Police v Fiapopo [2016] WSFVC 4 (19 August 2016)

FAMILY VIOLENCE COURT OF SAMOA
Police v Fiapopo [2016] WSFVC 4

Case name:	Police v Fiapopo
Citation:	[2016] WSFVC 4
Decision date:	19 August 2016
Parties:	POLICE v TEOFILO FIAPOPO, male of Vailele.
Hearing date(s):	10 and 17 August 2017
File number(s):	D403/16. D404/16. D405/16, D406/16, D407/16.
Jurisdiction:	Criminal
Place of delivery:	Family Violence Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Your sentences of community work shall be served cumulatively meaning you must complete 250 hours of community work in total. Police is ordered to (a) investigate the allegation that the unlicensed firearm belongs to a Catholic Priest and (b) destroy the 12 gauge firearm following investigation and prosecution, if any prosecution follows.
Representation:	I Atoa for National Prosecutions Office Defendant in person
Catchwords:	Assault, threat to kill, discharge firearm, possession 12 gauge rifle- armed with a dangerous weapon
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123 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

TEOFILO FIAPOPO, male of Vailele.
Defendant.

Counsel:
Ms Atoa for National Prosecutions Office
Defendant in person

Decision: 19 August 2016

SENTENCING DECISION OF DCJ CLARKE

The Charge

1. Teofilo Fiapopo, you appear for sentence on the following charges:
   • (i) One charge of threat to Kill which carries a maximum penalty of 3 years imprisonment;
   • (ii) One charge of assault which carries a maximum penalty of 1 year imprisonment;
   • (iii) One charge of being armed with a dangerous weapon which carries a maximum penalty of 1 year imprisonment;
   • (iv) One charge of being in possession of an unlicensed firearm which carries a maximum penalty of 2 years imprisonment; and
   • (v) One charge of discharging the firearm which carries a maximum penalty of $200.00.
2. You pleaded guilty to the charges at the first available opportunity.

The Offending

3. The Summary of Facts accepted by you is that at about midnight on the 8^th July 2016, you were at Vailele. You were drinking with the 14 year old male victim together with your nephew. Your nephew left and you continued drinking with the 14 year old victim. While you were talking with the victim, you both then started talking about ‘impregnating girls’. The discussion then offended you and you became angry. You grabbed the victim by the neck and said ‘vaai oe i ke’i ou faga oe ile po legei.” As you did this, the victim was crying as you were strangling him.
4. After this, you walked to your car and took out a 12 gauge rifle (“firearm”). The firearm is unlicensed. Your wife saw you with the firearm and tried to remove it from you. You struggled with her and it caused the firearm to discharge.
5. When questioned by the Court over the firearm and why it had not been handed in during the recent firearm amnesty, you told the Court the firearm belongs to a Church priest. You further explained that it had been given to you by him to protect the church property in your capacity as caretaker.
6. You told the Court that you were very drunk when your offending occurred. You told the Probation Service in your Pre-Sentence report that you had been drinking Russian Vodka and beer with the victim and your nephew.

Background of the defendant

7. You are a 37 year old male of Vailele. You are married with 8 children, all girls. You are employed as the caretaker of the Catholic Church compound at Vailele, where your offending took place. You earn $260.00 per week.

Background of the victim

8. The victim is a fourteen year old male of Vailele. He is single and not in school and is related to you. He confirms in your Pre-Sentence Report that you have reconciled and he has asked for the matter before the Court to be withdrawn.

Aggravating features of the offending

9. There are a number aggravating features of your offending. These are:

(a) Your offending was one of domestic violence;

(b) Your level of intoxication was high;

(c) You consumed excessive amounts of alcohol together with the victim who is 14 years of age and who should not have been consuming any alcohol whatsoever;

(d) The vulnerability of the victim and age disparity;
(e) The nature of your offending as a whole has a high level of culpability. You strangled the victim; threatened to kill the victim with a firearm; took the firearm from your car; and then you subsequently discharged that firearm, though inadvertently;
(f) The discharge of the firearm in the circumstances represented a real danger to the victim, your wife and yourself; and

(g) Your offending occurred at your place of employment, namely the Catholic property at Vailele, and no doubt, in breach of your obligations to the Church as caretaker.

Mitigating features of the offending

10. There are no mitigating features to your offending.
    • Aggravating features in respect of the offender
11. There are no aggravating features personal to you as an offender. You are a first offender.

Mitigating features in respect of the offender

12. You entered a guilty plea at the first available opportunity. I also accept that you are genuinely remorseful for your actions and that you have reconciled with the victim. The victim has asked for the matter before the Court to be withdrawn.

Discussion

13. Teofilo, your offending was very serious. At your place of work entrusted to you by the Catholic Church, you consumed excessive amounts of alcohol with the underage 14 year old victim. Your drunken discussions led to the victim talking about impregnating teenage girls and being the father of 8 daughters, you became angry and then strangled him and threatened to kill him. The victim, being terrified of your assault and threat, cried as 14 year old boys would do in the circumstances. Not satisfied with what you had done, you went to your car and took a 12 gauge firearm, commonly known as a shotgun. You accepted the Summary of Facts that your wife knew it would “not end well”, so she intervened. When she intervened, you struggled and the firearm discharged.
14. Your actions on the night of 8 July 2016 from start to end can only be described as extraordinarily foolish. It was also cowardly because you assaulted a child and then threatened to kill him with a firearm which you subsequently went to get. You should never have been drinking with a child, you should never have assaulted that child and you should never have threatened to kill him with that unregistered firearm which you should never have had in your possession in the first place. When the firearm discharged, you are very fortunate that your wife and the victim were not injured or killed. Your sentence would be very different.
15. Offenders must understand that any offending using firearms, particularly unlicensed firearms, constitute a serious offence and a deterrent sentence must be imposed to reflect society’s rejection of the unlawful use of firearms. It must also encourage firearm owners and those in possession of firearms to license those weapons.
16. Deterrent sentences may be imposed in ways other than imprisonment. Your matter is a borderline one in which I have given serious consideration to your imprisonment due to the high level of culpability in your offending. I have however determined that in the circumstances, I will impose a non-custodial sentence. This primarily is due to your first offender status, your remorse and in particular, your forgiveness by the victim. It is also due to my conclusion that a sentence of supervision would reduce the likelihood of further offending by you.

Sentence

17. Taking into account the totality of your offending, the aggravating and mitigating features of your offending together with those personal to you as an offender, you are convicted as follows:
    • (a) On the charge of threat to kill, you are sentenced to 12 months supervision on the following special conditions:

(i) 120 hours community work;

• (ii) You are to attend an alcohol and anger management program of not less than 10 weeks duration as directed by the Probation Service;
• (iii) You are prohibited from consuming alcohol for a period of 4 months;
• (iv) You are prohibited from possessing or owning a firearm whatsoever.

(b) On the charge of being in possession of an unlicensed firearm, you are sentenced to 80 hours of community work;

(c) On the charge of assault which carries a maximum penalty of 1 year imprisonment, you are sentenced to 50 hours of community work;

(d) On the charges of being armed with a dangerous weapon and discharging the firearm, you are to come up for sentence in 12 months if ordered by the Court.

18. Your sentences of community work shall be served cumulatively meaning you must complete 250 hours of community work in total.
19. Police is ordered to (a) investigate the allegation that the unlicensed firearm belongs to a Catholic Priest and (b) destroy the 12 gauge firearm following investigation and prosecution, if any prosecution follows.
    

JUDGE LEIATAUALESA D M CLARKE