Police v Foaiaulima [2016] WSDC 41 (7 October 2016)

DISTRICT COURT OF SAMOA
Police v Foaiaulima [2016] WSDC 41

Case name:	Police v Foaiaulima
Citation:	[2016] WSDC 41
Sentence:	7 October 2016
Parties:	POLICE v PARATISO FOAIAULIMA, male of Lepea and Tuanaimato.
Hearing date(s):	23 September 2016
File number(s):	D124/16.D125/16.
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	JUDGE LEIATAUALESA D M CLARKE
On appeal from:
Order:	- Convicted and sentenced as follows: (i) Information D124/16 – assault Siniva Williams – 6 months supervision with special condition that you carry out a 8 weeks anger management program with the Samoa Victim Support Group and 40 hours community work; and (ii) Information D125/16 – assault Mafoe Williams – come up for sentence in 6 months if ordered by the Court.
Representation:	L Sio for National Prosecution Office L R Schuster for defendant
Catchwords:	Reckless Disregard – causing actual bodily harm – assault
Words and phrases:
Legislation cited:	Crimes Act 2013 s.119(2) & s.123
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

PARATISO FOAIAULIMA, male of Lepea and Tuanaimato.
Defendant

Counsel:
Ms L Sio for National Prosecution Office
Mr L R Schuster for defendant

Sentence: 7 October 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Paratiso, you appear for sentencing on two charges that on the 5^th February 2016, you:
   • (a) acted with reckless disregard for the safety of Siniva Williams causing actual bodily harm to her in breach of section 119(2) of the Crimes Act 2013 which carries a maximum penalty of 5 years imprisonment (Information D124/16); and
   • (b) assaulted Mafoe Williams in breach of section 123 of the Crimes Act 2013 which carries a maximum penalty of 1 year imprisonment (Information D125/16).
2. You initially entered a not guilty plea to the charges before the Court. On the hearing date of your matter, you vacated your not guilty pleas and a plea of guilty was substituted to both charges.

The Offending

3. You disputed two key aspects of the Summary of Facts. The first is that you claimed that prior to assaulting the victim Siniva Williams, she first punched you. You also disputed the Summary of Facts that you punched Siniva while she was on the ground. In my oral decision of 8 September 2016, I accepted that Siniva first punched you and that you did not punch Siniva while she was on the ground. I did however accept that you punched her twice and in your own evidence at hearing, you said you punched her 2 or 3 times.
4. According to the Summary of Facts and as I have found, on the night of the 4^th February 2016, Siniva had a night out. During the night out, you had an altercation with her. She returned home at about 12.30am to 1.00am on the 5^th February 2016. At the time of your offending, you were Siniva’s partner. When Siniva arrived to her home at Lotopa in a taxi, you also arrived. You then walked to Siniva while she was in the taxi and snatched her cell phone from her. You walked back to your pick-up. Siniva followed you and at the pick-up, she took the phone from your pocket. An argument ensued and Siniva then punched you. You then punched Siniva striking her eye. As I found on the evidence, you struck Siniva twice.
5. During this commotion, Siniva’s sister Mafoe Williams ran out from their house. She ran to you and tried to stop you and she had a verbal argument with you. You became angry with her and punched her on the right cheek causing her to fall to the ground.
6. Siniva suffered injuries and bruising to her face as shown in exhibit P1 tendered during the Disputed Summary of Facts hearing. Mafoe sustained swelling to her cheek where your punch landed.

The Accused

7. You are a 28 year old male of Lepea and Tuanaimato. You were in a de-facto relationship with Siniva. You have one son together with Siniva. You are employed with Quality Home Furnishings, Apia and part-time with TV 3.

The Victim

8. The first victim is Siniva. She is 23 years of age and is the mother of your child. She is employed as a public servant. The second victim is Mafoe, Siniva’s older sister. She is a teacher.

Aggravating features

9. The aggravating features of your offending are as follows:
   • (a) Your offending occurred within the context of a domestic relationship as defined by the Family Safety Act 2013 in relation to Siniva;
   • (b) Your offending occurred in the vicinity of the victims’ home in a residential area in the early hours of the morning disturbing the peace of the area;

(c) There were two victims to your assaults; and

(d) The nature of the injuries to Siniva.

The mitigating features of your offending

10. The only mitigating feature of your offending is that there was an element of provocation to your offending because Siniva first punched you before you then assaulted her. This benefit however is materially reduced by the fact that the confrontation between you and the first victim was started by you going to her home, going to the taxi, taking her phone and taking that phone with you to your car. You had no right to do so and had you not gone to her home and then taken her phone, this whole incident would not have occurred.

The Aggravating Factors as Offender:

11. There are no aggravating factors personal to you as an offender.

The Mitigating features as Offender:

12. First, I take into account that you entered a guilty plea. This however was on the date of hearing so the benefit that you receive is reduced accordingly.
13. Secondly, I take into account your remorse reflected in your affidavit with the Court.

Application for Discharge Without Conviction:

14. Through your counsel, you have applied for a discharge without conviction. The exercise of the Court’s discretion under section 104 has been discussed in previous decisions of the Courts including in Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011), a sentencing decision of His Honour Sapolu CJ. In that decision, the Court adopted as the relevant approach in determining the question of whether to discharge an accused without conviction under section 104(1)(b) under Criminal Procedure Act 1972 the three step approach in R v Hughes [2000] NZCA 544, as derived from the judgment of Richardson, J in Fisheries Inspector v. Turner [1978] 2 NZLR 233. The three step approach is such that the Court must firstly consider the gravity of the offending; secondly, the consequences of a conviction; and finally, whether these consequences are out of all proportion to the gravity of the offending.

