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Police v Faanati [2019] WSFVC 4 (9 March 2019)

FAMILY VIOLENCE COURT OF SAMOA
Police v Faanati [2019] WSFVC 4

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

BETWEEN:

POLICE
Informant

AND:

MALO FAANATI aka UITIME FAANATI,
male of Solosolo
Defendant

Counsel:
V Afoa for Prosecution
D Kerslake for Defendant

Decision: 9^th March 2019

SENTENCING DECISION OF ATOA-SAAGA

Charge:

1. Malo Faanati aka Uitime Faanati, you appear for sentencing after pleading guilty to the following two charges:
   • (a) Reckless damage pursuant to Section 184(2)(a) of the Crimes Act 2013. The maximum penalty for this offence is 7 years imprisonment.
   • (b) Armed with a Dangerous Weapon pursuant to Section 25 of the Police Offences Ordinance 1961. The maximum penalty is 1-year imprisonment term.

The Offending:

2. The Summary of Facts was read out to you and you accepted that on the 15^th July 2018 at 12.30am, the victim and her son woke up when she heard loud noise emanating from the back door of her house. She heard you calling out to her husband to come out.
3. The victim was terrified She saw you walking towards their house with a machete with which you used to hit 4 louvers. The value of these louvers is $12.00.

Background of the Accused

4. You are a 48 year old male. You are married with children and you are currently unemployed.

Background of the Victim

5. The victim is a 29 year old female. She is married and has a child.

Aggravating Features of the Offending

6. There is a domestic relationship. You are married to the victim’s aunty and you are part of the extended family. Domestic Relationship as defined under Section 2 of the Family Safety Act 2013 includes a relationship between family members whether related by blood or marriage. Pursuant to Section 17 of the Family Safety Act, the Court shall consider a domestic relationship as an aggravating feature where an offence was committed within a domestic relationship.
7. You were armed with a machete.
8. The victim was at home with her daughter. They were in fear when you walked over with a machete.
9. You used the machete to damage the louvers of the house.
10. You were intoxicated at the time of the offence.

Mitigating Features of the Offending

11. The victim had an argument with your wife earlier. Her husband had cut down a banana brunch from one of the banana trees that you planted and sold it. According to the victim, the banana was used for consumption.

Aggravating features as an offender

12. You have 1 ½ pages of previous convictions for traffic offences.

Mitigating Factors as an Offender

13. You pleaded guilty.
14. You have completed the anger management rehabilitation program
15. You have also apologised and have reconciled with the victim and her family.
16. Your Pastor has provided a letter also in support of a lenient sentence.

Application for a Discharge Without Conviction

17. Your Defence Counsel has filed an application for a discharge without conviction under Section 69 and Section 70 of the Sentencing Act 2016. Even though Section 70 stipulates that it is to be used as a guidance, it is mandatory for the Court to consider prior to discharging a Defendant without a conviction that the direct and indirect consequences of a conviction to the Defendant would be out of proportion to the gravity of the offence.
18. Prior to the enactment of the Sentencing Act 2016, the Court had adopted in Police v Papalii [2011] WSSC 132 the 3 steps approach for a discharge without conviction which is
    • (a) The gravity of the offending
    • (c) Consequences of a conviction and
    • (d) Whether the consequences are out of all proportion to the gravity of the offending
19. Judge Papalii in Police v Lilo Lauina[2017] WSDC 6 affirmed that Section 69 and 70 does not create a new threshold and that 3 step approach still applies.

Gravity of the Offending

20. In assessing the gravity of the offending I have weighed the aggravating features against the mitigating factors of the offending. In assessing the gravity of the offending, I am not persuaded that the element of provocation is sufficient to negate the seriousness of the aggravating factors. You caused fear. You were intoxicated and armed with a machete at 12.30am. You did not just stop when her husband did not appear. You walked over to the house and hit the louvers. The victim was with her daughter. They were vulnerable and terrified of what you were capable of doing. I consider the gravity of your offence as medium to high.

Direct and Indirect Consequences of the Conviction

21. It has been submitted on your behalf that a conviction will unravel all the good works that you have done in the past 18 years to keep a good record. It may also affect your travelling particularly to Australia. A conviction will put a stain on your reputation also.
22. Notwithstanding the fact that your last conviction was in 2000 for a traffic offence, the 17 convictions recorded against you from 1999 to 2000 cannot be erased nor eliminated with time. Similarly, you have travelled extensively overseas since 2000 despite the number of convictions recorded.
23. Irrespective also of whether you are now standing before the Family Violence Court for the first time, it does not make you a first offender which is a key factor that the Court will consider when assessing an application for a discharge without a conviction.

Whether the Consequences are out of Proportion to the Gravity of the Offending

24. After weighing all the consequences, I find that these consequences are not out of proportion to the gravity of the offending.

Conclusion

25. I hereby decline your application for a discharge without conviction.
26. I hereby convict you and sentence you to 6 months supervision.

JUDGE ATOA-SAAGA