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Police v Lei [2024] WSFVC 1 (1 July 2024)

IN THE FAMILY VIOLENCE COURT OF SAMOA
Police v Lei [2024] WSFVC 1 (01 July 2024)

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

ZHAO LEI

Defendant

Representation: Prosecution represented by Ms. Kolia
Defendant Represented by Mr. Fuimaono

Sentence Hearing: 5^th April 2024
Sentencing Decision: 1^st July 2024

SENTENCING DECISION OF JUDGE ATOA-SAAGA

INTRODUCTION:

1. The Defendant is charged with Causing injury pursuant to Section 119(1) of the Crimes Act (CA) 2013. The maximum penalty for imprisonment under Section 119(1) of CA 2013 is seven (7) years.
2. The Defendant is 40 years of age. He is a Chinese National. He is in a de facto relationship. He is a builder by profession.
3. The victim is his de facto wife. She is 22 years old. She has a child with the Defendant.

SUMMARY OF THE OFFENDING

4. On the 13^th June 2023 at around 7pm, the Defendant and the victim had a dispute over marital issues.
5. The Defendant got angry with the victim and hit her head with the mobile phone. He also bit her left arm, pushed her onto the floor causing the victim to fall and hit her head on the ground.
6. According to the Summary of Facts, she sustained a laceration on her head and a bruise on her left arm.
7. I have perused the medical report which stipulates as follows:
   • “Upon arrival at the ED, the patient complained of back pain, headache and a bruise on her left arm. Initial assessment indicated that her vital signs were within normal ranges, and she remained alert throughout the examination. Apart from the bruise on her left arm, the rest of the physical examination yielded normal findings. X ray conducted during the evaluation also revealed normal results. In light of the absence of significant radiological abnormalities and overall normal physical examination, the patient was discharged with a prescription for paint relief.”
8. After perusing the Medical report, I am inclined to accept that there was no laceration on the victims’ head. She only had a bruise on her left arm. While she complained of feeling pain in her back, head and neck, the medical report finds that there was only a bruise on her arm which is consistent with the Summary of Facts and the Victim impact report that she was bitten by the Defendant.

APPLICATION FOR A DISCHARGE WITHOUT CONVICTION

9. The grounds for filing of the application for a discharge without conviction:
   • (a) The offending is at the lower end of the scale.
   • (b) The conviction will impact his future work opportunities in Samoa.
   • (c) The consequences of a conviction would be out of proportion to the gravity of the offence or culpability of the offending.
10. Prosecution opposes the application and submits that the offending is at the high end of the scale because of the prescribed maximum imprisonment term of 7 years. The letter from his employer does not confirm that the Defendant’s employment will be terminated if he is convicted. A conviction is fitting for the crime and that the Defendant will not lose the opportunity to work in Samoa or China.

LAW ON DISCHARGE WITHOUT CONVICTION

11. Section 69 of the Sentencing Act 2016 provides:
    • (i) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
    • (ii) A discharge under this section is taken to be an acquittal.
12. Section 70 of the Sentencing Act provides that, “The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.
13. The Court of Appeal in Attorney General v Ropati [2019] WSCA 2 (15 April 2019) stipulated the factors that the Court must consider:
    • (i) Gravity of the offence, a task which includes having regard to the aggravating and mitigating factors.
    • (ii) The Direct and Indirect consequences of a Conviction and
    • (iii) Consequences would be out of all proportion to the gravity of the offence and, if so,
    • (iv) Exercise a discretion as to whether a discharge without conviction should be the outcome.

GRAVITY OF THE OFFENDING

14. In determining the gravity of the offending, I must take into consideration both the aggravating factors of the offending and the offender and weigh that against any mitigating factors of the offending and the offender.

Aggravating Features of Offending

15. Pursuant to Section 17 of the Family Safety Act 2013, I must consider the domestic relationship between the Defendant and the victim as an aggravating factor of the offending. The victim is his wife.
16. The victim became scared and feared for her safety when the Defendant hit her with his phone. While I have found that there was no laceration on her head, she complained of pain in her head when he hit her head with the phone.
17. There is a bruise on her left arm from where the Defendant bit her arm.

Aggravating Factors as an Offender

18. There are no aggravating factors as an offender.

The Mitigating Features as an Offender

19. The Defendant is a first offender.
20. The Defendant arrived in Samoa in 2018 and has worked in Samoa since.
21. The Defendant pleaded guilty to the charge.
22. The Defendant and his wife have reconciled. They are living together with their child. The victim has appeared during all the mentions of this matter and has asked the Court for leniency for her husband as he is the main income earner for her and their child.
23. The General Manager of Metek Co Ltd has provided a supporting reference and vouches that the Defendant is an honest, hardworking and dedicated worker.
24. Tuala Tamaalelagi Tuala the Chief Executive Officer of Gambling Controlling Authority has also provided a supporting reference in which he vouches of the Defendant’s good character and professionalism.
25. I find the gravity of the offending mid range from moderate to low.

DIRECT AND INDIRECT CONSEQUENCES

26. [26] In Police v Lauina [2017] WSDC 5, Judge Papalii adopted the test in Iosefa v New Zealand Police (CIV-2005-409-64, 21 April 2005) where it is stated that,
    • “...it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.”
27. Defendant through Counsel has submitted that there is a risk that the Defendant’s employment will be terminated if a conviction is imposed.
28. I agree with Prosecution that there is nothing in the letter from Metek Co Ltd that stipulates that the Defendant’s employment will be terminated if he is convicted of the charge.
29. Counsel has referred the Court to Section 15 of the Immigration Act 2020 which requires the filing of the declaration form and that a conviction on that form may have an impact on him allowed back into the country as the Defendant travels to China to see his family at times.
30. I do not accept the filling of the declaration form of a conviction by the Defendant as providing a real and appreciable risk that the Defendant will be prohibited by Immigration from entering Samoa. It is not for the Court also to usurp the authority of the Immigration Services and impose our views on how the Immigration Authority should decide if the Defendant is to enter the country or not after a visit to China^[1].
31. I find that there is no real and appreciable risk of a direct and indirect consequence on the Defendant should a conviction be entered.

WHETHER THE CONSEQUENCES ARE OUT OF PROPORTION TO THE GRAVITY OF THE OFFENDING

32. The consequences of imposing a conviction against the Defendant is not disproportionate to the gravity of the offending which I have assessed to be mid range between moderate and low. I will not exercise my discretion to discharge the Defendant but will convict the Defendant to come up for sentence in 6 months.

COMMENTS

33. There has been increasing number of Chinese nationals married or in a de facto relationship who have appeared in Court as Defendants in family violence matters.
34. Currently the Court is unable to refer these Chinese nationals to the existing programs because there are no programs conducted in any of the Chinese dialects or adapted to cater for these Defendants.
35. With the increasing number of Chinese nationals appearing in Court, it is important for the Ministry to discuss the engagement of translators who can speak any of the Chinese dialects or the most common dialect that any Chinese national will understand. We have Chinese nationals who have been living in Samoa and also Students who have studied in Universities in China who may assist the Court with translations.
36. The Ministry also can conduct a survey of how many nationals of foreign nations have appeared in Court and what rehabilitation programs can be initiated to provide support for the families of these nationals as domestic violence does not discriminate by race or nationality.
    

JUDGE SAAGA
DISTRICT COURT JUDGE

^[1] Attorney General v Ropati [2019] WSCA 2 para 66