Police v Toomata [2014] WSSC 88 (10 January 2014)

SUPREME COURT OF SAMOA

Police v Toomata [2014] WSSC 2

Case name: Police v Toomata

Citation: [2014] WSSC 2

Decision date: 10 January 2014

Parties:

POLICE (Prosecution) and MEAATAMALII AKA TAMALII MISA TOOMATA (accused) male of Vaitele-uta.

Hearing date(s):

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution

Accused in person

Catchwords:

Words and phrases:

Sentence, causing actual bodily harm, aggravating and mitigating features, physical abuse generally, psychological abuse, domestic violence charge

Legislation cited:
Crimes Act 2013 s.119 (1)

McGhee (1994)

Cases cited:
R v Clotworthy (1998) 15 CRNZ 651
R v F (1998)

R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372
Police v Luamata [2013] WSSC 6,
Police v Nunuimalo [2007] WSSC 8
Police v Saveaalii [2009] WSSC 7,

Police v Taueu [2007] WSSC 93

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NOS: S2207/13, S2346/13, S2206/13

BETWEEN:

P O L I C E

Prosecution

A N D

MEAATAMALII AKA TAMALII MISA TOOMATA male of Vaitele uta

Accused

Counsel

L Sua – Mailo for prosecution

M G Latu for accused

Sentence: 10 January 2014

S E N T E N C E

The charge

1. The accused Meaatamalii Misa Toomata was originally charged with two charges. One of those charges has been withdrawn by the prosecution. That leaves the one charge of causing actual bodily harm with intent to do so, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. To that charge the accused pleaded guilty at the earliest opportunity. He is now appearing for sentence on that charge.

The offending

2. The accused, his wife and children are members of the Apia Harvest Center Church which they have been attending for the last seven years and the accused has become one of the deacons of the Church.
3. On Sunday 22 September 2013 at around 7.00am in the morning, the accused woke up to find that his wife and youngest son were getting ready to go to church. The accused asked his wife as to where she was going so early in the morning. She replied that she was going with her mother to the service of the Anglican Church at Malifa which is her mother’s church. The accused, who was to deliver the sermon for their church that Sunday afternoon, then told his wife not to go to the Anglican Church but to stay home to cook the food for their Sunday to’ona’i. The wife paid no attention to what the accused was saying and continued to get ready to go to the Anglican Church. The accused again told his wife not to go to the Anglican Church.
4. The wife then stopped ironing her dress which she was going to wear to the Anglican Church, walked out of the room, and spoke to the accused’s sister who lives nearby before she went to her mother’s house on the opposite side of the road from her house. Whilst she was at her mother’s house, she heard the accused calling her to come. She then returned to her house where she was told by the accused to wash the dishes and clean the bathroom.
5. The wife, however, walked to the bedroom which she found had been messed up. She then cleaned up the bedroom. She came across her passport which had been torn into pieces. She asked the accused as to why he had ruined her passport and belongings but there was no reply. Instead, the accused chased their children out of the house, close the door of the bedroom, pushed the clothes box against the door, and sat on the box. He then asked his wife to sit down so they could talk but she refused and insisted to let her go to attend to her chores. They then argued over the torn passport before she gave up, sat on the bed and started to cry.
6. At that time, one of the victim’s family knocked on the door of the bedroom and asked for the accused’s wife to come over to massage one of her cousins. The accused told that person to leave and find someone else as his wife will not be coming over.
7. The accused then grabbed one of the sleeves of his wife’s shirt and told her to talk with him. The wife refused, she did not want to talk with the accused. Upon asking his wife the third time to talk with him and there was still no response from her, the accused then grabbed and pulled her shirt causing it to be torn. The wife then tore off her already torn shirt, grabbed a lavalava, and wrapped it around her body to cover herself. The accused then pulled her towards the bed and assaulted her by punching her three times on the face, the first punch hitting her on the right eye. I do not accept what the accused told the probation service that he slapped his wife twice. The photos produced by the prosecution show that the wife’s facial injuries were much more consistent with injuries inflicted with fist punches than with slaps with the palm of a hand.
8. During the assault, the wife called out the name of the accused’s sister. This made the accused to release her and she fell down on the floor. She then sat on the floor and called out her mother for help. At that time, the sister of the accused entered the room. According to the prosecution’s summary of facts, the accused then walked over and kicked his wife in the mouth telling her to shut up. This was denied by the accused. The prosecution did not call evidence to confirm what is stated in the summary of facts. I will therefore give the accused the benefit of the doubt and disregard that part of the summary of facts.
9. The wife’s mother and sister soon arrived and found the victim bleeding from her nose. The wife was then led out of the house, put in a car, and taken straight to the hospital for treatment. The doctor who examined the victim at the hospital found the following injuries on her: (a) a gross generalised swelling of the right side of the face and (b) a small laceration on the right eye. She was given IV antibiotics and kept at the hospital overnight for observation.
10. Sometime after this incident, the accused found out about why his wife had wanted to go to the Anglican Church at Malifa instead of their church. Perhaps, events would have taken a different turn if the accused had been told of that reason before the assault on the victim took place.

