Police v Crichton [2019] WSSC 33 (10 July 2019)

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Case name:	Police v Crichton

Citation:	[2019] WSSC 33

Decision date:	10 July 2019

Parties:	POLICE v DAVID CRICHTON male of Faatoia.

Sentencing date(s):	10 July 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- On the charge of assault grievous bodily harm, you are convicted and sentenced to 4 years and 8 months imprisonment less time remanded in custody. On the charge of being armed with a dangerous weapon, convicted and sentenced to 3 months imprisonment and threatening words, convicted and sentenced to 1 month imprisonment all to be served concurrently.
Representation:	F Ioane for Prosecution L T H Schuster for the Accused

Catchwords:	aggravating features of the offending assault with intent – armed with a dangerous weapon – mitigating factors personal to the offender ––– threatening words – serious threats of harm – starting point for sentence – sentence

Words and phrases:	the use of the kitchen knife to stab the victim; the number of stab wounds to the victim; seriousness of the injuries and the location of the injuries including to her head and neck; on her stomach and stabbed whilst on the ground; domestic relationship and in the presence of a child or children
Legislation cited:	Family Safety Act 2013. section 17(2)(e)

Cases cited:	Police v Shortland [1989] NZHC 65; (1989) 4 CRNZ 155) R v Taueki [2005] NZCA 174 Telea v National Prosecutions Office [2017] WSCA 4.

Summary of decision:

[2] According to the Summary of Facts accepted by you, you had separated from the victim who is your wife for approximately two years. Your wife had been living with her mother together with four (4) of your children while you had lived with your mother at Fa’atoia with one of your other children.

[3] On Sunday 4th February last year, you had called your wife to bring the children to Fa’atoia. That evening, she then came to Fa’atoia with the children. They remained at Faatoia for a time and when it was time to depart as the children had school the next day, you became angry, took the car keys off her and told her that they are to sleep at Fa’atoia.

[4] Your wife and the children complied and stayed at Fa’atoia for the night with your wife and children spending the night in the sitting room and you inside one of the bed rooms.

[5] That evening, you asked her to go buy cash power and she was given the car keys to do so. She went with the children, bought the cash power and returned to drop off the cash power as well as your daughter that lives with you. When she called out to your daughter that she is about to leave, you approached your wife and told her to turn off the car and to come inside. She reluctantly complied and went inside with the children and spent the night at Faatoia.

[6] Sometime in the early hours of the 5th February 2018, your wife woke up and started to pack her things as they had to leave Faatoia to get the children ready for school. She walked to the car, got inside and waited for the rest of the children to come to the car. As she was waiting, you came to the car, grabbed your wife by her hair and pulled her out of the car, took the keys and pulled her inside the house. You threatened your wife saying “e ke makamaka i lau mea o le a fai ia oe.” You directed your wife and the children to get in the car and you said to your wife and your children ‘O kakou lea la o e feoki.’

[7] Your wife, children and you went in the car and you said ‘o le mea lea kou ke magagao ai, o le susugu o oukou?’ You then reversed the car and told one of your daughters to fetch the two petrol bottles from inside the garage. As your daughter took too long, you got out of the car. Your wife then managed to get out of the car and ran away from you. You ran after her, caught her and then took a knife out of your pocket and tried to stab the her. She tried to resist, a scuffle occurred and the knife fell down. As she reached for the knife, she was pushed over by you and she fell to the ground. As she lay on her stomach, you grabbed the knife, walked to her and stabbed her seven times.

[8] You left your wife motionless on the ground and she was then attended to by your 7 year old son.

[9] According to the medical report prepared by Dr Rosanna Amosa, your wife was admitted to the hospital Emergency Department on that morning of 5th February 2018. In her medical report, your wife’s wounds were described as:

“7 open wounds noted from the scalp occipital region to the right buttock. 1 deep laceration to the scalp, 1 deep laceration to the nape of the neck, 3 deep lacerations on the right shoulder; all estimated to be 4 cm in length, 1 deep laceration on the right under arm on the auxillary tail of right breast and one deep laceration on the Right Buttock.”

[10] Other injuries were noted on her right hand. She remained in hospital for 5 days.

[11] You are a 47 year old male of Fa’atoia and married with 5 children. You told the Probation Service you had difficulty learning so left school at the end of year 7. You lived in New Zealand for a number of years and while there, secured work as a plumber.

[12] According to the Sa’o of your family, you are a quiet person that doesn’t say much, humble and loves your wife and children. The Bishop of your Church describes you as an active member of the church always finding ways to help others. You are also described as dedicated and committed to do all you can to be with your family because of your love for them. I have also had regard to the other references provided.

[13] You accept your Prior Conviction Record. These convictions are of a different nature for offences of dishonesty, escape and wilful damage.

[14] The victim is your wife. She is 44 years of age. In her VIR, she says that she has accepted fully your apology and that the family has reconciled. Your wife says that you are remorseful and you understand that what you did was wrong. She is troubled by the family no longer being together because you are not there. The children ask for you, miss you and weep for because of your absence, particularly in the evening when you are not present.

[19] Your counsel submits that you are eligible for a deduction for prior good character. You have prior convictions and I do not extend a discount for prior good character.

[20] David, this is a very serious case of domestic violence. Like many cases of domestic violence between husband and wife and intimate partners, you were exercising your control and physical power over your wife. This is blatantly clear from your behaviour that night, your intimidation and bullying of your wife and treatment of her prior to you then stabbing her. In doing so, you grabbed your wife by her hair and dragged her out of the car, a demeaning and disgraceful act in itself perpetrated against your wife.

