Police v Utulele [2016] WSDC 50 (2 September 2016)

DISTRICT COURT OF SAMOA
Police v Utulele [2016] WSDC 50

Case name:	Police v Utulele
Citation:	[2016] WSDC 50
Sentencing:	2 September 2016
Parties:	POLICE v TULI UTULELE, male of Vaitele uta.
Sentencing Hearing date(s):	31 August 2016
File number(s):	D380/16
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	DISTRICT COURT JUDGE ATOA SAAGA
On appeal from:
Order:	- Convicted and sentenced to 6 months supervision on the condition you carry out 50 hours community work
Representation:	F. Ioane for National Prosecution Office Defendant in person
Catchwords:	Assault
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123
Cases cited:
Summary of decision:

IN THE DISTRICT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TULI UTULELE, male of Vaitele uta
Defendant

Counsel:
F. Ioane for National Prosecution Office
Defendant in person

Sentence : 2 September 2016
.

SENTENCING DECISION OF JUDGE ATOA SAAGA

1. Tuli Utulele you appear for sentencing on 1 charge of assault on Saoai Mili Oloapu, a female of Vaitele Uta and Vaisala Savaii in breach of Section 123 of the Crimes Act 2013 which carries a maximum penalty of 12 months imprisonment.
2. You entered a guilty plea to the charge of assault at the first available opportunity on the 23^rd May 2016.

The Offending

3. The Summary of Facts was read out to you and you accepted that on Saturday 7^th May 2016, the victim had left with your child after an argument and that later on she had gone out with friends. On Sunday 8^th May 2016, you had gone to the victim family where the victim was staying and asked the victim if she could come for a ride with you to discuss matters. The victim agreed and whilst 50 meters away from the victim’s family house from which you picked her up, you slapped her on the right side of her face. You also punched the victim on the right side of lower jaw.

The Summary Facts further stipulates that the victim was very scared that she opened the door of the car and she tried to jump out. She however held onto the car handle and was dragged and as a result sustained multiple abrasions on her left knee and left side of her big toe. You then stopped the vehicle and the victim ran and took refuge in a nearby house. You however called the victim to come out of that house and eventually the victim agreed and you both went to her family home in which you apologized to the victim and her family and promised that this will not happen again. The victim then went to sleep but was woken up when something hit her on the side of her face and she looked up to see you walking away from her.

On the 9^th May 2016, you were taken to the Police Station where you were charged with one count of assault against the victim. When the matter was called, you pleaded at first instance.

The Accused

4. You are a thirty six (36) year old male of Saleaumua who currently lives at Vailele. You are in a de facto relationship with the victim and you have one child. You are currently employed as a taxi driver.
5. You have also confirmed your prior conviction record. Your prior conviction record shows the following:
   • (a) On 24^th April 2013, you were convicted and discharged for Insulting words
   • (b) On 24^th April 2013, you were convicted for willful damage and throwing stones and suspended sentence for twelve (12) months.

The Victim

6. The victim is a twenty nine year old female of Vaisala Savaii who currently lives at Vaitele uta. The victim is the Defendant de facto wife.

Aggravating features of your offending

7. The aggravating features of your offending are as follows:

(a) Your offending occurred within a domestic relationship which includes a relationship in which you live together in a relationship in the nature of a marriage although you are not married to each other.

(c) There was an element of premeditation to your offending in that you deliberately misled the victim into taking a ride with you so that you can inflict harm on her by slapping her on the right side of her face and punching the right side of her lower jaw.

(d) Your actions caused the victim to be very fearful that she jumped out of the vehicle and was dragged by the car. The result was that she sustained multiple abrasions on her left knee and left side of her big toe. Her fear of you saw her taking refuge in a nearby house.
(e) After the victim returned with you to her family home, you apologized to the victim and her family and said that what had happened will not happen again. You however hit the victim again on the side of her face soon after whilst she was sleeping.

Mitigating features of your offending

8. I do not find any mitigating features of your offending

Aggravating Factors as an Offender

9. You have two prior convictions in 2013 of Insulting words and Willful Damage and Throwing Stones in which you were convicted and discharged for the former and convicted with a suspended sentence for twelve (12) months for the latter. You are now standing in the Family Violence Court for an assault charge.

