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Police v Gordlina [2019] WSFVC 3 (20 September 2019)

FAMILY VIOLENCE COURT OF SAMOA
Police v Gordlina [2019] WSFVC 3

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

NGANUKU GORDLINA,
male of Vaitele Uta
Defendant

Counsel:
R Titi for Prosecution
Unrepresented

Sentencing: 2^nd September 2019
Decision: 20^th September 2019

SENTENCING DECISION OF ATOA-SAAGA

The Charges

1. You appear before this Court on two charges. The two charges are:
   • (a) Threat to kill pursuant to Section 129 of the Crimes Act 2013 which carries a maximum penalty of 3 years
   • (b) Assault pursuant to Section 123 of the Crimes Act 2013 which carries a maximum penalty of a year.

Summary of facts

2. The Summary of facts dated 28^th June 2019 was read out to you and you accepted that on the 24^th April 2019 at 2am, you were drinking alcohol with your father at your family home at Vaitele-uta. Later that night in your bedroom, you said to the victim, “Vaai I ou kago aku fasioki oe, koe kasi le pulufaga la I ia au faaaoga e faga ai oe.” (Watch out. I will kill you. There is only one bullet left that I will use to shoot you)
3. The following night on 25^th April 2019 while drinking at RSA night Club, you met your co Defendant and you left together in a taxi. You travelled to Upper Motel at Matautu, checked into a room and had sexual intercourse with her.
4. Unbeknown to you, the victim received information that you were in the motel and waited in a taxi outside until you both exited the hotel. Your co-defendant left the hotel around 3am. You left shortly after. The victim followed you in a taxi to Vaitele uta.
5. The victim found you in bed when she arrived home and you had a confrontation with her when she told you what she had witnessed. During the argument, you punched her on the forehead and she fell back onto the bed. You kicked her on the neck I found that fact difficult to visualize until Prosecution elaborated and you accepted that you placed your foot on her neck and tried to strangle her but instead you kicked her neck.

Background of the Accused

6. You are a 36 years old male of Saleufi and Vaitele uta. You are currently employed by the Tokelaun Office at Savalalo.

Background of the Victim

7. The victim is 30 years of age. At the time of the incident, she was living with you at your family home at Vaitele. The victim is your wife and the mother of your three children. She is unemployed and according to the victim report, you have continuously prohibited her from working.

Aggravating features of the offence

8. Section 17(1) of the Family Safety Act 2013 stipulates that where an offence takes place within the context of a domestic relationship, the Court shall consider that fact as an aggravating factor against the offender. The victim is your wife and the mother of your children.
9. The threat to kill the victim is both unacceptable and unjustified.
10. You not only breach your wife’s trust by having an adulterous relationship with another woman but when confronted with the wrongdoing, you committed another wrong and another offence by assaulting her physically.

Mitigating factors of the offending

11. Whilst the assault can be considered as provocation in that it happened during an argument and when she confronted you, your response in assaulting her cannot be considered as appropriate or justified in light of what she had witnessed earlier.
12. You have told the Probation Officer of the psychological abuse that you have suffered because of your wife’s jealousy and interference in your life. You have made reference also to her previous relationship with you being her third husband. All these I have listed in your favour as mitigating factors but in the Court’s consideration lacks any merits for your acts of violence and infidelity. You are an adult who has fathered three children with the victim. Irrespective of how many relationships she has had in the past, you willingly married her and had three children with her. Her weaknesses that you have laboriously outlined are not a justification for you committing acts of violence or infidelity. You were solely responsible for the acts that you committed.

Aggravating features as an offender

13. You have a previous conviction for actual bodily harm. The victim of the previous matter was your sister. I do accept that there was an element of provocation in the earlier matter of which you showed remorse and was justified to come up for sentence in twelve months.
14. In this matter however, you have shown a lack of remorse. The program providers of the Teen Challenge program that you were referred to and supported by your wife reported that you did not turn up to most of the sessions and if you did turn up, you were drunk. Your wife also confirmed that you were intoxicated

Discussions

15. This is the second time that you have stood in this court for committing an act of domestic violence against a woman. The first time you stood before this Court, your sister was a victim. In the current matter, your wife and the mother of your 3 children is the victim. The commission of act against a woman and especially a woman that is in a domestic relationship with the perpetrator is wrong. It is an act of violence that is not condone by this Court.
16. You were intoxicated when you uttered threats to kill your wife by shooting her. Your intoxicated state is not an excuse for violence. Alcohol is never the main cause of violence. Alcohol only exacerbates violence. Whilst the act of domestic violence also was in the utterance of threats to kill, words have the power of life and death. Words are loud in the Family Violence Court especially when it is a threat to kill a person by whatever means.
17. You assaulted your wife when she confronted you. A real man would have not reacted the way you did. A strong man would have admitted that he is at fault and inflict no further harm on the hurting party. You obviously had no such qualms. Your act of violence is an act of cowardice and cruelty
18. Your callous treatment of your wife is mirrored in your nonchalant approach towards the program providers. You not only missed sessions but appeared at sessions intoxicated. The victim impact report and report provided by Teen Challenge program stipulates that your wife attended the sessions with the hope that you will reconcile and make amends. Her ultimate goal was for you to return to her and your children after the program fully rehabilitated. She was willing to overlook your acts of violence and infidelity.
19. I must stress that the referral of a perpetrator to a program is not for the purpose of reconciling a perpetrator with his wife or children especially after the commission of an act of domestic violence. The main purpose of a program is for the defendant to come to the realization that what he has done is wrong and take active steps to change and rehabilitate himself. The Court must be assured at the end of the program that the perpetrator is truly remorseful for what he has done and has and will take active steps to change his ways and not to ever commit nor subject the victim to any further act of domestic violence in the future.
20. The Court also will not so easily overlook acts of domestic violence. In this matter, the Defendant has shown lack of remorse and willingness to change. Infidelity and commission of acts of violence are two distinct acts that cannot be alleviated simply by the willingness of a victim to reconcile and overlook the acts committed. Good intention on her part will not stop the commission of any further acts of domestic violence especially if the defendant has shown no remorse.

Conclusion

21. You are hereby convicted and sentenced to 2 months imprisonment for the charge of threat to kill.
22. You are hereby convicted and sentenced to 1 month imprisonment. The charge of assault to be served concurrently with the charge of threat to kill.

JUDGE ATOA-SAAGA