Police v Ofoia [2016] WSFVC 1 (5 August 2016)

FAMILY VIOLENCE COURT OF SAMOA
Police v Ofoia [2016] WSFVC 1

Case name:	Police v Ofoia
Citation:	[2016] WSFVC 1
Sentencing:	5 August 2016
Parties:	POLICE v MARCUS OFOIA and JOSEPH OFOIA, both males of Tulaele.
Hearing date(s):	11 July 2016
File number(s):	D14/16, D15/16
Jurisdiction:	Criminal
Place of delivery:	Family Violence Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	(a) Marcus - convicted and ordered to come up for sentence in 8 months if ordered by the Court; and (b) Joseph - convicted and ordered to come up for sentence in 6 months if ordered by the Court.
Representation:	S Leung Wai for Prosecution A.Su’a for the defendant
Catchwords:	Threat to kill – armed with dangerous weapon – aggravating features – mitigating features
Words and phrases:
Legislation cited:	Criminal Act 2013 s.129, Police Offences Ordinance 1961 s.25
Cases cited:	Police v Rimoni, Police v Papalii and Moalele [2011] WSSC 132 Oosterman v Police [2007] DCR 131
Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

MARCUS OFOIA and JOSEPH OFOIA, both males of Tulaele.
Defendants

Counsel:
S Leung Wai for Prosecution
A Su’a for defendants

Decision : 5 August 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Marcus and Joseph Ofoia, you appear for sentencing on the following charges:
   • (a) Marcus, you appear for sentence on one charge of threat to kill. That charge carries a maximum penalty of up to 3 years imprisonment; and
   • (b) Joseph, you appear for sentencing on one charge of being armed with a dangerous weapon in breach of section 25(1) of the Police Offences Ordinance 1961. This offence carries a maximum penalty of up to one year imprisonment.

The Offending

2. Through your counsel, you have confirmed the Summary of Facts. According to the Summary of Facts, on the morning of the 10^th of January this year, your brother Jude was breaking up a box of frozen chicken. You Joseph were chopping the chicken in preparation for your Sunday toonai.
3. As you were chopping the frozen chicken, this caused annoyance to your neighbor and family member Sarona Napoleone who resides in the adjacent home. She felt that that the violent cutting of the chicken was calculated to provoke her and her family, I understand, by the alleged intentional annoyance it caused. As a result, she called out to you whether you Joseph understood that the chopping of the chicken was provocative. This later caused her parents and your parents to become involved. When your respective parents became involved, a dispute then ensued principally between you and your siblings on one side and Sarona and her siblings on the other. As this exchange occurred, you Marcus threatened to kill their family stating “ou ke fasiokia le kou aiga.” In response to your threat to kill, Sarona’s brother (your cousin) took a machete and swung it at you Joseph. You Joseph ran to the back of the house, grabbed stones and then threw those stones at your male cousin with the machete. You have not however been charged with throwing stones and no account for that is taken into account for your sentencing Joseph.

The Accused

4. You Marcus are a 23 year old single male of Tulaele. You work as an Information Technology Officer with the National Prosecutions Office. You Joseph are a 20 year old male also of Tulaele. You are employed at BlueSky Samoa. You are brothers.

The Complainant

5. The victims of your offending are your adjacent family members. Sarona Napoleone is your cousin and has also been sentenced for offending arising out of this incident.

Aggravating features of Offending

6. The aggravating features of your offending are that your offending occurred within a domestic relationship. This by itself is an aggravating feature. Secondly, in terms of you Marcus, your threat to kill in the circumstances significantly raised tensions amongst all your family members, provoking it appears, Sarona Napoleone’s brother. After you made this threat to kill, Sarona’s brother then took the machete and struck at you Joseph.

The mitigating features of your offending

7. I see no mitigating features in respect of your offending Marcus. Joseph, I accept there was provocation giving rise to your offending.

