Police v Ataga [2016] WSSC 172 (8 September 2016)

THE SUPREME COURT OF SAMOA
Police v Ataga [2016] WSSC 172

Case name:	Police v Ataga
Citation:	[2016] WSSC 172
Decision date:	8 September 2016
Parties:	POLICE (Prosecution) v LOAMA ATAGA male of Safaatoa Lefaga (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE TAFAOIMALO TUALA WARREN
On appeal from:
Order:	For the charge of causing serious bodily harm with intent, the accused is convicted and sentenced to 10 months supervision with the special conditions that he is to attend an anger management program as directed by Probation and he is also to undertake 60 hours of community service within his village as directed by the Alii and Faipule (Village Council) of Safaatoa.
Representation:	F. Ioane for Prosecution Accused in Person
Catchwords:	causing actual bodily harm
Words and phrases:
Legislation cited:	Crimes Act 2013, section.119 (1) Community Justice Act 2008 section 13
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LOAMA ATAGA male of Safaatoa Lefaga
Accused

Counsel:
F. Ioane for Prosecution
Accused in Person

Sentence: 8 September 2016

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of causing actual bodily harm pursuant to s.119 (1) Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. This offence occurred before the criminal jurisdiction of the District Court was increased to 7 years imprisonment.
2. He was granted leave on 23 August 2016 to change his not guilty plea to a guilty plea.

The offending

3. The Prosecution summary of facts admitted by the accused says that 24 December 2015 at about 11.30am, the accused and victim got into an argument. The accused then punched the victim with a cup. The victim fell down and the accused kicked and punched her and continued to do this until his sister intervened to stop him.

The accused

4. As shown in the pre-sentence report, the accused is 33 years old, lives at Safaatoa and has been in a de facto relationship with the victim since 2014. They have one child together who is only one year old.
5. He cultivates the family plantation for his income and has a gardening business from which he makes close to $1000.00 per week.
6. His education was up to Year 9 and he has travelled the world with Bruno’s Circus for two years.
7. His wife says that he is a dedicated father and loving husband. They have reconciled and she does not wish to proceed with this matter.
8. There is a letter from his Bishop saying that he is a good member of the church and village.
9. He has no previous convictions.

The victim

10. There is no victim impact report given to the Court. The victim is 23 years old and is the de facto partner of the accused.
11. As a result of the offending, the victim suffered bruising to her eye.
12. The victim confirms that she is still together with the accused and wants to stay with him and their child.

Aggravating features of the offending

13. It is aggravating that the offence took place within the context of a domestic relationship. The accused and victim are in a de facto relationship and this relationship falls within the definition of a ‘domestic relationship’ contained in section 2 of the Family Safety Act 2013. Section 17 of same Act states that the Court shall consider this fact as an aggravating factor when determining sentence.
14. It is also aggravating the accused continued the attack on the victim until he was stopped by his sister.

Mitigating Factors

15. The apology by the accused shows remorse on the part of the accused. He also told Probation and the Court that he is remorseful for what he did.
16. His favourable testimonial from his Bishop will be taken into account.
17. His belated guilty plea to the charge is also a mitigating factor.

Discussion

18. In cases where there is domestic violence, I am guided by the s.17 Family Safety Act 2013 in sentencing. This is a case of domestic violence whereby the offence took place within the context of a domestic relationship. Therefore the Court must have regard to, inter alia, the conduct of the offender towards the victim since the offence and any matter which indicates whether the offender;
    1. accepts responsibility for the offence and its consequences;
    2. Has taken steps to make amends to a victim, including action to address the negative impacts of the offence on the victim; or
    3. May pose any further threat to a victim.
19. The Court must also have regard to evidence revealing the offender’s;
    4. Attitude to the offence;
    5. Intention to address the offending behavior;
    6. Likelihood of continuing to pose a threat to the victim; and
    7. Whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.
20. His apology to the victim indicates that he accepts responsibility for his offence and his remorse is indicative of his attitude towards the offence.
21. Prosecution has recommended a monetary fine. Probation recommends a community based sentence.
22. Cases of domestic violence are becoming all too prevalent. Stringent measures of deterrence are required. The Court, in its sentencing, can send a strong message to the community and the offender that domestic violence in all its shapes and forms is unacceptable. Deterrence need not necessarily be custodial. Deterrence can take the form of a community based sentence with strict conditions. The community in which this accused and the victim live must play a role in the prevention of this type of offending as it has devastating effects on families
23. Having taken into account the aggravating and mitigating features, I find that a non-custodial sentence is appropriate in this case. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Section 16 of the same Act states that the Court may impose such special condition or conditions related to the rehabilitation or reintegration of an offender as the Court thinks necessary.
24. Involving the Safaatoa Village Council in this matter is vital for the purposes of monitoring and reducing reoffending. As a condition of sentence, the Village Council will play a part and the Court respectfully asks that they assist the Court in reducing family violence.
25. A stern warning is given to the accused that if he appears again on a similar charge, a harsher penalty will be imposed by the Court. He has a young child. His actions influence that child.

Sentence

26. For the charge of causing serious bodily harm with intent, the accused is convicted and sentenced to 10 months supervision with the special conditions that he is to attend an anger management program as directed by Probation and he is also to undertake 60 hours of community service within his village as directed by the Alii and Faipule (Village Council) of Safaatoa.
    

JUSTICE TAFAOIMALO TUALA WARREN