Police v King [2018] WSFVC 1 (18 April 2018)

FAMILY VIOLENCE COURT OF SAMOA
Police v Leung King [2018] WSFVC 1

Case name:	Police v Leung King
Citation:	[2018] WSFVC 1
Decision date:	18 April 2018
Parties:	POLICE v AH KENI LEUNG KING, male of Vaigaga
Hearing date(s):
File number(s):	D4876/17; D4877/17; D4875/17
Jurisdiction:	Family Violence
Place of delivery:	Family Violence Court of Samoa, Mulinuu
Judge(s):	Judge Talasa Atoa – Saaga
On appeal from:
Order:	I will however order that you do community work so that you will be able to see the challenges faced by the Court and Program Providers in the rehabilitation of delinquent youths. By being involved in community work, you will be able to appreciate the value of a stable family and costs to the community when the unit is destabilized by crime
Representation:	K Stanley for Prosecution
	R Drake for Defendant
Catchwords:	Intentional Damage Threat to kill Armed with a dangerous weapon
Words and phrases:
Legislation cited:	CA 2013 ss. 184(2)(a) & 129 POO 1961 s.25
Cases cited:
Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

AH KENI LEUNG KING, male of Vaigaga
Defendant

Counsels:
K Stanley for Prosecution
R Drake for Defendant

Sentencing: 16 April 2018
Decision: 18 April 2018

SENTENCING DECISION OF JUDGE SAAGA

Charges

1. Ah Ken you appear for sentencing today to three charges of:
   • (a) Intentional Damage pursuant to Section 184(2)(a) of the Crimes Act 2013 which carries a maximum penalty of seven (7) years imprisonment and
   • (b) Threat to Kill pursuant to Section 129 of the Crimes Act 2013. The maximum penalty is three years imprisonment.
   • (c) Armed with a Dangerous Weapon pursuant to Section 25 of the Police Offences Ordinance 1961. The maximum penalty is one(1) year imprisonment;

The Offending

2. On 25^th November 2018 around 7pm at Vaigaga, whilst intoxicated and in the presence of your father, your mother, sister and brother in law, you armed yourself with a machete and intentionally damaged a dining table valued at $220.
3. You also uttered the words, “I will kill all of you tonight, especially you mom and dad.”

Background to the Offending

4. The background to the commission of this offence dates back to the afternoon of the incident. Since you returned to Samoa, you have taken over the responsibility from your father of mowing the lawns of their rental properties and their home. The actual work is carried out by employees employed by the business but they work under your supervision.
5. Unfortunately, one of the employees whilst mowing the lawn, damaged a vase valued at $610 which is placed in the garden. The value of this vase to your mother seems to far exceed its price because of sentiments attached to the vase. You received the brunt of your mother’s anger because of your failure to supervise and monitor the employee’s work. A lot of strong words were spoken and in silence you endured even though you were deeply hurt and felt that you were unfairly treated.
6. The Family Group Conference Report stipulated that you felt that your all your personal sacrifices to assist your parents were not acknowledged or appreciated by your parents. As a result, you went to a bar with a friend where you consumed a bottle of vodka before you returned to Vaigaga and the rest unfolded in the commission of the offence.

The Accused

7. You are a 38 years old male of Vaigaga. You are single and currently employed within your family business.
8. You were born and raised in New Zealand and had recently moved to Samoa to assist your parents with the family business. Their family business includes the Tree Fish Market at Vaigaga and rental properties.
9. You are the youngest of three children. You attended Kelston College and left at sixth form. You moved out of your family home at 23 years old to make a living for yourself.
10. You found employment with the New Zealand Post for a period of 7 years and was promoted as a supervisor at the North Shore Branch Mail Sorting Division. After that, you joined a Road Marking Company where you were employed for 10 years. This Company specializes in putting traffic marks on the road. You were promoted as a supervisor and a representative of the Company to Fiji to assist with putting traffic marks on its road.
11. You obtained qualifications thereafter in welding.
12. You moved to Samoa in 2017 on the request of your parents to assist them with their businesses.

The Victims

13. The victims are your immediate family members. The victims are your father Laau Leung King who is in his late 70’s, your 69 year old mother Viva and your 42 year old sister Ruby. According to the Summary of Facts your brother in law is also a victim but there are no other details provided in the Summary of Facts nor is he mentioned in the Family Group Conference Report as he was not present.
14. Attached to the Family Group Conference Report is a letter dated ^5th December 2018 from your father advising that you have apologized to him. He seeks the leniency of the Court to allow you the opportunity to make amends and to learn from this incident. Your father stipulates in his letter that this is the first time that you have done this.
15. According to the Family Group Conference Report, both your mother and sister were clearly distressed on the night of the incident. Your father also mirrored their concern in his letter dated ^5th December 2018 when he expresses his appreciation to the Police stationed at Vaitele for answering their call for assistance that night.

Aggravating features of the Offence

16. Ah Ken, the aggravating features of your offence is that
    • (a) It affected your immediate family which includes your elderly parents and sister. These are the people that should rely on you for their safety, protection and welfare. Instead, they needed the assistance of the police to protect themselves from you.
    • (b) You were heavily intoxicated and consumed with rage and anger succumbed to the debilitating effects of alcohol. In the presence of your elderly parents, sister and brother in law you hit and damaged a table with a machete whilst uttering threats that you were going to kill your parents that night. It need not matter that there was no third party involved. Families must not be subjected nor exposed to violent acts committed by family members who are unable to control their anger and are under the influence of alcohol. Most disheartening is the fact that you are a son and brother to the victims.