The accused

11. The accused is 35 years of age. The victim is his married wife. They have three young children ranging in age from 2 years to 5 years. The accused is the sole breadwinner for his family. He is presently working as a foreman in a construction company earning $300 a week, as shown from the pre-sentence report.
12. The accused finished school at Year 13. He then worked at various jobs until his present employment. He does not smoke or drink. He holds a diploma and bachelor’s degree in biblical studies from the bible college of his church. He is a deacon of his church and is presently serving a probationary period as a junior preacher for his church.
13. The accused has no previous convictions which means he is a first offender. The testimonials from the pastor of the accused’s church and his employer show that the accused is a person of good character. He is honest, reliable and trustworthy. The testimonial from the accused’s employer also shows him to be a multi-skilled worker. He started off as a driver, then he was appointed as a salesperson, and now he is a foreman of his employer’s construction team.
14. The testimonial from the pastor of the accused’s church also states that the accused and his wife are now undergoing counselling sessions and both are now coming back strong and positive not only in their marital relationship but also in their relationship with their children. Such counselling services are provided by the pastor of the accused’s church and his wife.
15. The accused has also apologised to his wife and his mother in law. The apology was accepted . The victim has forgiven him and this matter has been settled within the family. The victim has also written to the prosecution requesting withdrawal of this matter for the reasons stated in her letter. She wants to keep her family together and to restart and rebuild their marriage; she is also worried about her young children being without their father if a custodial sentence is imposed. The victim probably also has in mind the fact that the accused is the only breadwinner for her and her young children.

The victim

16. The victim is 30 years of age. In spite of several requests from the prosecution to the victim for an interview in order to prepare a victim impact report, she has not turned up. There is therefore no other information about the victim apart from what has already been mentioned.

The aggravating and mitigating features

17. There are several aggravating features of the offending in this case. There was not just one punch by the accused but three punches all delivered to the victim’s face. The resulting facial injuries which necessitated the taking of the victim to the hospital for treatment and her staying overnight at the hospital for observation is another aggravating feature of the offending. So was the intimidating behaviour of the accused leading up to the assault and the vulnerability of the victim. Apart from the aggravating features of the offending, there is no aggravating feature personal to the accused as offender.
18. In terms of mitigating features, there is none in relation to the offending except to say that if there was any pre-meditation on the part of the accused it was at a low level. But there are several mitigating features personal to the accused. The apology by the accused to his wife and mother in law which was accepted and the ensuing forgiveness of the accused by his wife so that this matter has been settled within the family is a mitigating feature personal to the accused. The wishes of the victim to withdraw the charges against the accused for the reasons she gives is also another mitigating feature.
19. The actions of the victim may also be seen as provocative to some extent. She suddenly, and without any explanation, wanted to attend a different church from the church she and the accused had been attending for seven years and in which the accused is a deacon. In spite of repeated questions from the accused as to why she was going to a different church, the victim gave no explanation for the unexpected change. She appeared to have paid no attention to the questions from the accused.
20. The accused and the victim are also undergoing counselling sessions from the pastor of their church and his wife. The results of those counselling sessions so far have been positive.
21. The accused is also a first offender and the testimonials from the pastor of his church and his employer show that he had been a person of good character prior to the commission of this offence. The accused had also pleaded guilty at the earliest opportunity.