[21] Also aggravating is that your offending including your very serious threats of harm to your family were carried out in the presence of your children. You threatened your wife saying ‘e ke makamaka i lau mea o le a fai ia oe” and when your wife and children went into the car, you said “o kakou lea la o e feoki’ and when in the car, you said “o le mea lea kou ke magagao ai, o le susugu o oukou.” To exacerbate the impact of your threats, you then told your daughter to go get the petrol can.

[22] The Prosecution has only filed a Victim Impact Report from your wife but your children are also victims. For the children, their presence that night, their observation of your conduct, your beating of their mother and your threats to set them alight could only have been terrifying to see and to be a part of. Particularly terrifying is that these serious threats have been perpetrated by their father. You then in what appears to have been a frenzy of anger when your wife tried to escape, chased her down and then you stabbed her multiple times in the back and neck as she was vulnerable and on the ground.

[23] As in New Zealand (see: Police v Shortland [1989] NZHC 65; (1989) 4 CRNZ 155) and no doubt many other communities around the world, domestic violence in Samoa is at such a level of frequency and seriousness that deterrent sentences are generally necessary. The prevalence, seriousness and also the silence remaining around domestic violence in Samoa was also discussed in the National Public Inquiry into Family Violence conducted by the Office of the Ombudsman (“the Inquiry Report”). Parts of the relevant findings of that report are that:

People are becoming so accustomed to violence that slapping, kicking, punching, swearing at or threatening is now instinctive for many and considered not serious or to fall within the definition of violence; and

In terms of Intimate Partner Violence (IPV), it makes up a large amount of family violence in Samoa with 6 out of 10 women being subject to domestic violence at some point in their lives and with the National Public Inquiry stating that “[t]here is not a single demographic where the rate of IPV drops below 33% of all women surveyed, with a national average of 46.4%. The variation in prevalence within the demographics is mostly insignificant.”

[24] I refer to the Inquiry Report insofar as those findings reflect the Courts experience in terms of domestic violence being prevalent in the community.

[25] The will of Parliament through the Family Safety Act 2013 and the community through for example the Inquiry Report calls for effective steps to address domestic violence. In terms of sentencing, Parliament has expressly provided that domestic violence is an aggravating factor.

[26] There continues to be a belief by some men, yourself included, that the beating or assault of a wife or partner is acceptable. Those views have no place in modern Samoa, if indeed it ever had a place in our society. There is simply no excuse for what you did or for this violence. Where serious violence using a weapon is perpetrated against a spouse or an Intimate Partner, the offender should be under no illusion that such offending will likely be punished with a lengthy custodial term of imprisonment. Given the very serious nature and circumstances of your offending including the use of a kitchen knife to stab your wife multiple times including to the head and neck, her vulnerability and the presence of the children, these are significant aggravating factors that are to be reflected in the start point for sentence. It should be understood by those who might think that domestic violence is acceptable that the Courts hold a very different view.

[27] The sentence imposed today will therefore be a deterrent sentence given the prevalence of domestic violence, the very serious nature of your offending and the circumstances in which you committed your appalling attack on your wife. In my respectful view, such a sentence must not only denounce your conduct but also act as a deterrent to you and also others who might consider similar serious offending against their partners. Where there are differences in a marriage or intimate partner relationship, those differences must be resolved peacefully and maturely and not through violent means to impose your will.

[28] In sentencing you, I also accept that since your offending, you are genuinely remorseful for your actions, you have reconciled and there has been reconciliation between your families and in this regard, I take into account the factors set out in section 17(2)(e) of the Family Safety Act 2013 and the steps you have taken.

[29] Prosecution seeks a 5 ½ to 6 year start point for sentence. Your counsel seeks leniency.

[30] I have considered those submissions and also the authorities provided to me including R v Taueki [2005] NZCA 174 and Telea v National Prosecutions Office [2017] WSCA 4. Your offending in my view is at the high end of band 2 as addressed in Taueki. In my view, adopting the totality in sentencing approach and taking into account the serious aggravating circumstances of your offending including that your offending was in the presence of your children, I adopt a start point of 6 ½ years imprisonment as appropriate on the grievous bodily harm charge. I deduct 8 months for your remorse, apology and the reconciliation that has occurred. I will deduct 4 months for your personal circumstances and your wife’s plea. From the balance, I deduct 10 months for your guilty plea entered on the hearing date.

[31] Prosecution has raised as an aggravating feature your breach of bail conditions in that despite your bail conditions prohibiting you from contacting your wife and prosecution witnesses which included your children, you resumed living with your wife and family whist on bail. I have no doubt that because of your breach of those bail conditions, your wife and children then did not attend the hearing of the matter and your prosecution for attempted murder could not go ahead. In my view, your actions in breach of your bail conditions materially compromised the Prosecution’s ability to proceed with the attempted murder charge against you.

[32] On the charge of assault grievous bodily harm, you are convicted and sentenced to 4 years and 8 months imprisonment less time remanded in custody. On the charge of being armed with a dangerous weapon, convicted and sentenced to 3 months imprisonment and threatening words, convicted and sentenced to 1 month imprisonment all to be served concurrently.

Supreme Court of Samoa

Police v Crichton [2019] WSSC 33 (10 July 2019)