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Police v Moa [2023] WSFVC 3 (20 December 2023)

IN THE FAMILY VIOLENCE COURT OF SAMOA
Police v Moa [2023] WSFVC 3 (20 December 2023)

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

IOLAMO MOA

Defendant

Representation: Inspector Poe Ualesi for Prosecution

Defendant appears in Person

Hearing: 7th December 2023
Sentencing: 20th December 2023

SENTENCE OF JUDGE ATOA SAAGA

1. Iolama Moa, you are standing before this Court for two matters with which you have been charged with on two separate occasions. Chronologically, you were first charged for traffic offences namely careless driving and taking a vehicle without the consent of the owner on the 12 February 2023. Subsequently prior to the finalization of that matter, you were again charged for assault and being armed with a dangerous weapon.
2. Both matters were transferred from the District Court to the Family Violence Court for sentencing. I will deal with the two matters separately.

TRAFFIC OFFENCES

12th February 2023

Summary Of Offending

3. On 12th February 2023, at 9.00pm, you asked a friend named Itutasioatua Tutaia for the use of a vehicle. You were informed by Itutasioatua that you could use his brother’s vehicle but the vehicle was at his brother’s place for repairs.
4. The Complainant Jason, who is later known as Itutasioatua’s brother and his wife were at their house that night. They heard the sound of their vehicle which was parked outside the house. They ran outside and saw you leaving in their vehicle without their consent. You had taken their vehicle without their consent.
5. The Complainant contacted the Police. The Police responded and found the vehicle at Maagao. It had been involved in an accident at Maagao.
6. You had abandoned the vehicle at the time of the accident.
7. Investigations were conducted and confirmed that you were speeding and could not control the vehicle resulting in the vehicle veering off the road and driving into part of a nearby property.

Aggravating Factors Of The Offending

8. You took a vehicle without the consent of the owners.
9. You failed to exercise due care when you were operating the vehicle on the road.
10. You were speeding excessively resulting in the vehicle veering off the road and driving into a family property damaging part of the property.
11. According to the second Victim Impact Report, you drove into a house. The owners had just recently renovated that part of their house for catering purposes. They spent $5,000 on repairing the damaged part of the house.
12. You ran from the scene. You have not apologized nor made any amends for the damage that you have done to both the vehicle and the house.
13. Prior to the offending, you had consumed 3 bottles of beer and two marijuana cigarettes. According to the medical report from Dr Tuitama dated 9th June 2023, you suffer from substance induced psychosis. As you were under the influence of alcohol and marijuana at the time of the offending, there is a likelihood that your account of the offending is a manifestation of your substance-induced state of mind at the time.

Mitigating Factors Of The Offending

14. According to the Probation Report, you had negotiated with a friend named Jason the purchase of a vehicle for $5,000. You gave Jason $2,500 and asked for the transfer of possession but Jason refused. On the date of the offending, a friend picked you up from home. You drove to Jason’s house and questioned him about the possession of the vehicle. Jason gave you the key to the car. You drove off in the car. You were chased by people who you presumed at the time, were sent by your friend Jason. It was during this pursuit that you lost control of the vehicle. There was only minor damage to the vehicle. You did not acknowledge the damage to the part of the property you drove into.
15. Your account of the offending did not correspond with the Complainant’s account of the events which is encapsulated in the Summary of facts.
16. You were questioned on the discrepancy and admitted that it was not the Complainant Jason who you had given the money to. It was his brother Itutasioatua who had given and negotiated the purchase of the vehicle. The Complainant was not involved nor had any knowledge of your transaction with Itutasioatua therefore he did not consent to you driving off in his vehicle. I therefore do not consider your account of the events prior to the incident as a mitigating factor of the offending.
17. In the Probation Report, you had stipulated that the reason why you were speeding was because you were chased by people who you presumed were friends of Jason. There is however no evidence of any other person or people following or pursuing you at the time. Prior to the offending, you had consumed 3 bottles of beer and two marijuana cigarettes. According to the medical report from Dr Tuitama dated 9th June 2023, you suffer from substance induced psychosis. As you were under the influence of alcohol and marijuana there is a likelihood that your account of the offending is a manifestation of your substance-induced state of mind at the time of offending. Given that you had voluntarily subjected yourself to that state, I will not consider your reasons as a mitigating factor of the offending either.

Aggravating factors as an offender.

18. You have previous convictions from 2020 for grievous bodily harm and threatening words and in 2022 for Aggravated Robbery and armed with unlawful weapons. You were imprisoned for 1 year and 3 months for the 2020 matter and in March 2022, you were imprisoned for 1 year and 7 months.
19. You were released on parole on 9th December 2022 and committed these offences on the 12th February 2023.

Mitigating factors as an offender

20. You have expressed remorse for your actions.

29th March 2023

Summary of offending

21. The victim is your Sister in law.
22. On the 29th March 2023 at around 4.00pm at home while the victim was reprimanding your son, you intervened.
23. You walked up to her with a small knife and strangled her neck. You also uttered threatening words.
24. The medical report dated 24th May 2023 stipulates that there were bruises to the neck of the victim.

Aggravating factors of the offending

25. There is a domestic relationship between you and the victim and I must consider that as an aggravating factor against you under Section 17(1) of the Family Safety Act 2013.
26. You strangled the victim resulting in bruises to her neck.
27. You were also armed with a small knife.
28. Your committed the offence in the presence of the victim’s children. The victim’s children were screaming when you walked towards her with a knife.^[1] The commission of an offence in the presence of children is an aggravating factor that I must consider against you under Section 17(2)(b) of the Family Safety Act 2013.
29. There was also a psychological and emotional impact on the victim when she saw you walk towards her while armed with a knife.^[2] She sought refuge in the nearby house.

