Police v Soma [2019] WSSC 79 (17 July 2019)

IN THE SUPREME COURT OF SAMOA
Police v Soma [2019] WSSC 79

Case name:	Police v Soma
Citation:	[2019] WSSC 79
Decision date:	17 July 2019
Parties:	POLICE (Informant) and MALAETELE SIPAI SOMA, male of Satapuala (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	On the charge of causing injury with intent and the charge of armed with a dangerous weapon, that is, the kitchen knife used to commit the offence the accused is convicted and sentenced to 2 years and 6 months’ imprisonment.
Representation:	A Matalasi for Prosecution F Tufuga for the Defendant
Catchwords:	causing serious bodily injury with intent – armed with a dangerous weapon – domestic violence – early guilty plea – first offender – remorseful – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, section 118 (1); Family Safety Act 2013, section 17(1); Police Offences Ordinance, section 25.
Cases cited:	Police v Lima [2014] WSSC 2014 (20 June 2014); R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MALAETELE SIPAI SOMA, male of Satapuala

Defendant

Counsel: A Matalasi for Prosecution
F Tufuga for the Defendant

Sentence: 17 July 2019

SENTENCING OF TUATAGALOA J

Charges

1. Malaetele Sipai Soma, you appear for sentencing today on 2 charges (as follows) having pleaded guilty on 6 May 2019:
   • (i) Causing serious bodily injury with intent to Pina Soma which carries a maximum imprisonment term of 10 years^[1]; and
   • (ii) Being armed with a dangerous weapon, namely a kitchen knife, which carries a maximum of 12 months’ imprisonment.^[2]

The offending

2. The offending is one of domestic violence between the accused and his wife at home on the evening of 15 April 2019. It arises out of an argument between the accused and his wife at first in the afternoon and then again when the accused returned home later that day intoxicated.
3. The summary of facts provided by the prosecution and accepted by the accused has the wife finding refuge by running to the accused father and standing behind him when the accused walked towards her with a kitchen knife. This did not deter or stop the accused from approaching his wife; the wife lost her footing and fell when she tried to run away.
4. Despite seeing his wife lying on the ground, the accused continued to walk towards her and stabbed her four times. Furthermore, he said he did not stab her at the back of the neck. I do not accept the accused version.

Victim’s views

5. A Victim Impact Report has been received from the wife, Pina Soma, whose views in respect of what happened are contained in that report.
6. The wife’s views in respect of sentencing are contained in her Victim Impact Report (VIR) and also the Pre-Sentence Report (PSR) for the accused. In the PSR the wife or the victim blames herself for what happened. In the VIR despite the injuries she suffered she expressed her sadness for what had happened as it had split her family, while she remains in Savaii her husband and children live here in Upolu. She is worried about the future of her children as the accused is the sole provider of their family (dependent mentality). Regardless of the circumstances, looking at what’s in the best interest of her children and also with the hope to maintain the unity of the family the wife pleads for the accused not to be sent to prison. I applaud the strength and sheer unselfishness of these women who despite the physical abuse they have endured and emotional scars they bear, they still continue to put their children and family before themselves.
7. I am however sad that some of our women still take the blame for the behaviours of their partners or husbands; blaming themselves for what happened and for the split of the family unit if the husband is sent to prison. The victim (wife) in this matter holds herself responsible for putting her children’s father in prison and for being ostracized by her husband’s family and her children. This mindset is a worry in the Court’s point of view, seen as a recurring pattern over time amongst women suffering the same ordeal blaming themselves for the behaviours of their partners or husbands.
8. This is the crucial role the law plays, to protect wives and mothers who tend to lay the blame upon themselves and sadly at times cost these women their lives.
9. All that said however, it is important to stress that her Victim Impact Report mainly focuses on the impact of sentencing on the family and the children.
10. For reasons which I shall return to, I believe that the accused is truly remorseful for his actions. Counsel for the accused submits for a suspended sentence so that the accused be given a chance to rehabilitate himself through anger management and alcohol and drugs programs.

Sentencing principles

11. In terms of the principles I must apply when sentencing the accused, I start my sentence by setting some parameters. I adopt the words of Malosi J in Police v Lima:^[3]
    • “This is a criminal case brought by the State against an individual. That means however impassioned the pleas of the victims are, they do not determine the matter. The Court must always be mindful of the public interest. This is particularly relevant in domestic violence cases where it is not unusual to hear pleas for mercy by victims at sentencing on behalf of children, and to hear about the inevitable impact on children. If the Court were to be persuaded by that on every occasion virtually no one would be sent to prison for committing domestic violence. Some cases call for imprisonment regardless of the impact on loved ones.”
12. The accused must be held accountable for the harm he has caused to the victim who is his wife and the community. His actions must be denounced and be deterred from offending in this way again, and others deterred from going down the same path.
13. I must have regard to the gravity of the offending, the seriousness of the offences and the attempts made by the accused to right the wrongs.
14. Domestic violence is a growing concern in Samoa and has been for quite some time, it is not unique to us. It is a worldwide phenomenon. It comes in many shapes and sizes and just like cancer it does not discriminate.
15. A specialist Family Violence Court has been set up and has been operating in the criminal jurisdiction of the District Court since 9 September 2013 to deal specifically with family violence issues. As of March 2014, there was approximately 150 cases on hand. Since then that figure has risen to 2,359 cases filed as of 2018.^[4] This figure does not include serious offending such as murder, manslaughter, grievous bodily injuries and sexual offending in the jurisdiction of the Supreme Court which would give a complete picture of the extent of reported domestic violence incidents in this country.

