Police v Lafaele [2015] WSSC 114 (14 March 2015)

THE SUPREME COURT OF SAMOA
Police v Lafaele [2015] WSSC 114

Case name:	Police v Lafaele
Citation:	[2015] WSSC 114
Decision date:	14 April 2015
Parties:	Police (prosecution) and Nikolao Lafaele, male of Lotoso’a Saleimoa (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	One year and nine months’ imprisonment. That is to be followed by one year’s probation or supervision and on the two further conditions: that you attend another Anger Management Programme; and that you not consume alcohol throughout your probationary period
Representation:	F Laga’aia for the Prosecution T K Enari for the Defendant
Catchwords:	Domestic violence – hot water poured onto victim – breached protection order
Words and phrases:	Causing bodily harm with intent to – maximum penalty seven years – starting point three years’ imprisonment
Legislation cited:	Family Safety Act 2013 s. 19
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

NIKOLAO LAFAELE
male of Lotoso’a Saleimoa
Defendant

Counsel:
F Laga’aia for the Prosecution
T K Enari for the Defendant

Sentence: 14 April 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Mr Lafaele, you appear for sentence in respect of one charge of causing bodily harm with intent to cause bodily harm. The charge carries a maximum penalty of 7 years; the penalty having recently being increased from a 5 year maximum when the Crimes Act was passed.
2. I will set out the facts of the offending, the facts on which you are sentenced and I have taken these facts from the unchallenged evidence of the victim (your wife) at the conclusion of which you pleaded guilty.
3. At the time of this incident, the two of you were living apart; you have four children together and the victim had brought at least two of your children to visit you on what was Father’s Day. At some point that day you got angry with the victim when you saw a tattoo on her back. Her evidence was that it was the name of one of your sons that she had had tattooed but you appeared to have misunderstood the tattoo, and at one point tried to scrub it off her when she was in the shower. An argument developed, during which you pushed her to the ground and she then got herself up and went into the house. She spoke with your mother; said she was going to leave; your mother agreed that that was a good idea but that perhaps she should eat first and the victim (your wife) sat down at the table in the kitchen.
4. You entered the room and plugged in the kettle and let the water boil before pouring the boiling water into another jug. You brought that jug of boiling water to the table and sat down with it. It seems, certainly the view of the victim was, that your mother was not aware that you had the boiling water with you and when the two of you started to argue again, your mother told the victim to go to the front of the house to wait for the car that would take her home. She got up from the table and went to leave, and as she did so, you came up to her and you poured the boiling water that was in the jug over her, it hitting her face and down one side of her body.
5. She suffered burns to her face and side of her body. There was some local treatment given but she was taken immediately to the hospital. The burns she describes as a burn to her face, the left side of her shoulder and breast, and also down to the left side of her abdomen. She, fortunately, was not scarred in terms of her face but does have some minor, permanent burn scars on the left side of her abdomen and breast.
6. Those are the facts and, as I said, once she had given her evidence in chief at the trial, you then changed your plea to one of guilty.
7. I reject your explanation to the Probation Officer that you were holding a hot teapot because you were preparing tea and that the victim pushed past you and that you accidently burnt her. That you should describe your offending in that term suggests strongly to me that you are trying to minimize your behaviour and that you still do not fully take responsibility for what happened.
8. On your behalf your Counsel appropriately, in my view, accepts the facts and, in his own words, describes them as rather grim and he does not challenge the Prosecution’s assessment of the starting point and the authorities to which they have referred me.
9. I have been referred to other Supreme Court decisions where imprisonment has been imposed for this sort of violent offending, in particular a similar case where hot oil was poured onto the victim, causing significant injury. In that particular case, the Court imposed an end point sentence of 12 months imprisonment. The starting point, as best I can glean, is likely to have been close to 3 years. Other cases where defendants have avoided prison, being cases where they did not use any weapon or any other item like boiling water or oil, and where the injury sustained by the victim are much less serious.
10. In this particular case, I fix the starting point a lot higher than the Prosecution, and I do that having identified the following aggravating factors. I regard this as unprovoked offending causing relatively serious injuries where the assault was directed at the head of the victim. The Courts have long recognised assaults to a victim’s head as an aggravating factor given the potential for significant or even permanent damage to that rather delicate and sensitive part of the body.
11. Significantly aggravating matters is the fact that the offending took place in the context of a domestic relationship and having regard to section 19 of the Family Safety Act, I note in particular that the offending occurred in the presence of your 10 year old son. In the Victim Impact Statement, it is noted that he is unable to forget what happened and it has caused him to not have very positive feelings towards you. As a direct consequence of this or as part of the consequences of this, the victim remained living away from you; although I now acknowledge that you are back together.