Mitigating factors of the offending

30. You have informed the Court that the reason why you committed the offences against the victim was because the victim was reprimanding your son. I find your reaction totally disproportionate and unacceptable. You are both adults and parents. You could have settled this matter amicably without resorting to violence.

Aggravating factors as an offender

31. You have previous convictions in 2020 and 2022.
32. You committed this offence a month after you were charged for the commission of traffic offences and damage to property. Subsequent commission of offences a month later is indicative of your lack of remorse.
33. There is no reconciliation. The victim was asked by your sister to appear in Court and to advise the Court that she had forgiven you. I do not consider her appearance in Court as a genuine attempt on your part to make amends. She is only in Court under instructions of your sister and I consider her appearance as being compelled as an in law “nofotane.” The law does not and should not differentiate between status and roles. She is the victim and she should not be forced to speak on your behalf when there have not been any attempts on your part to make amends. You must realize that what you have done is wrong. Your relatives are blameworthy also of perpetuating violence when they direct the victims of violence to make declarations involuntarily thereby excusing and condoning your acts of violence at home.

Mitigating factors

34. You entered a Guilty plea.
35. You have asked the Court to consider that you have a young family to look after.
36. Your siblings have testified on your behalf and have made every effort to assist in your rehabilitation by assisting you. Your sister who is a nun in Rome and a qualified psychologist recommended your referral to Dr Tuitama for an assessment. Dr Tuitama has stipulated in his report,
    • “He will continue to improve if he remains abstinent from all substances and alcohol as well as being compliant with all medications and treatments given.”
37. Since the assessment and referral, I have observed a change in your behaviour. You appear to be more attuned and cognizant of the proceedings.

DISCUSSION

Traffic Offences

38. The purpose of sentencing you today is to hold you accountable for the harm that you have done to the victims of the crimes you have committed and to promote in you a sense of responsibility for the harm that you have done. There are two victims of the crimes.
39. You have shown no remorse at all for the commission of these offences by failing to make amends for the harm you have done.
40. The crimes were committed less than a month after you were released from parole. You were also under the influence of alcohol and drugs which were prohibited under the terms and conditions of your release on parole.
41. A custodial sentence is the most appropriate penalty for the commission of these offences. I take into consideration that a custodial sentence will provide the court with the assurance that you will not be able to consume any alcohol or illegal substances while incarcerated. This will also be beneficial for your rehabilitation and health as stipulated in the report from Dr Tuitama which stipulates as follows “, He will continue to improve if he remains abstinent from all substances and alcohol as well as being compliant with all medications and treatment given. He will require regular review with the mental health after every 21 days.”
42. Careless Driving under Section 39(1) of the Road Traffic Ordinance 1960 imposes a maximum penalty of 2 years or a fine of $1,000 tala. Driving without the consent of a person under Section 60 and 72 (2) attracts a penalty of 2 penalty units.
43. In respect of the Careless driving, I impose a custodial sentence of 6 months. In respect of the driving without the consent of a person, you are convicted and discharged.

Family Violence Matter

44. There have been an increasing number of cases involving strangulation of victims filed in the Family Violence Court under assault charges due to the lack of visible injuries.
45. CJ Sapolu in Police v Niko [2013] WSSC 65 provided useful guidelines for Prosecutors in determining what constitutes Assault, Actual Bodily Harm and Grievous Bodily Harm. The primary focus of these guidelines however has been on the external and visible signs of injuries.
46. Strangulation and the momentarily holding of a victim’s neck even for a few minutes can cause more fatal and significant injuries to the victim than a visible injury from assault, actual bodily harm or grievous bodily harm.
47. Strangulation is now a new offence under the New Zealand Crimes Act following a recommendation by the Law Commission in its report, Strangulation: The Case for a new Offence.
48. At 1.3 of this report it is stipulated that,
    • “Two key factors distinguish strangulation from most other forms of family violence. First it is an important risk factor for a future fatal attack by the perpetrator. Victims of family violence who have been strangled have seven times the risk of going on to be killed than those who have suffered other forms of violence by not strangulation. People who make decisions about the victim or the perpetrator (particularly Judges) need to understand the risk so that they can make decisions that will help to keep the victim safe. Second it characteristically leaves few marks or signs, even sometimes when it is life threatening. That presents unique challenges for prosecution and contributes to the dangerousness of strangulation being underestimated and the perpetrators not being held appropriately accountable. “
49. Strangulation carries maximum penalty of seven (7) years.
50. The Ministry of Justice and Courts Administration is now reviewing the Family Safety Act 2013 and all related family matters. Perhaps it is an important junction to also consider whether to adopt the approach taken by New Zealand in terms of a separate offence for strangulation. To charge Defendants with assault for strangulation of victims undermines the seriousness and fatality of this act of violence which should carry a higher penalty.

CONCLUSION

51. I will take assault as the principal offence. I will impose a starting imprisonment term of 10 months. Uplift it for 2 months which leaves a total of 12 months. I will then deduct 3 months leaving a total of 9 months to be served for this charge.
52. In respect of the Armed with a dangerous weapon, I will impose an imprisonment term of 3 months which is to be served cumulatively to the assault charge. The strangulation and being armed with a dangerous weapon are two separate acts that distinctly caused fear and apprehension of serious injuries to the victim. These acts were also witnessed by her children.
53. The charge of assault and armed with a dangerous weapon are to be served cumulatively to the careless driving charge which brings your total imprisonment term to 1 year and 6 months.
54. The imprisonment term will also reduce the chances of you consuming alcohol and drugs which will assist with your medical condition. The Mental Health Unit will be able to administer the treatment in prison also during your time of incarceration.

JUDGE ATOA SAAGA

^[1] Section 17(2)(b) of the Family Safety Act 2013
^[2] ibid., s. 17(2)(c).