Applying the three step approach:

(i) The gravity of your offending:

15. Your counsel has referred the Court to Police v Fepuleai [2015] WSSC 105 in which His Honour Vaai J granted a discharge without conviction. Your counsel submits that the gravity of the offending in that matter is greater than in this matter. In Police v Fepuleai (op. cit), the defendant went to the victim’s home and holding a pipe, assaulted the victim by striking her on the head. The victim suffered a laceration to the right parietal area approximately two centimeters wide and one centimeter deep requiring two stitches to suture the injury. There was also provocation leading to the assault.
16. The key difference is that your assault against Siniva was within a domestic relationship. By virtue of section 17(1) of the Family Safety Act 2013 (“the FSA”), Parliament has expressly legislated that this is an aggravating fact against you when it comes to sentencing. That your offending is serious is also reflected in the judgment of His Honour Sapolu CJ in Police v Toomata [2014] WSSC 88 (10 January 2014) involving a sentence for assault occasioning actual bodily harm with intent. His Honour Sapolu CJ stated:
    • “The Court is also conscious of the prevalence of domestic violence in our community in the form of sexual abuse of children, physical abuse generally, and psychological abuse. This is evident from the initiative taken by this Court to establish a Family Court as a division of the District Court and a Family Violence Court within the criminal jurisdiction of the District Court. Family violence or domestic violence as it is often called frequently involves violence by a man against a woman or child. Ordinarily, the penalty is imprisonment. However, there may be exceptional cases.”
17. Parliament as well as the Courts have spoken clearly that offending in a domestic relationship is serious and ordinarily involves imprisonment except in exceptional circumstances. In your case, not only did you assault Siniva, you then also assaulted her sister, Mafoe. I accept that your offending did not involve a weapon as in Police v Fepuleai (op. cit) nor did Sini require stitches, but it did involve two victims, one of whom you were in a domestic relationship with and her injuries were not trifling or minor. Your assault against Siniva in that context bearing in mind section 17(1) of the FSA and as the Court stated in Police v Toomata is not a minor offence.

(i) The consequences of a conviction on you

18. You have filed an affidavit in support of a discharge without conviction. You said that a conviction would be a disadvantage and hardship to you in any future lucrative employment if you were to be compared with other competing candidates. You also said that you travel to Australia and New Zealand to visit family often and for holidays. A conviction for actual bodily harm you have said is “highly likely to result in denial of any future entry visa”.
19. In Oosterman v Police [2007] DCR 131, Harrison J in the High Court of New Zealand said this:
    • “Whether the conviction will actually impede his employment or travel prospects is speculative. What is most relevant is that Judge McElrea plainly regarded his conduct as sufficiently serious to justify entering convictions, for the reasons which he outlined, and the prospect of future difficulties with employment or travel, which is the consequence of conviction for all first offenders, falls well short of establishing that the scales should be tipped in favour of a discharge.” (emphasis added)
20. Similarly in Rodney John Wayne Brunton v New Zealand Police [2012] NZHC 1197, Clifford J stated in terms of a discharge without conviction:
    • “[16] ...Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country, such speculative consequences will not form the basis for a discharge without conviction...
    • [17] Furthermore, I am simply not persuaded, and nor did Mr Edgar pursue the point, suct such a conviction might seriously prejudice any application Mr Brunton might make in the future for registration as atered accountant.”
21. [2016] WSDC 32 (15 July 2016). You have submitted various references including that from your current employer, Quality Home Furnishings. There is no evidence that a conviction would affect your employment, only that it places you at a disadvantage to any future employment prospects as against an applicant who has no convictions. That is speculative and there is no real evidence to support a conclusion that your employment will be affected.
22. In terms of travel, there is also no real evidence to support the contention that the conviction would impede your travel to Australia and New Zealand.

(i) Whether the consequences of a conviction will be out of proportion to the gravity of your offending.

23. Potential problems arising from a conviction for travel to a foreign country are a universal consequence of convictions. There is however no real evidence that has been produced to show that a conviction will impede your travel to these countries. Furthermore, there is no real evidence to show that the entering of a conviction will affect your employment. To the contrary, your current employer who is aware of these proceedings maintains his high regard for you and there is no real evidence that a conviction will affect that employment.
24. Whilst your offending certainly is not in the most serious category, it is nevertheless quite serious bearing in mind section 17(1) of the FSA and what the Supreme Court has clearly enunciated in Police v Toomata (op. cit). The seriousness of your offending against the two victims outweighs in my view the consequences of a conviction. Accordingly, a discharge without conviction is declined.

Discussion:

25. Prosecution has sought a custodial term with a start point of 2 years for the assault on Siniva and 6 months supervision and 50 hours community work in respect of the assault on Mafoe Williams. As His Honour Sapolu CJ said in Police v Toomata in respect of offending in the family violence jurisdiction, “[o]rdinarily, the penalty is imprisonment. However, there may be exceptional cases.”
26. In sentencing you in the Family Violence jurisdiction, I am guided by section 17 of the FSA. A key component of the Family Violence jurisdiction of the District Court is the rehabilitation of offenders so that they do not re-offend. In your case, you declined attending a program to address your rehabilitation and therefore do not get the benefit of a program in mitigation. Defendant’s in this jurisdiction are strongly encouraged to attend programs made available through the Court system. Having considered your matter carefully however and the genuine remorse that you have shown, a non-custodial sentence will be imposed. I will however seek to address the cause of your offending.

Penalty:

27. Paratiso, you are convicted and sentenced as follows:
    • (i) Information D124/16 – assault Siniva Williams – 6 months supervision with special condition that you carry out a 8 weeks anger management program with the Samoa Victim Support Group and 40 hours community work; and
    • (ii) Information D125/16 – assault Mafoe Williams – come up for sentence in 6 months if ordered by the Court.

JUDGE LEIATAUALESA D M CLARKE