: 17 November 2023

SENTENCE

Charges

1. You appear for sentence this afternoon on 4 charges. The first is aggravated robbery, the maximum penalty is 14 years imprisonment. The second charge is intentional damage; the maximum penalty is 7 years imprisonment. The third charge is causing injury, the maximum penalty is 7 years imprisonment. And the fourth charge is common assault, the maximum penalty is 1 year imprisonment. You pleaded guilty to all 4 charges on the 4th September 2023.

Offending

2. On the 1^st August 2023 at Leufisa, the victim had been drinking alcohol with a nephew. The nephew was sent for more alcohol and the victim went after him when he took long. When the victim got to the LDS chapel at Leufisa, you approached and accused him of an earlier incident relating to the LDS chapel. The victim denied being involved which made you upset.
3. You pulled him by the collar and punched him on the face. He fell heavily on the ground and lost consciousness. You then kicked his face causing bleeding to his left eye. You grabbed him by the head and again directed punches to his face. You continued to kick his face whilst two of your co accused took his wrist watch. You then removed his pants with the help of your co accused, dragged him to the edge of the road where you kicked him again causing him to roll into a small ditch on the side. You fled and left the victim there.
4. He later regained consciousness and woke up to find his watch and pants missing. The victim’s family found out about the incident. His mother picked up both him and his nephew and took them home to Laulii. She discovered blood stains on the victim’s shirt. A week later on the 8^th August 2023 she reported the incident to police. Police took you in later the same evening.
5. In the pre-sentence report you say that you were informed by a co accused about a drunk person in front of the LDS church. You all then gathered in front of the church to find out and saw the victim climbing the locked gates after you heard the sound of broken glass from the church. You approached to ask what he was doing there but he replied to mind your own business.
6. You suggest that you were provoked to grab the victim by the collar, punched him and continued assaulting him with your co accused as stated in the summary. In the victim impact report, he denies throwing rocks at the church and says that you and your co accused had made up the story as an excuse. Even if the victim was responsible for the incident at the church, the extent of your joint assault on him as stated in the summary was completely disproportionate to what you claim to be the provocative act.

Victim

7. The victim is 25 years of age. There is no medical report as to his injuries. But in the victim impact report he says that he suffered no serious injuries and was discharged from hospital the same evening - most likely because as the material suggests, he was not taken to hospital immediately after the incident.
8. He says further in the VIR that he suffered bruising to his face and eyebrow, which healed after 2 weeks. He further says that his apple watch that you and your co accused took and damaged was a gift worth $600AUD. He confirms that your family had performed an ifoga which was accepted by their family.

Aggravating Factors

9. I consider these aggravating features of your offending:
   • (i) this was a group assault;
   • (ii) this was an unprovoked assault;
   • (iii) the gravity of the assault – it involved multiple blows of punches and kicks, with most aimed at the head and face which continued even when the victim was on the ground and unconscious. The consequences could have been far more serious. I consider also that following the assault you left the victim unconscious at the scene. I also consider that the victim was defenceless and vulnerable, he was already on the ground unconscious but the assault continued;
   • (iv) the impact - whilst no medical report was provided, it is not denied that the attack was aimed mostly at the head and face; and as stated in the VIR, the bruising and swelling healed after 2 weeks;
   • (v) other than not rendering the victim help or call for help following the attack, one of your group saw fit to record the incident by phone and distribute it widely on social media. It was widely condemned by members of the public and in a positive way brought the incident to the attention of police and led to the charges against you and your co accused.
10. As offender there is record by Probation that you have appeared before the District Court before on charges of being armed with a dangerous weapon and intentional damage on which you were discharged without conviction. You will be sentenced as having no history of previous convictions.

Mitigating Factors

11. In mitigation I consider:
    • (i) your guilty plea;
    • (ii) the reconciliation confirmed in both the pre-sentence and victim impact reports;
    • (iii) your personal circumstances - you are 21 years of age and fifth of seven children. You ended your formal education at Primary level and have had a number of jobs to assist your family. Your mother describes you as a good person who was never involved in trouble as a youngster. You are well behaved and do not drink or smoke. She seeks leniency in sentencing. And as I have said before, the Court will sentence you as a person with no previous convictions.

Discussion

12. This is one case in a new trend of serious group assaults being filmed by the assailants themselves and distributed widely on social media. The lack of concern shown for the victim’s safety and impact on the community; and disregard for the law is disturbing and must be stamped out.
13. The sentence must hold you accountable for the harm caused to the victim, denounce your conduct and more importantly deter you and others who may be disposed to commit the same offending. In view of the gravity of the offending, a custodial sentence is appropriate.
14. Prosecution recommend a starting point of 3½ years on the lead charge of aggravated robbery. I have carefully reviewed the authorities they cite in support. The cases of Police v. Pio [2019] WSSC 63; Police v. Ioelu [2013] WSSC 129; Police v. Faatau [2014] WSSC 75; and Police v. Smith [2018] WSSC 92.
15. I adopt 4 years as the appropriate starting point. I make these deductions - For the reconciliation and ifoga, I deduct 12 months. For your personal circumstances including your young age and fact that you have no previous convictions, I deduct 12 months. The remainder is 2 years or 24 months. I make a final deduction of a third of that remaining term being 8 months for your guilty plea. The end sentence is 16 months.

Result

16. The sentence is as follows:
    • (a) On the charge of aggravated robbery, you are convicted and sentenced to 16 months imprisonment;
    • (b) On the charge of causing injury, you are convicted and sentenced to 9 months imprisonment;
    • (c) On the charge of common assault, you are convicted and discharged;
    • (d) On the charge of intentional damage, you are also convicted and sentenced to 6 months imprisonment;
    • (e) The imprisonment terms for aggravated robbery, causing injury and intentional damage charges are to be served concurrently.

JUSTICE ROMA