FAMILY VIOLENCE COURT OF SAMOA
Police v Neemia [2016] WSFVC 3

Case name: 	Police v Neemia	
		
Citation: 	[2016] WSFVC 3	
		
Sentencing: 	9 August 2016	
		
Parties: 	POLICE v ASOFA’ATASI VAILI NE’EMIA , female of Satapuala and Faleula.	
		
Hearing date(s): 	3 August 2016	
		
File number(s): 	D1065/16, D1066/16.	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Family Violence Court of Samoa, Mulinuu	
		
Judge(s): 	DISTRICT COURT JUDGE CLARKE	
		
On appeal from:		
		
Order:	(a)	Convicted on the charges of assault and being armed with a dangerous weapon and I adopt a start point of 4 months imprisonment. For the aggravating features personal to you as an offender, I uplift this by 2 months. For your guilty plea, I deduct 2 months and for your remorse and request for leniency, 1 month. You are therefore convicted on the charges of assault and being armed with a dangerous weapon and sentenced to 3 months imprisonment, less time served. On your release from prison, you are to be under supervision by the Probation Service for a period of 9 months. During your supervision period, you are to undergo and complete an 8 week anger management program as directed by the Probation Service. These sentences are to be served concurrently; and
(b)	Insulting words, you are convicted and discharged.

Representation: 	I Atoa for National Prosecution Office
Defendant in person	
		
Catchwords: 	Assault -insulting words -armed with a dangerous weapon – aggravating features – mitigating features 	
		
Words and phrases:		
		
Legislation cited:	Criminal Act 2013 s.123, 
Police Offences Ordinance 1961 s.4 (g) and s.25

		
Cases cited:	Police v Toomata [2014] WSSC 88 (10 January 2014),  
Police v Luamata [2013] WSSC 6, 
Police v Saveaalii [2009] WSSC 7, 
Police v Nunuimalo [2007] WSSC 8 
Police v Taueu [2007] WSSC 93,	
		
Summary of decision:		

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ASOFA’ATASI VAILI NE’EMIA, female of Satapuala and Faleula.
Defendant

Counsel:	
I Atoa for National Prosecution Office
Defendant in person

Decision :	9 August 2016
.
SENTENCING DECISION OF JUDGE CLARKE
1	Asofa’atasi, you appear for sentencing on the following charges:
a.	One count of assault on Tasesa Mailata in breach of section 123 of the Crimes Act 2013 carrying a maximum penalty of 12 months imprisonment;
b.	Two charges of insulting words in breach of section 4(g) of the Police Offences Act 1961, carrying a maximum penalty of 3 months imprisonment or to a fine of $200.00; and
c.	Three charges of being armed with a dangerous weapon, in breach of section 25 of the Police Offences Act 1961 carrying a maximum penalty of up to 1 year imprisonment.
2	You entered a guilty plea to the charges at the first available opportunity.
The Offending
3	According to the Summary of Facts accepted by you, the dispute started as a result of matters from the 2nd March 2016 which caused you to be upset. On the next day, your offending then took place. On the 3rd of March, whilst the victim (your husband) was in the kitchen with his cousin, you walked towards the victim with a stone in your hand and threw the stone at the victim. The stone truck the victim’s leg. When the victim told you that there is no need for violence, you then uttered insulting words at your husband about his sisters. Your throwing of the stone and insults at your husband led to neighbours coming out and seeing the commotion. Your husband gave you $30.00 for your fare to leave. You packed your bags and your child and left in a taxi.
4	After a while, you returned in the taxi. You were angry, the victim tried to calm you down but you then fought with the victim. The victim’s cousin holding a machete told you he would take you down to the house. You then had an altercation with the cousin. The victim seeing your baby on the bed picked up the baby and you then grabbed a stick and struck the victim with the stick. As you struck him with the stick, he raised his hand to block the strike and shield the baby from being hit. The victim walked away with the child. As he went to his sister’s house, he saw you coming to him with a machete in your hand. The victim disarmed the machete from your hand so you punched him in the chest. As an altercation ensued, you again reached for the machete and having the machete, you struck at the victim but missed. You fell to the ground and when on the ground, you bit the victim on the leg. 
The Accused
5	You are a 24 year old female of Satapuala. You are married with 1 child and are unemployed. 
6	You confirmed your prior conviction record. You have two prior convictions for assault and a conviction for insulting words, all entered in the District Court on 14 March 2014. For that offending, you were convicted and granted a suspended sentence for 6 months and ordered to carry out 40 hours community work. 
The Victim
7	The victim in this matter is your 29 year old husband. In his Victim Impact Report, he said that he suffered minor scratches when you tried to bite him during your assault. He also said that your offending impacted on your relationship with his sisters. You have apologized to the victim as well as to his sisters. Your husband has asked for you to be given a chance, through the Pre-Sentence Report.
Aggravating features
8	The aggravating features of your offending are as follows:
(a)	Your offending occurred within the context of a family relationship. This by itself is an aggravating feature of your offending in accordance with the Family Safety Act 2013;
(b)	There was premeditation in your offending. You had been angered by what had occurred on the 2nd March 2016. You then assaulted your husband by throwing a rock at him on the 3rd of March. After you left by taxi, you then came back later and again assaulted him with a stick, all premeditated acts by you;
(c)	When you assaulted your husband using the stick, it was in the presence of and whilst he held your child;
(d)	Your assault involved multiple punches and ceased only with the intervention of other family members; and