12. But in terms of the impact on her, the Victim Impact Statement is very telling. She records a fear that this might happen again and she notes that she is now very careful about what she does and has already thought about ways to protect herself in the future. She has addressed the Court and has advised me that the family has now reconciled and I accept that. She believes you have learnt a lot from what has happened and that the two of you want to put this behind you, and she reminds me or advises the Court that the children missed you while you were not living as a family together.
13. I accept that you have apologised to her and that she has accepted your apology. I note that you have not specifically sought counselling in respect of this behaviour but you did complete the Samoa Victim Support Men’s Advocacy Programme during the latter part of last year – so you have received some counselling. As to whether you may pose a risk to the victim in the future, which the Family Safety Act requires me to consider, the victim advises the Court in her Victim Impact Statement that this is the first time that you have touched her but I am unable to place any weight on that for the following reasons (and yet another aggravating factor).
14. The victim obtained a Protection Order, a final Protection Order from the Family Court, on 20 May last year. In other words, because of your past conduct, the Family Court recognised the need to protect the victim from your behaviours. The following month, on 27 June, you breached that Protection Order by assaulting her, in particular, scratching her on her hands. It was as a consequence of those proceedings that you were directed to attend the Men’s Advocacy Programme, and in December last year, you were convicted and ordered to come up for sentence if called upon within 12 months by the Family Court Judge.
15. You are not before the Court for re-sentence on that matter; the relevance of this is that your offending, on this occasion, was committed while a Protection Order was in place and I regard that as a significant aggravating factor.
16. In fixing the starting point, I have regard to the facts and those specific aggravating factors and also to the maximum penalty, which is one of 7 years.
17. In terms of the offending, I regard it as moderately seriously offending of its type and your culpability as high. This was premeditated, intentional harm to your wife, committed by somebody already subject to a Protection Order.
18. I fix the starting point at 3 years imprisonment. The purpose for sentencing for this sort of offending, must be to hold you accountable and to deter you, and indeed others, from this sort of offending.
19. I turn now to the personal matters of aggravation and mitigation that might affect the end point sentence. There are no personal aggravating factors as your prior offending and the Protection Order have already been factored in to the assessment of the starting point.
20. In terms of matters of mitigation I have carefully read the Probation Report and heard your Counsel and from your wife. You have been in full time work for many years; you currently, I am told, have a good job and you support your wife and children through your employment. You are described by your Minister as a reliable member of the church and a person he would explain as someone of good calibre. I do accept that there has been significant reconciliation between you and your wife; that you are now living together as a family; she has noticed a change in you and that may well be as a result of the Programme that you completed with Samoa Victim Support.
21. I am concerned that you do not appear to acknowledge what you did on this occasion – in other words, that you are clearly minimizing your behaviours but you are the father of a young family, who has made some positive changes and who wants to work now with his wife to strengthen and support your family. Not only will your family feel your loss financially in terms of a term of imprisonment but there is a risk, in my view, that a lengthy term of imprisonment will weaken the bonds that have been rebuilt since the offending. Because of that, and the adverse impact of a term of imprisonment on your children who are, really, the innocent victims of this offending, I regard that as an appropriate matter to reduce the sentence, and in a rather generous way, Mr Lafaele. The starting point will be reduced by one-third – in other words, the sentence reduced down to one of 2 years imprisonment.
22. The only other matter where some credit can be attributed is in respect of your plea of guilty. I have regard to your apology to your wife and to possibly some remorse that you may feel but that has already been factored into the starting point. Your plea of guilty came after your wife had given her evidence to the Court and only a very small reduction is therefore appropriate. I fix that at approximately 10% which I translate as a further reduction of 3 months.
23. In the circumstances in respect of this charge, you are convicted and sentenced now to a term of one year and nine months’ imprisonment. That is to be followed by one year’s probation or supervision; that will be on the standard conditions and on the two further conditions: firstly, that you attend another Anger Management Programme; and secondly, that you not consume alcohol throughout your probationary period as there is some suggestion in the evidence that you had been drinking on the day of your offending.

Thank you, Mr Lafaele; you may stand down.

_____________________
JUSTICE E M AITKEN