Police v Chan Kwan [2016] WSSC 86 (20 May 2016)

SUPREME COURT OF SAMOA
Police v Chan Kwan [2016] WSSC 86

Case name:	Police v Chan Kwan
Citation:	[2016] WSSC 86
Decision date:	20 May 2016
Parties:	POLICE v CHARLIE CHAN KWAN male of Leone (Defendant)
Hearing date(s):
File number(s):	S3888/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE VAAI
On appeal from:
Order:	The accused is sentenced to 5 years and 6 months imprisonment less any time spent in custody.
Representation:	F Ioane for prosecution
	C Vaai for defendant
Catchwords:	Attempted murder– aggravating features – starting point for sentence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

CHARLIE CHAN KWAN male of Leone
Defendant

Counsel:
F Ioane for prosecution
C Vaai for defendant

Sentence: 20 May 2016

S E N T E N C E

1. The accused pleaded guilty to one count of attempted murder. He was at the time a taxi driver, separated from his married wife and living in a defacto relationship with the complainant, who was also married and separated. Both were living at the complainant’s home at Nu’u village. In the same household were the complainant’s two young children aged 7 and 1 year, as well as the complainant’s female cousin, a solo mother with a 2 year old child.
2. The 3 young children are alleged in the summary of facts to be the victims of the accused’s offending.
3. Since the commencement of the defacto relationship for the past two years, the complainant and the accused had engaged in frequent confrontations. Eventually on the 16^th December 2015 during another argument the accused was given his marching orders, he was told to pack and leave. He did, but he was also upset. On the evening of the same day he followed the complainant to a night club, confronted the complainant, who in turn re-assured the accused that the relationship was over. Attempt by the accused to mediate was denied.
4. Upon leaving the nightclub the complainant being concerned about her safety spent the night at a hotel. In the meantime the accused, being unable to locate the whereabouts of the complainant drove his taxi to the complainant’s house at Nu’u where the complainant’s cousin was watching television while the 3 children were asleep close by. In his state of anger the accused drove through the locked gate, parked the car at the rear of the house, grabbed a container half-filled with petrol, stored at the rear of house, and entered the house.
5. According to the summary of facts, the complainant’s cousin questioned the accused as to his reasons and motive for entering the house but he responded by pushing her away and emptied the container of petrol inside the house including the children’s heads. He ignored the pleas not to hurt the children. When the defendant left the room to fetch a lighter the complainant’s cousin took the two youngest children and ran next door for refuge and safety.
6. The fire, according to the summary of facts, woke up the 7 year old child who tried to put the fire out by getting water from the tap. She gave up and ran away for safety and waited for her mother. Fire Brigade arrived and put out the fire.

The accused

7. The accused is a 30 year old married man with 4 infant children. At the time of the offending the wife and the 4 children were living with the wife’s family at Savaii. He had a very low level of education. According to the probation report, the accused left school after year 5. He is a first offender.
8. He told the probation service that he lit the match stick and started the fire when the children were taken away and out of danger.

Aggravating features

9. Prosecution submitted that the worst and most significant aggravating feature of the offending is the young lives of the 3 victims whom the accused had deliberately intended to punish due to his anger against the complainant.
10. There was also an element of planning or pre-meditation in setting fire to the house occupied by the 3 children. It was not an immediate reaction or retaliation. He drove for over 15 minutes from Apia to Nu’u, with full knowledge of the occupants of the house, and the presence of the container of gasoline. Pleas by the complainant’s cousin were ignored. He left soon after he struck the match. When he started the fire he wanted everything inside the house to perish.

Discussion

11. The court accepts that all the three children were away from danger when the accused started the fire. If petrol was the inflammable liquid poured by the accused inside the house to start the fire, the oldest victim alleged by the police in the summary of facts to be present in the house when the fire started would have been badly burned.
12. When the accused drove from Apia to Nu’u he had sufficient time to reconsider his intended criminal act but he did decide to give his anger full vent. Neither was he deterred when he realized that there were children asleep in the house. In fact he knew or ought I have known that there were children in the house because he did live there.
13. He must accept the consequences of his action. Although no bodily injuries were inflicted, he did create not only panic and fear to those present but he also caused extensive damage to the house.
14. In the circumstances, a starting point of 11 years suggested by the prosecution is considered to be excessive. At the same time the offending is considered to be towards the higher end of the scale. A starting point of 8 years is considered appropriate.
15. The court accepts the accused is truly remorseful; he has apologised to the complainant; he has managed his journey for 30 years and pleaded guilty at the earliest opportunity. For all those mitigating factors, a deduction of 2 ½ years will be made.
16. The accused is sentenced to 5 years and 6 months imprisonment less any time spent in custody.

JUSTICE VAAI