The victim’s wishes

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.” (emphasis mine)

23. In R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, cited by counsel for the prosecution in her submissions, O’Regan J, in delivering the judgment of the New Zealand Court of Appeal, said at para[33], pp.383-384,:

“ To avoid any doubt, we mention that there are some features which are sometimes said to reduce the seriousness of conduct, but which, in our view, should not be seen in that light. We place the following factors in this category:

(a)Domestic situation: the fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman or child, where vulnerability of the victim is a significant factor.

(b)Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: R v Clotworthy (1998) 15 CRNZ 651 at p659. That is not, however to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest.

(c)Intoxication: The fact that an offender is under the influence of alcohol or drugs at the time of the offending will not be a mitigating factor: s.9(3) of the Sentencing Act”

24. In my view, what is said in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, is not of any significant difference with regard to the accepted position in Samoa in respect of the wishes and forgiveness of a victim when passing sentence on an offender. The wishes and forgiving attitude of a victim will moderate the sentence to a limited degree only when the sentence would further aggravate the distress of the victim. That is, however, not synonymous with condoning violent conduct, particularly in a domestic situation, simply because of the victim’s forgiving attitude.

Discussion

24. Sentencing is not a mechanical process. It requires careful evaluation of all the relevant circumstances and good judgment. The sentencing outcome will depend primarily on the particular circumstances of each case. The Court is also conscious of the prevalence of domestic violence in our community in the form of sexual abuse of children, physical abuse generally, and psychological abuse. This is evident from the initiative taken by this Court to establish a Family Court as a division of the District Court and a Family Violence Court within the criminal jurisdiction of the District Court. Family violence or domestic violence as it is often called frequently involves violence by a man against a woman or child. Ordinarily, the penalty is imprisonment. However, there may be exceptional cases.
25. In this case, however, I have decided not to impose a custodial sentence but to give the accused a second chance to redeem himself. The accused became annoyed when he woke up on Sunday morning and found his wife getting ready to go to a different church from the church they have been attending for a number of years. When the accused repeatedly asked his wife as to why she was going to a different church, no explanation was given. The wife paid no attention to the accused. She would also not talk with the accused in spite of requests from him.. She was then punched in the face by the accused three times. Whilst the behaviour of the victim provides no excuse for the assault on her by the accused, it does explain why the accused acted the way he did.
26. The accused has apologised to his wife and mother in law and his apology was accepted. His wife has also forgiven him and wants her complaint against her husband to be withdrawn. So the matter has been settled within the family. It is evident that the accused is the sole breadwinner for his wife and three young children. If he is to go to prison, that will deprive his wife and children of their only source of income which must be obvious to the wife. In other words, it will further aggravate the distress of the victim.
27. The accused and his wife are also already undergoing counselling provided by the pastor of their church and his wife. A custodial sentence will necessarily terminate that counselling process even though it is already showing positive progress.
28. The accused appears to have good prospects with his church and employment as shown from the testimonials provided by the pastor of his church and his employer. He is also a first offender and had been a person of good character prior to the commission of this offence. He has also pleaded guilty to the charge against him at the earliest opportunity.
29. I have weighed those mitigating features against the aggravating features of the accused’s offending and have decided not to impose a custodial sentence but to give the accused a second chance.

Result

30. In the result, the accused is sentenced to 18 months probation. He is to undergo anger management counselling and other relevant counselling programmes provided by the probation service. Counselling already provided by the pastor of the accused’s church and his wife is to continue.
31. 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.
    

CHIEF JUSTICE