The Mitigating features as an Offender

10. Mitigating features as a Offenders are as follows:
    • (a) You pleaded guilty at the earliest opportunity for the assault charge.
    • (b) The Probationary Report of the Family group Conference dated 27^th June 2016 stipulated that you have already apologized to the victim and that there has been reconciliation between you and the victim.
    • (c) The final report from the Probationary Office shows that you have also completed the 6 weeks program for Anger Management. Your records shows that you had a good attendance of this program and had also willingly shared within the group your intention to change for the better.

Discussion

11. The program you have attended and all efforts of the Court through the Probationary Office have been for your benefit and to ensure that you make positive changes in your life. The program included spiritual guidance, reinforcement of the Samoan customs and culture and ways of managing your anger.
12. You are a father and a husband. You are the head of your family and therefore set the example for the next generation. Your primary responsibility is to provide and to ensure that your family is safe and protected from harm. When you however are responsible for causing harm and fear amongst your family members, t hen you no longer a shield of protection for your family and therefore do not deserve to be part of that family unit and should be punished accordingly for breaching that trust in you to keep your wife and child safe.
13. The Prosecution sought a custodial sentence of 4 months to be imposed on you. The Prosecution relied on the District Court decision of Senior DCJ Judge Vaai on 25^th July 2016 in Police v John Nauer in which the Defendant was given a 4 months imprisonment term for common assault. The Defendant in that matter assaulted two victims including a police officer. It is to be noted that matter was within General Jurisdiction of the District Court and there was no domestic relationship between the Defendant and the victims and also that the imprisonment term was appropriate under those circumstances with 1 month for the assault on the victim and on the police officer 3 months. Defendant also had a long list of previous convictions for Assault causing Bodily Harm.
14. Notwithstanding, the Prosecution also submitted case authorities from the Family Violence Court which were presided over by DCJ Tuala Warren namely Police v Lupe Siueva (14^th March 2016) Police v Nikolao Talivaa,( 7^th March 2016) Police v Faatiuga Sopoaga (14^th March 2016), Police v Neemia Samuelu and Laulauatumua Samuelu (7^th March 2016), Police v Siaosi Folasi (14^th March 2016). In all these matters, the Defendants were charged with assault and were convicted with suspended sentence of up to six months. None of the Defendants however had any prior convictions.
15. Probation Officer sought a suspended sentence on the basis that the Defendant had successfully completed the six weeks program and that the Defendant has shown genuine remorse and has reconciled with his wife and family. The Probationary Officer submitted that the Defendant is fully rehabilitated and that he has fully accepted that his actions were wrong. The Probationary Officer maintains their recommendation for a suspended sentence.
16. Section 5(2) of the Community Justice Act 2008 provides that, “ Where an offender is convicted of an offence punishable by imprisonment, the Court when considering the sentence it should impose, must have regard to the desirability of keeping the offenders in the community so far as that is practicable and consistent with the safety of the community.
17. In Police v Anelusi Faataape, (5^th August 2016) Judge Clarke at pg 4, “ A custodial sentence will simply undermine your rehabilitation, reconciliation and the positive steps you have taken and place you at risk of re embarking on the path of further criminal offending on your release.” The Defendant in this case had prior convictions and was convicted of one count of assault, insulting words and one charge of being armed with a dangerous weapon.
18. The uniqueness of the Family Violence Court is that the Defendants are provided an opportunity to seek help and to take positive steps in redressing the wrong they committed. The onus however is on the Defendant to take those steps towards rehabilitation. After assessing all the evidence and the reports from Probationary Officer, I wish to acknowledge the courage and commitment of the Defendant to seek help and to complete the program. He has also stood before this court and expressed genuine remorse for his actions. The possibility also of being convicted I am sure would have weighed heavily on the Defendant whilst awaiting the decision of the Court. I however commend the Defendant for all actions that he had taken including completion of the program, apologizing to the victim and the family.
    

The Penalty

19. Tuli, taking into accounts the aggravating and mitigating factors of your offending as well as those personal to you as an offender, you are convicted you are convicted and sentenced to 6 months supervision on the condition you carry out 50 hours community work
    

JUDGE ATOA SAAGA