Mitigating Features of the Offence

17. The Mitigating factors in your favour are:
    • (a) You are a first offender.
    • (b) You apologized to the victims at the earliest opportunity.
    • (c) You pleaded guilty at the earliest opportunity also.
    • (d) During the Family Group Conferencing, you again apologized to your mother and sister who were present. You also expressed your willingness to make amends.
    • (e) You were very attentive in Court when I ordered you to attend the Program. You appeared truly remorseful. Your attentiveness did not waver throughout the program also. The halfway Review Report and the Final Report stipulates that you are an active participant and that you had openly expressed your regrets and remorse over what had happened.
    • (f) Your Church Minister from Congregational Christian Church at Vaigaga has provided a supporting letter advising the Court that your family are active members of the Church. They are generous with Church contribution and that none of you have been known to cause any problems in your village.
    • (g) Your employment history shows that you have the same commitment as your parents to succeed through hard work. You were promoted to the rank of supervisor for both jobs depicting leadership skills. As your Counsel has submitted, you are industrious and that seems to be a trait inherent in your family.
    • (h) Your willingness to leave your life in NZ in your late thirties to assist your parents and their business reveals that family ties are important to you.
    • (i) Your Defence Counsel has submitted repeatedly that the Court has to consider that one of the main reasons why this offence was committed was poor communication between the parties. I do agree having been briefed by Defence Counsel on your routine since you returned to Samoa. After work, you stay in your room and there is rarely any communication between you and the rest of the family. Since the incident there has been an improvement in communications between you, your parents and the rest of your family.

Law

18. In deciding the appropriate sentence for you I must consider any of more of the following principles as stipulated under Section 5 of the Sentencing Act 2015.
    • (a) To hold you accountable for the harm you have done to the victim and the community by the offending;
    • (b) To promote in you a sense of responsibility and an acknowledgment of the harm;
    • (c) To denounce the conduct in which you were involved and to deter you from the commission of the same or similar offence in the future.
    • (d) To assist you in your rehabilitation and reintegration back into your family and community.
19. The penalties for the charges for which you have pleaded guilty to pursuant to Crimes Act 2013 are an imprisonment term. Section 9 of the Community Justice Act 2008 provides that the Court may in its discretion impose a sentence of community work or supervision instead or as an alternative penalty.
20. Section 19 of the Community Justice Act 2008 allows the Court to sentence an offender to community work.

Discussions

21. Defence Counsel has requested that the Court consider a non custodial sentence.
22. In determination of the appropriate sentence to give you, I will start from the background that you have provided to the Court. Ostensibly, the matter started over a vase that belonged to your mother valued at $610 which was broken by an employee who was under your supervision in which you received the blame. It seemed trivial and insignificant but it evoked in depth frustration and anger in you.
23. I am not aware of what your mother must have said to you but it hurt you deeply. The tongue is likened to a rudder of a ship. It is so small but it has ability to turn the whole ship no matter its size. The tongue has the power of death and life. Whatever was said was painful enough for you to turn to alcohol. The matter could have been resolved if you were able to talk to you mother, father or sister later on that day but instead you turned to a friend and alcohol and releasing your frustration in the manner in which you did. I do agree with Defence Counsel that there is a lack of communication between you and your family members.
24. Your father has advised the Court that this is the first time that this has happened. There is no record before the Court to indicate that you have been charged and/or convicted before a Court in Samoa or in New Zealand for an alcohol related offence.
25. On all the occasions in which you have stood in this Court, you have expressed remorse through your Counsel and your willingness to attend the program. You are an active participant in all the sessions and have fully completed the program.
26. Your family has also been in court to support you and have also requested the Court for an opportunity for you to make amends. For rehabilitation to take its full effect, you need the support of your family.
27. Whilst the establishment of a good communication channel is beneficial for all families, it is important for all family members also including the parents to recognize that positive reinforcement communication is very important. Words of affirmation and encouragement needs to be spoken more rather than condemnation.
28. I recognize that biological ties do not necessarily create close family relationship and good communication. You left home at 23 and have made a career for yourself on your own. Your parents are also self made entrepreneurs who have achieved success through hard work.
29. You are a part of a family unit and the therapeutic nature of the Family Violence Court encourages the Court to consider ways that will ensure the successful reintegration of a Defendant into his family and the acceptance by the family of the Defendant.
30. Defence Counsel has advised the Court that since the incident the communication in your family has improved tremendously and that you are working together as a family to strengthen and build that relationship. For that reason, I am not going to impose a custodial sentence. It will defeat the purpose for which I ordered you to attend the program and totally disregard your genuine effort to attend the program to assist you.
31. I will however order that you do community work so that you will be able to see the challenges faced by the Court and Program Providers in the rehabilitation of delinquent youths. By being involved in community work, you will be able to appreciate the value of a stable family and costs to the community when the unit is destabilized by crime.
32. I sincerely hope that your involvement in community work will evoke an advocate in you if not already for family safety and elimination of violence.

Penalty

33. I hereby convict you and sentence you to:
    • (a) 60 hours community work under Probation Supervisions.
      • (a) You will be required to serve your 60 hours by being involved in the Samoa Victim Group and rehabilitation program for delinquent youths.

JUDGE SAAGA