Police v Filivae [2016] WSFVC 2 (9 August 2016)

FAMILY VIOLENCE COURT OF SAMOA
Police v Filivae [2016] WSFVC 2

Case name:	Police v Filivae
Citation:	[2016] WSFVC 2
Decision date:	9 August 2016
Parties:	POLICE v TOMA FILIVAE, male of Faleapuna
Hearing date(s):	3 August 2016
File number(s):	D285/16, D287/16.
Jurisdiction:	Criminal
Place of delivery:	Family Violence Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Taking into account your offending as a whole as well as the aggravating and mitigating factors of your offending as well as those personal to you as an offender, on both charges, I adopt a 5 month start point of sentence. For the aggravating features personal to you as an offender, I uplift this by 2 months. I deduct 3 months for your guilty plea, remorse and the request for leniency. Accordingly you are sentenced to 4 months imprisonment, less time served. On your release, you are to be under the supervision of the Probation Service for 8 months during which period you must successfully complete an anger management and alcohol program as directed by the probation service. Your sentences are to be served concurrently.
Representation:	I Atoa for National Prosecutions Office Defendant in person
Catchwords:	Threatening words- armed with a dangerous weapon – aggravating features – mitigating features
Words and phrases:
Legislation cited:	Police Offences Ordinance 1961 s.4 (g) and s.25
Cases cited:
Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

TOMA FILIVAE, male of male of Faleapuna
Defendant

Counsel:
Ms I Atoa for National Prosecutions Office
Defendant in person

Decision: 9 August 2016

SENTENCING DECISION OF DCJ CLARKE

1. Toma, you appear for sentencing on two charges as follows:
   1. One of being armed with a dangerous weapon namely a bush knife in breach of section 25 of the Police Offences Ordinance 1961 carrying a maximum penalty of 12 months imprisonment;
   2. One of threat to kill in breach of section 129 of the Crimes Act 2013 carrying a maximum penalty of up to 3 years imprisonment.
2. You entered a guilty plea to the charges at an early stage.

The Offending

3. According to the Summary of Facts accepted by you, on the 12^th April 2016 at around 9.00pm, the victim was putting your children to sleep. You arrived home and the victim noticed that you were drunk and making a lot of noise. You were told by the victim to be quiet and that you were disturbing the neighbors who were also sleeping. This angered you so you went to your kitchen, grabbed your machete and then threatened to kill your wife and your children with the knife. The victim stood up, ran to the other side of the house. You gave chase so she took the children and took refuge at your brother’s home next door. You followed the victim so you were told by your brother to leave.
4. In your Pre-Sentence Report, you told the Probation Service that you became angry because your wife had not bathed your children. When you questioned her about this, she responded to you in a manner you did not like. You then grabbed the machete, threatened your wife and your children so they ran off.

The Accused

5. You are a 37 year old male of Faleapuna. You are married and employed as a bricklayer. You have three children together with your wife.
6. You confirmed your prior conviction record which includes assault causing injury, armed with a dangerous weapon and threatening words. You were convicted and given a 12 month suspended sentence.

The Victim

7. The victim in this matter is your 27 year old wife. She is currently pregnant and expecting your fourth child this month. As your child is due this month, your wife was pregnant at the time of your offending, which you confirmed during your sentencing hearing.

Aggravating features

8. The aggravating features of your offending are as follows:
   • (a) Your offending occurred within the context of a family relationship. This by itself is an aggravating feature of your offending in accordance with the Family Safety Act 2013;
   • (b) There was an element of premeditation in your offending. You also gave chase and went to your brother’s home;
   • (c) Your threat to kill targeted not only your wife but your children and consisted of threatening to kill them with the knife held by you in your hand;
     
   • (d) Presence of children and the victim and your children took shelter in the adjacent home;
   • (e) Your wife was pregnant at the time of your offending.

The mitigating features of your offending

9. There are no mitigating features in respect of your offending.

The Aggravating Factors as Offender:

10. First, you have prior convictions from 2015 for offences of domestic violence. You told the Court that the victim of your offending last year was your nephew. Second, when you committed your offending on this occasion, you were subject to being called up for sentence within twelve months of your earlier conviction. Thirdly, you had the benefit of the Samoa Victim Support Program anger management program yet you have now re-offended.

The Mitigating features as Offender:

11. First, I take into account that you entered a guilty plea at the earliest opportunity for the charges. Second, I take into account your remorse reflected also in your guilty pleas, your apology to the victim and what you told the Court. Third, I take into account the request for leniency by your wife.