Position adopted by Prosecution and Dend Defence

16. The Prosecution seeks a term of imprisonment with the starting point of 5 years’ imprisonment.
17. The Prosecution, adopting the causing injury with intent charges as the lead offences, submits a starting point of 5 years’ imprisonment is appropriate. That view is based on the tariff case for grievous bodily harm charges in New Zealand, R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769. They place it at the bottom end of Band 2.
18. The Prosecution also refers the Court to a number of like cases, some of which resulted in terms of imprisonment and others which did not. The difference of course comes down mostly to the varying circumstances of the offending and of the offenders.
19. In terms of the aggravating factors submitted by the prosecution, I accept that the following are relevant:
    • (i) The use of a kitchen knife in the course of the assaults;
    • (ii) Domestic Violence under section 17 (1) of the Family Safety Act 2013 is an aggravating factor at sentencing;
    • (iii) The vulnerability or position the victim (wife) was in as she fell and was on the ground when the accused stabbed her;
    • (iv) I consider the number of stabs (4x) an aggravating factor; and
    • (v) The serious nature of the injuries sustained by the victim.
20. In the event that you are sent to prison, I agree with the Prosecution that a starting point of 5 years would be appropriate on the causing injury with intent charge.
21. A suspended sentence was sought on behalf of the accused. I can say immediately there is no prospect of that. Counsel for the accused in his written sentencing submissions strongly advocated for a non-custodial sentence to give the accused the opportunity to attend some rehabilitation services to address his alcohol issues which his Counsel says facilitated the accused offending. Counsel for the accused made reference to the lack of data to show whether custodial sentences imposed in relation to domestic offending do actually deter the offenders from re-offending.
22. However, Counsel for the accused alternatively recommended a 3 year starting point should the Court be considering imprisonment. Counsel also submits for the Court to be cautious in applying the sentencing bands as in the case of Taueki saying that it is a New Zealand case with different circumstances.
23. Again, I reiterate that each accused is to be sentenced according to the circumstances of his offending.

Mitigating factors

24. There are personal circumstances favourable to the accused apart from his early guilty plea and first offender status. There are character references from the accused Church Minister and his mother who both vouch for the accused being an honest, hardworking and responsible person.
25. The accused is 45 years old and a father of two. The accused is the third of eight children. The accused parents divorced when he was still in school and he stayed with his mother.
26. I accept that the accused is genuinely remorseful. His family from the PSR and VIR have through an ífoga apologized to the wife’s family which the accused was not able to attend due to the bail conditions imposed by the Court.
27. I also accept that the accused by pleading guilty meant that he has accepted his behaviour and has taken full responsibility for his actions. His taking full responsibility for his behaviour that on his volition reported the matter to the Police.
28. Taking all of those mitigating factors into account I consider a reduction of 2 ½ years which is significant and appropriate off the 5 year starting point.

Discussion

29. The Community Justice Act 2008 provides the Court with a range of sentencing options and means of dealing with offenders other than by imprisonment.
30. Indeed, where an offender is convicted of an offence punishable by imprisonment, the Court when considering the sentence, it should impose must have (not may have, must have) regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
31. Probation in the Pre-Sentence Report refrained from making a recommendation given the severity and prominence of domestic violence within the community.
32. The accused was referred to the Alcohol Drugs Court for the psycho-educational programs judicially monitored by that Court for those who offend whilst under the influence of alcohol or drugs. Whilst you may be eligible, the decision of whether to accept an offender to the ADC rests with the Judge of that Court after having discussions with the ADC Team consisting of the lawyers and the clinical team. You were declined from attending the ADC for the reasons that (i) this was a violent offending; (ii) the injuries sustained were serious; and (iii) it was domestic violence.
33. Anyone who commits violent offending is a risk to society. I am aware that the Prisons and Corrections Authority run rehabilitation programs in the prisons that would address the need for rehabilitation raised by Counsel for the accused. Although I am mindful of the submissions by Counsel of the need for the accused to attend some rehabilitation program to address his alcohol and anger issues I am still of the view that a strong message should still be sent out to deter others from resorting to violence and the use of weapons to commit offences and especially so in the home front.
34. Having regard to the circumstances of this case I am of the view that a custodial sentence is nevertheless appropriate. As I said earlier, I accept the 5 year starting point recommended by the Prosecution. For the mitigating factors I deduct 2 years and 6 months. This leaves an end sentence of 2 years and 6 months.

Sentence

35. On the charge of causing injury with intent and the charge of armed with a dangerous weapon, that is, the kitchen knife used to commit the offence the accused is convicted and sentenced to 2 years and 6 months’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1]Crimes Act 2013, section 118 (1)
^[2]Police Offences Ordinance, section 25
^[3]Policima [2014] WSSC 2014 (20 June 2014)
^[4]Family mily Violence Court data currently being compiled