STATE OF TASMANIA v FIAPAITOFI SAMU and TAVITA GALUVAO
7 NOVEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Samu and Mr Galuvao, each of you has pleaded guilty to the crimes of commit an unlawful act intended to cause bodily harm and aggravated robbery. The crimes occurred in the early hours of 14 April 2024 in Rooke Street in Devonport. At the time of the crimes, Mr Samu was aged 30 years and Mr Galuvao was aged 22 years. The victim in the matter was a Mr Basol. He was aged 36 years at the relevant time. I say now that whilst there is an age difference between Mr Samu and Mr Galuvao, I see no basis to distinguish between them in terms of their criminal responsibility. Each of them participated equally in the violent assault that was perpetrated upon Mr Basol, and each is liable for the theft of the items using violence.
Early in the morning of 14 April, Mr Basol had left the Pub Rock Diner in the Rooke Street Mall in Devonport. Coincidentally, both defendants were standing on the corner of the Mall. As the complainant walked past them, he yelled at each defendant. According to the defendants, the comments he made were unpleasant. Mr Basol walked away a short distance before turning around and heading back in the direction of the defendants and, again, yelling at them, including saying things like “fuck off”. I accept at this point, neither defendant had done anything towards Mr Basol. They had not spoken to him. It was Mr Basol who, at this point, displayed abusive and aggressive behaviour towards them.
Thereafter, Mr Basol and the defendants went in different directions for a period, but at about 4.27am, both defendants were walking along Rooke Street, near the corner of Steele Street. The complainant, Mr Basol, was on the other side of the road. He crossed over the road and approached both defendants. As he did so, Mr Samu punched the complainant to the face, causing him to fall to the ground. Each defendant then proceeded to kick the complainant multiple times to the head and body. They also stomped on his head and body, causing him to lose consciousness. Even after he had passed out, both defendants continued to kick and stomp him.
CCTV footage of the attack was obtained from a nearby building. I have seen that CCTV footage. The attack could only be described as a brutal and dangerous one, particularly once Mr Basol was vulnerable on the ground.
The complainant was wearing a black Adidas bumbag. It contained a set of car keys and $300 in cash. At one point whilst the complainant was on the ground, Mr Samu picked him up by the bumbag and unclipped it, before slamming the complainant back down onto the ground. Both defendants then walked away, taking with them the complainant’s bumbag.
The complainant was unconscious on the ground for an unknown period. When he regained consciousness, he approached a nearby business for assistance and ambulance and police were notified. The complainant was taken to the Mersey Hospital. A CT scan revealed nasal bone fractures with mild displacement and a small left frontal scalp haematoma with no underlying fracture. Additional injuries observed included a small laceration to the right side of the scalp, a three-millimetre laceration over the bridge of the nose, a swollen upper lip and tenderness over the cheek bones, nose and abdomen.
As a consequence of the CCTV footage, both defendants were identified as being involved in this incident. They voluntarily attended the police station and participated in interviews. Mr Galuvao described the complainant yelling “vulgar words at them and swearing”. He said he felt the complainant was following them and that they did not wish for him to continue to follow them. He said that he and Mr Samu did not discuss assaulting the complainant, but “it just happened”. He conceded that he and Mr Samu went “too far” and because of the amount of alcohol he had consumed, he “did not stop”. He said that he felt “bad and sad” and very much regretted his behaviour and wished to apologise to the complainant.
Mr Samu also described that the complainant had been swearing at them. He said that the attack was not planned, but that when the complainant crossed over to them, he thought he may have been reaching for a gun, so he punched him. He said that he did not stop punching and kicking, and he should have. He felt sorry for the complainant and wished to apologise. Mr Samu also admitted taking the complainant’s bag and contents. He subsequently made arrangements for the bumbag to be returned to Tasmania Police. When it was returned it did not contain, the $300 nor the car keys.
At the time these crimes were committed, both defendants were in Tasmania working in vegetable harvesting to send money home to their respective families in Samoa. Mr Galuvao is now 23 years of age. He came to Tasmania to work to assist his family in Samoa. Much of the money he had earnt was returned to his family. Since this incident and prior to his remand in custody, he had not been able to pursue any employment and was reliant on friends for support. When he returns home, he anticipates he will face adverse consequences from his village elders and church members.
Similarly, Mr Samu, who is now 31 years of age, was working to send money home to his family in Samoa. He has four children and is the primary income earner for his family. He, too, anticipates that he will receive sanctions from his village elders upon his return to Samoa. He is nevertheless keen to return to his country and resume employment in either the fishing or building industry and continue to provide for his family.
Neither defendant has any history of prior criminal offending.
I take into account the defendants’ pleas of guilty. They were entered at a very early stage. I also take into account the admissions each defendant made to police. Those admissions were made in circumstances where the prosecution against each defendant would have been reliant upon identification from CCTV footage. I accept the admissions made and the early pleas of guilty carry weight in the sentencing exercise. I also accept they are reflective of remorse for their behaviour.
I take into account the behaviour of the complainant, to the extent it provides a context for the offending. I accept his behaviour was abusive and provocative, but the response of the defendants, although impulsive, was particularly violent and entirely unjustified. The complainant was intoxicated, unarmed and it was a two against one attack. Once the complainant was on the ground, he was particularly vulnerable, yet both defendants kicked and stomped on him on numerous occasions and rendered him unconscious. Mr Basol was on a hard cement footpath. What each defendant did was inherently dangerous. The violence was inflicted with an intention to do grievous bodily harm. The kicking and stomping had the capacity to cause serious and lasting injury. As a matter of fact, Mr Basol sustained a broken nose, bruising, cuts and swelling, which all resolved without medical intervention; but the potential for the injuries to have been far worse is obvious. Whilst Mr Basol may have recovered physically, he continues to experience some difficulties with his nose constantly running, and he is having difficulties in seeing a specialist because his car has been rendered inoperable by the theft of his car keys. Mr Basol also now feels wary going out in public and does not trust others.
The crime of committing an act intended to cause bodily harm is at a high level of general seriousness in the hierarchy of violent crimes. It is made up of an unlawful act with the intention to do serious harm, in this case, grievous bodily harm. It is the sinister intent, coupled with the brutality of the assault, which makes the defendants’ behaviour on this occasion so serious. Whilst there is no immutable rule, this crime ordinarily attracts a term of imprisonment in the range of three to seven years, because principles of general and personal deterrence and denunciation carry much weight in sentencing.
This was not a planned or pre-meditated crime. I accept, you were confronted with a potentially stressful and intimidating situation, but really, you could have just walked away. Instead, you decided to use your fists and feet as weapons and assault the complainant to the point of unconsciousness. It is my duty to make clear the consequences of serious violent crime in our community in the hope that it will encourage you and others to think better of it into the future.
I make clear, but for your pleas of guilty, the sentence I am about to impose upon each of you would have been in the vicinity of six months longer. Mr Samu, Mr Galuvao – each of you are convicted and I impose one sentence. You are both sentenced to imprisonment for three years from 21 September 2024. I order that you not be eligible for parole until you have served half of that term of imprisonment.
I make a compensation order in favour of Deniz Basol for an amount to be assessed.