Police v Faataape [2016] WSFVC 6 (8 May 2016)

FAMILY VIOLENCE COURT OF SAMOA
Police v Faataape [2016] WSFVC

Case name:	Police v Faataape
Citation:	[2016] WSFVC
Decision date:	5 August 2016
Parties:	POLICE v ANELUSI FAATAAPE, male of Vaitele uta
Hearing date(s):	11 July 2016
File number(s):	D111/16, D112/16, D113/16, D114/16
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted on all charges and sentenced to 6 months supervision on the condition you carry out 50 hours community work. These sentences including the 50 hours of community work shall be served concurrently.
Representation:	I Atoa for National Prosecutions Office Defendant in person
Catchwords:	Assault – insulting Words – throwing Stones – armed with a dangerous weapon – aggravating features – mitigating features
Words and phrases:
Legislation cited:	Crimes Act 2013 s.12 Police Offences Ordinance 1961 s.4 (g), s.26 and s.25
Cases cited:
Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

ANELUSI FAATAAPE, male of Vaitele uta
Defendant

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

Decision: 5 August 2016

SENTENCING DECISION OF DCJ CLARKE

1. Anelusi Fa’ata’ape, you appear for sentencing on three charges as follows:
   • (a) One count of assault on Fa’asau Fa’ataape in breach of section 123 of the Crimes Act 2013 carrying a maximum penalty of 12 months imprisonment;

• (b) One charge of insulting words in breach of section 4(g) of the Police Offences Act 1961, carrying a maximum penalty of 3 months imprisonment or to a fine of $200.00; and
  • (b) One charge of being armed with a dangerous weapon, in breach of section 25 of the Police Offences Act 1961 carrying a maximum penalty of up to 1 year imprisonment.

2. You entered a guilty plea to the charge of assault at the first available opportunity. You pleaded not guilty to the charges of insulting words and being armed with a dangerous weapon, however, on the hearing date, leave was granted on your application to vacate your plea of not guilty and a plea of guilty to these charges was substituted.

The Offending

3. According to the Summary of Facts accepted by you, your offending took place at about 5.00pm on 8 February 2016. You went home and the victim, your 15 year old daughter was at home. She was with your other children. Two of your other children argued yelling obscenities at each other. Hearing the obscenities, you went to grab a branch used to hold up the clothes line. The victim held on to the branch and would not allow you to take it. You blamed the victim for the argument. When she did not reply to you, you then took aim to punch her but then walked away and then uttered insulting words at her. As she walked away to the house, you held a rock and aimed to throw it at her. You then however ran into the house and proceeded to punch her ‘several’ times hitting her head and shoulders. She suffered swelling to one of her arms as a result of your assault. Family members intervened to stop the assault and led you away.

The Accused

4. You are a 41 year old male of Vaitele-Uta. You are married with 3 children and are unemployed. When questioned by the Court about why you are unemployed, you cited health problems associated with gout.
5. You confirmed your prior conviction record. You have a number of prior convictions stemming from offending in 2001 and 2002. These all relate to violent offending with your prior conviction record disclosing the following prior convictions:
   • Actual Bodily Harm on 23 April 2001 in which you were ordered to come up for sentence within 3 years if ordered by the Court;
   • Manslaughter on 12 June 2002 for which you were imprisoned for 15 months;
   • Assault on 11 November 2002 in which you were ordered to come up for sentence within 3 years if ordered by the Court;
   • Assault on 26 November 2002 where you were sentenced to 3 months imprisonment, concurrent to your then term of imprisonment.

The Victim

6. The victim in this matter is your 15 year old daughter. She left school at the end of year 9.

Aggravating features

7. 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 to your offending. You had desisted from your actions, left and then ran back to the house and assaulted your daughter;
   • (c) Your assault involved multiple punches and ceased only with the intervention of other family members; and
   • (d) Your offending not only included acts of violence but of insulting of your daughter.

The mitigating features of your offending

• 8. There are no mitigating features in respect of your offending.

The Aggravating Factors as Offender:

9. You have a number of prior convictions. These all relate to offences of violence, however, I accept these date back to 2003, some 13 years ago.

The Mitigating features as Offender:

10. First, I take into account that you entered a guilty plea at the earliest opportunity for the charge of assault. You entered guilty pleas to the charges of insulting words and being armed with a dangerous weapon on 8 April 2016. Second, I take into account your remorse reflected also in your guilty pleas, your reconciliation with your daughter and that you have accepted responsibility for your actions; and thirdly, I take into account your successful completion of the SVSG 6 week anger management program.

Discussion

11. Anelusi, your actions were that of a bully and a coward and for which you should be ashamed. You carried out an assault against your 15 year old daughter punching her and striking her head and shoulders. I have no doubt that such an assault coupled with your other offending will have caused her significant fear. Your assault only ended when you were led away by family members.
12. You must be very clear that domestic violence in any way, shape or form is not accepted by our community, the victims of domestic violence nor by this Court.
13. In its written submissions to Court, Prosecution has sought a custodial term of imprisonment of 6 months to be imposed and on release from prison, for you to undergo a rehabilitation program. It is submitted that given your prior conviction record, you represent a threat to the safety and peace of your family. In its written submissions in support of a custodial term of imprisonment, all cases referred to by the Prosecution convicted the defendants and ordered defendants to come up for sentence in 6 months if ordered by the Court. No cases submitted for similar offending resulted in a custodial sentence being imposed.
14. Section 5(2) of the Community Justice Act 2008 (“the CJA”) provides that Courts in sentencing defendants must have regard to the “desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.” The CJA emphasises the rehabilitation and reintegration of defendants into the community. Similarly, remorse, rehabilitation and reconciliation is emphasized in section 17(2) of the Family Safety Act 2013 where mitigating factors include the defendant accepting responsibility for offending, making amends with a victim and the offender addressing the causes of the offending through programs or counseling.
15. As the Courts have said on a number of occasions, deterrence in sentencing can be achieved by sentences other then imposing terms of imprisonment. Where a defendant has successfully completed a rehabilitation program, the subsequent imposition of an imprisonment term in my view may undermine the rehabilitation program completed by defendants. The object of this Court in its family violence jurisdiction is not only to punish defendants and to deter other likeminded people from carrying out similar offending but it is to educate and rehabilitate offenders like you so that you do not re-offend. By achieving this goal with you, it brings peace and harmony within your family and hopefully lasting positive change for you and your family. This ultimately benefits our community as a whole and serves as an example to others. This is not to say that the completion of program guarantees a defendant a non-custodial sentence, however, it is a factor to be taken into account and balanced in the sentencing process by the Court.
16. In your case, I have had specific regard to your Final Report from the SVSG. The report states that you accepted that assaulting your daughter was wrong, that you clearly stated your love for your daughter, you made a full apology and that having successfully completed your 6 week anger management program, the SVSG believes that you are now equipped to manage your behaviour in future. In the circumstances, a custodial sentence is not appropriate. 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. You have not been before the Courts for about 13 years and therefore seem to have tried to live a law abiding life in those years. You must however be clear that should you re-appear before this Court for offences of domestic violence, you will not receive the benefit of further programs and will therefore run the risk of an imprisonment term being imposed.

The penalty

17. Taking into account aggravating and mitigating factors of your offending as well as those personal to you as an offender, you are convicted on all charges and sentenced to 6 months supervision on the condition you carry out 50 hours community work. These sentences including the 50 hours of community work shall be served concurrently.
    

JUDGE LEIATAUALESÃ D M CLARKE