Discussion

12. Toma, as a result of your offending last year, you were ordered to undergo a program for anger management conducted by the Samoa Victim Support Group (“SVSG”) which you successfully completed.
13. Having successfully completed the SVSG Program, you now re-appear before the Court for sentencing for further domestic violence offences in less than a year, this time, in respect of offending against your pregnant wife and your own children. The Family Violence jurisdiction of the District Court was established with the objective of, amongst other matters, addressing your offending behaviour and ensuring that you are no longer violent and your family kept safe. This aim of the Court uses programs such as those conducted by the SVSG to address your behaviour.
14. Regrettably, similar to another matter being sentenced today, you are one of the few who have completed the program and appear for sentencing having committed further acts of domestic violence. For those defendants who have completed the programs directed by the Court to address their offending behaviour, they must be clear that should they re-appear before the Court for further violent offending of a domestic nature, they run the serious risk of a custodial sentence being imposed.
15. Domestic violence is not acceptable in our community, by the Court or by the victims of domestic violence. It is a highly prevalent offence in our community and for that reason, the Family Safety Act 2013 (“the Act”) was enacted. The Act provides that domestic violence is an aggravating feature of the offence. This Court on a daily basis is confronted with many offenders having committed acts of domestic violence. Your role as a father and a husband is to protect your wife and your children from harm. In this case, rather than protecting your wife and children, you were the perpetrator of the crime threatening to kill not only your pregnant wife but also your children. That your pregnant wife and children fled their own home, a place where they are entitled to feel safe, for shelter elsewhere speaks of the great fear they will have felt for their safety because of your threat to kill.
16. Relevant to your sentencing is the wishes of your wife. During your sentencing hearing, your wife asked the Court for leniency as she is pregnant and relies on you for the family income and support. In Police v Toomata [2014] WSSC 88 (10 January 2014), His Honour Chief Justice Sapolu stated:
    • “22. For sentencing purposes, the wishes or forgiving attitude of a victim can be a mitigating feature depending on the circumstances, but then only to a limited degree. In Police v Luamata [2013] WSSC 6, Police v Saveaalii [2009] WSSC 7, Police v Nunuimalo [2007] WSSC 8 and Police v Taueu [2007] WSSC 93, this Court referred to Sentencing in Tasmania(2002) 2nd ed by Professor Warner where the learned author stated at paragraph 3.420:

“A victim’s wishes or forgiving attitude cannot be given priority or be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. In McGhee (1994), a case of attempted murder, where the victims had forgiven the offender and did not want him to be punished, Green CJ said the victims’ attitude and wishes ‘ whilst not determinative are factors which militate against giving much weight to considerations of retribution and denunciation’. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender – emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim.”

17. In Police v Toomata, His Honour the Chief Justice sentenced the defendant to 18 months probation. His Honour however clearly stated to the defendant as follows:
    • “I must also warn the accused that if he appears again before the Court on any domestic violence charge, then he is most likely to go straight to Prison without any further chance being given to him. I want the accused to take this warning very seriously. He will regret it if he does not do so and he appears before the Court again on any domestic violence charge.”
18. Re-offenders in the family violence jurisdiction must be aware of the serious risk of imprisonment should they re-offend in a similar way. In your case and bearing in mind the gravity of your offending, your threat to kill and your status as a re-offender, a custodial sentence is warranted.
19. In sentencing you, I take on board what your wife has requested of the Court and that is of leniency. I accept that a lengthy sentence will aggravate her distress as well as those of your children and unborn child who all rely on you for financial support. I also take into account not only that the sentence should be a deterrent sentence, but one that should also again incorporate an element of rehabilitation to address your behaviour on your release from prison.

The penalty

20. Taking into account your offending as a whole as well as the aggravating and mitigating factors of your offending as well as those personal to you as an offender, on both charges, I adopt a 5 month start point of sentence. For the aggravating features personal to you as an offender, I uplift this by 2 months. I deduct 3 months for your guilty plea, remorse and the request for leniency. Accordingly you are sentenced to 4 months imprisonment, less time served. On your release, you are to be under the supervision of the Probation Service for 8 months during which period you must successfully complete an anger management and alcohol program as directed by the probation service. Your sentences are to be served concurrently.

JUDGE LEIATAUALESÃ D M CLARKE