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Police v Kopelani [2019] WSFVC 7 (9 August 2019)

IN THE FAMILY VIOLENCE COURT OF SAMOA
Police v Kopelani [2019] WSFVC 7

IN THE FAMILY VIOLENCE COURT OF SAMOA

HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

NIUTI TUAOIMAALII AUVAE,
male of Fagalii, Malie and Tufulele
Defendant

Counsels: R Titi for Prosecution
Unrepresented

Decision: 09 March 2019

SENTENCING DECISION OF JUDGEATOA-SAAGA

The Charges.

1. The Defendant was charged with Causing Injury pursuant to Section 119 (1) and Intentional Damage pursuant to Section 184(2)(a) of the Crimes Act 2013. The maximum penalty for the former charge is imprisonment term for a period of seven years whilst the latter attracts a penalty of no more than 7 years.
2. The Defendant pleaded guilty to both charges and it was set down for sentencing on 10^th of May 2019.
3. On the 10^th May 2019, the Defendant disputed the summary of facts. It was then adjourned to 13^th June 2019 for the hearing of the disputed facts. At the end of the hearing, the revised summary of facts stipulated as follows;
   • (a) On the 25^th December 2018 around 2.26pm at Vailele, members of the village and the victim’s family were having a BBQ in front of the victim’s house. During this time, the defendant was drunk. As the victim was preparing things in the house, she heard something break in front of the house.
   • (b) As she got to the front, the victim found her table damaged and blamed the defendant for breaking it as he was sitting on it. The Defendant then got angry and approached the victim where he grabbed the victim’s shirt and tore it.
   • (c) Followed after this, the Defendant hit the victim before members of the family intervene. The Victim fell back onto the ground outside the house which was covered with coral (amuamu) and stones. The Defendant grabbed both her hands and pulled her towards the kitchen at the back on her stomach. As a result, her chest, cheeks and right side were bruised.
   • (d) The victim managed to free herself and run towards the house at the back. Before she was able to close the door, the Defendant grabbed her and pulled her out. She fell back onto the cement steps hitting her eye. She became unconscious and her nephew tried to revive her.

The Defendant

4. The Defendant is a 35 years old male of Malie and Vailele. He is in a relationship and has five children. He is self-employed.

The Victim

5. The Victim is a 50 years old female of Leufisa. She is married with no children.

Aggravating features of the offence and the offender.

6. Section 2(d) of the Family Safety Act 2013 defines domestic relationship as a relationship between a complainant and a respondent and includes relationship where they are family members related by blood or marriage. The Complainant is related to the Defendant’s wife.
7. Section 17(1) stipulates that where there is a domestic relationship the Court shall consider that fact as an aggravating factor against the offender.
8. The victim is an elderly woman. Your reference to her as a tomboy does not in any way change the fact that she is a woman. She has stood in court as a frail elderly woman who is much smaller in built and size.
9. You were intoxicated.
10. You have not apologized to the victim nor has there been any reconciliation.

Mitigating factors of the offending

11. You submitted on your behalf that the victim was also drunk at the time. She reprimanded you also in front of everyone who was present and accused her of breaking her table. She uttered harsh words towards you. She put her hand also over your mouth whilst screaming at you. She also scratched you.
12. I do accept that there is an element of provocation on the part of the victim but any act of provocation on her part pale in comparison to the acts of violence that you committed on her following her act of provocation.

Mitigating features as an offender

13. You are a first offender.
14. You pleaded guilty at first instance.
15. You were referred and completed the Tama Faufautua program which is an anger management program and an advocacy training for men against violence.
16. According to the Pre-sentence report, you are the main provider in your family. You run e a small bakery where you sell puddings and supplies Taito supermarket at Vailele. You have 5 young children. Your wife looks after your children whilst you earn the income for your family by selling puddings. You are currently staying at her family.
17. Your Pastor speaks highly of you as a devoted member of his church who attends church regularly.
18. The mayor of Vailele has also provided a letter in support.

Discussion

19. Alcohol is not the primary cause of family violence. Alcohol only exacerbate violence and must never be seen as an excuse for the acts of violence on women.
20. You committed the act because of your own belief that this particular woman was inferior and she deserved it. Your continuous emphasis and reference to her as a tomboy shows your own bias and misconceived perception of the victim as if that fact alone justifies the act of domestic violence.
21. You showed a lack of remorse in the way you describe your acts of violence and seem pleased to elaborate on the acts that you committed including dragging her on the sharp edged coral. In my observation, you have not come to the full realization even after the program that what you have done is a heinous, atrocious and brutal act on a woman and that she does not deserve at all your vicious attack.
22. Your regrets are only in relation to the consequences of your actions and what it will mean for you personally but you have not fully grasped the effect of your acts on the victim. Unless you come to that realization, you will not appreciate at all the training and valuable lessons from your program with Samoa Victim Group. I commend Samoa Victim Group Men Advocacy trainers for all their hard work and commitment to instill important values in the attendees. They have finished their work but it is up to you to apply these principles in your life rather than just hearing it and still living with the same mindset.
23. It is important to emphasise that participation in a program does not automatically result in the imposition of a non-custodial penalty. It is the sole discretion of the Court to decide on the facts before the Court, the reports provided by the program providers and Probation services and observation of the defendant after the program to determine whether to impose a custodial or non-custodial sentence. Participation and completion of a program will be considered as a mitigating factor.
24. After due consideration, it is my view that the imposition of a custodial sentence is inevitable and is the only way to bring you to full realization that the acts of violence on the victim was not justified under any circumstances. You treated her like an animal with no regards for her life and her cries for mercy.
25. Whilst it is a consequence that your wife and your children will suffer whilst you are in jail, the long term benefits of a fully rehabilitated husband, father and citizen of Samoa far outweighs your current predicament.

Conclusion

26. Prosecution has asked that the Court considers a starting point of 2 years. For all the aggravating features, I will impose a 2 years imprisonment term. I will then deduct 8 months for completing the program knowing that if applied and adopted those lessons will deter you from committing any acts of domestic violence in the future. I will deduct another 6 months for your good record in that you are a first offender and in consideration of your wife and children and the effect of your imprisonment term on them. For your guilty plea, I will deduct 3 months.
27. In total, I hereby convict you to serve an imprisonment term of 7 months.

JUDGE ATOA SAAGA