(e)	You struck at your husband with a machete.
The mitigating features of your offending
9	There are no mitigating features in respect of your offending.
The Aggravating Factors as Offender: 
10	You have prior convictions from 2014 for similar offending. You have also had the benefit from your earlier offending of the Samoa Victim Support Program anger management program yet you have now re-offended.
The Mitigating features as Offender:
11	First, I take into account that you entered early guilty pleas.  Second, I take into account your remorse reflected also in your guilty pleas, your apology to the victim and his sisters and from what you have told the Court. Thirdly, I take into account your husband’s plea for leniency.
Discussion
12	Asofa’atasi, you told the Court that your conviction in 2014 was for you assaulting your mother and uttering insulting words. As a result of that offending, you were ordered to undergo a program for anger management conducted by the Samoa Victim Support Group (“SVSG”). You successfully completed that program.
13	Having successfully completed the SVSG Program, you now re-appear before the Court for sentencing for similar offending just 2 years later, this time however against your husband. The Family Violence jurisdiction of the District Court was established with the objective of, amongst other matters, addressing your offending behaviour and ensuring that you are no longer violent and your family kept safe. This aim of the Court uses programs such as those conducted by the SVSG to address your behaviour.
14	Regrettably, you are one of the few who have completed the program and appear for sentencing having committed further acts of domestic violence. For those defendants who have completed the programs directed by the Court to address their offending behaviour, they must be clear that should they re-appear before the Court for further violent offending of a domestic nature, they run the serious risk of a custodial sentence being imposed. 
15	Domestic violence is not acceptable in our community, by the Court or by the victims of domestic violence. It is a highly prevalent offence in our community and for that reason, the Family Safety Act 2013 (“the Act”) was enacted. The Act provides that domestic violence is an aggravating feature of the offence. This Court on a daily basis is confronted with many offenders having committed acts of domestic violence. 
16	Relevant to your sentencing is the wishes of your husband. In Police v Toomata [2014] WSSC 88 (10 January 2014), His Honour Chief Justice Sapolu stated:

•	“22. For sentencing purposes, the wishes or forgiving attitude of a victim can be a mitigating feature depending on the circumstances, but then only to a limited degree. In Police v Luamata [2013] WSSC 6, Police v Saveaalii [2009] WSSC 7, Police v Nunuimalo [2007] WSSC 8 and Police v Taueu [2007] WSSC 93, this Court referred to Sentencing in Tasmania(2002) 2nd ed by Professor Warner where the learned author stated at paragraph 3.420:
“A victim’s wishes or forgiving attitude cannot be given priority or be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. In McGhee (1994), a case of attempted murder, where the victims had forgiven the offender and did not want him to be punished, Green CJ said the victims’ attitude and wishes ‘ whilst not determinative are factors which militate against giving much weight to considerations of retribution and denunciation’. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender – emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim.”
17	In Police v Toomata, His Honour the Chief Justice sentenced the defendant to 18 months probation. His Honour however clearly stated to the defendant as follows:
•	“I must also warn the accused that if he appears again before the Court on any domestic violence charge, then he is most likely to go straight to Prison without any further chance being given to him. I want the accused to take this warning very seriously. He will regret it if he does not do so and he appears before the Court again on any domestic violence charge.”
18	Re-offenders in the family violence jurisdiction must be aware of the serious risk of imprisonment should they re-offend in a similar way. In your case and bearing in mind the gravity of your offending and your status as a re-offender, a custodial sentence is warranted. Your offending was premeditated, calculated and ongoing in that you had the opportunity to reflect on what you planned to do and use the skills taught to you by the SVSG to not engage in your offending. Instead of using those skills which you were taught, you ignored those lessons and continued a course of offending first using stones, then after leaving the scene, returning and again assaulting your husband. Fortunately, the use of the machete did not result in any injuries to your husband but you did bite your husband on the leg.
19	In sentencing you, I take on board your husband’s plea for leniency on your behalf. I accept that a lengthy sentence may aggravate his distress. I also take into account not only that the sentence should be a deterrent sentence, but one that should also again incorporate an element of rehabilitation to address your behaviour on your release from prison. 
The penalty
20	Taking into account your offending as a whole as well as the aggravating and mitigating factors of your offending as well as those personal to you as an offender:
(c)	you are convicted on the charges of assault and being armed with a dangerous weapon and I adopt a start point of 4 months imprisonment. For the aggravating features personal to you as an offender, I uplift this by 2 months. For your guilty plea, I deduct 2 months and for your remorse and request for leniency, 1 month. You are therefore convicted on the charges of assault and being armed with a dangerous weapon and sentenced to 3 months imprisonment, less time served. On your release from prison, you are to be under supervision by the Probation Service for a period of 9 months. During your supervision period, you are to undergo and complete an 8 week anger management program as directed by the Probation Service. These sentences are to be served concurrently; and
(d)	Insulting words, you are convicted and discharged.

JUDGE LEIATAUALESA D.M. CLARKE