The aggravating factor relating to you as an Offender:

8. You are both first offenders and there are therefore no aggravating features personal to you as offenders.

The mitigating factors relating to you as Offenders:

9. First, I take into account that you entered a guilty plea at the earliest opportunity Marcus. For you Joseph, I take into account that you pleaded guilty, though that was on the hearing date. Second, I take into account your completion Marcus of the SVSG program to which you were directed to attend. I note however that you had failed to complete the program when originally ordered but completed the program on being re-directed to attend the program. Thirdly, I take into account and accept that there has been reconciliation between you and your family members.

Discharge Without Conviction

10. Through counsel, you have both applied for discharges without conviction pursuant to section 104 of the Criminal Procedure Act 1972. The test for a discharge without conviction has been considered often by the Courts of Samoa. In Police v Papalii and Moalele [2011] WSSC 132, the three stage test for discharge without conviction was enunciated as follows:
    • (i) The gravity of the offending
    • (ii) The consequences of a conviction on the defendant
    • (iii) Whether the consequences of a conviction are out of all proportion to the gravity of the offending.
11. Applying the three stage test, I accept that your offending Joseph was at the lower end of the scale of criminal offending. For you Marcus, a threat to kill is never to be taken lightly particularly in circumstances of conflict amongst family members as what occurred on the morning of 10 January 2016. That your offending occurred within a domestic relationship is by itself an aggravating feature of your offending. It ultimately led to the use of a machete by your cousin against you Joseph. By the grace of God, you Joseph were not struck or injured by that attack. It nevertheless significantly raised tensions within the family dispute which seems to have been simmering for some time.
12. Whilst it has been submitted through your counsel that a conviction will have an adverse effect on you both, I do not see the adverse effects of a conviction against you. There is no evidence before the Court about what the consequences of a conviction will be on you. There is no suggestion either of you will you will lose your jobs, though counsel has submitted potential restrictions on future travel by you. As stated in Police v Rimoni, an unreported decision of this Court (11 May 2016):
    • “The effect of a conviction on employment or travel are often raised to ground applications for a discharge without conviction. 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.”
    • Similarly in Rodney John Wayne Brunton v New Zealand Police [2012] NZHC 1197, Clifford J stated in terms of a discharge without conviction for a traffic offence:
      • “[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, that such a conviction might seriously prejudice any application Mr Brunton might make in the future for registration as a chartered accountant.”
13. Submitted on your behalf are references from Father Patolo Matiasi and your parents. There are no references from your employers either about the impact (if any) of a conviction on your employment, the jeopardizing of any future conference or other professional opportunities or travel. Weighing up the gravity of your offending against the consequences of a conviction on you both, I do not consider that the consequences of a conviction outweigh the gravity of your offending. Accordingly, the application for a discharge without conviction is refused.

Discussion

14. The family dispute that occurred on the morning of the 10^th January 2016 between yourselves and your family members is one that brings shame to yourselves and your family. To the public looking in, it speaks poorly of you both, demonstrates the absence of family leadership and of maturity. That such an incident started from the cutting up of chicken for your Sunday toonai resulting in you Marcus threatening to kill your adjacent family members and another family member using of a machete against you Joseph is difficult to understand.

When directed to attend the SVSG Program, you both failed to participate fully in a program established to assist you and carried out by the SVSG at no cost to the government or to you both as defendants. I accept Marcus that you have now completed the program. You Joseph however seem to have failed to complete the program and have therefore failed to take the steps directed by the Court to address your offending behaviour. You however told the Court that you did learn much from those sessions of the program that you attended.

The penalty

15. Taking into account your offending as a whole as well as the aggravating and mitigating features of your offending as well as those personal to you both as offenders:
    • (c) Marcus, you are convicted and ordered to come up for sentence in 8 months if ordered by the Court; and
    • (d) Joseph, you are convicted and ordered to come up for sentence in 6 months if ordered by the Court.
      

JUDGE LEIATAUALESA D.M. CLARKE