DISTRICT COURT OF SAMOA
Police v Pesamino, Levasa [2016] WSDC

Case name: 	Police v Pesamino, Levasa	
		
Citation: 	[2016] WSDC	
		
Sentence: 	13 October 2016	
		
Parties: 	POLICE v SOLA AUVAE PESAMINO, male of Nuu and Fasitoo tai and FILIPO LEVASA, male of Nuu fou and Samalaeulu Savaii	
		
Hearing date(s): 		
		
File number(s): 	D3711/16, D3712/16, D3713/16, D3714/16, D3715/16, D3716/16, D3717/16, D3718/16, D3719/16, D3720/16.	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court Samoa Mulinuu	
		
Judge(s): 	JUDGE LEIATAUALESÃ D M CLARKE	
		
On appeal from:		
		
Order:	1	For you Sola, you are sentenced as follows:
•	(a)	Information D3711/16, 5 month imprisonment start point uplifted to 6 months for the aggravating features personal to you. I deduct 2 months for your early guilty plea. You are therefore convicted and sentenced to 4 months imprisonment less time served. On your release, you are placed under the supervision of the Probation Service for 12 months on the special condition that (1) you are to successfully complete an alcohol and spiritual counseling program as directed by the Probation Service and (2) you are not to consume alcohol; 
•	(b)	For Information D3712/16 and D3714/16, you are convicted and sentenced to 3 months imprisonment to be served concurrently to D3711/16,
•	(c)	For the charges of being armed with a dangerous weapon and throwing stones, you are convicted and sentenced to 1 month imprisonment to be served concurrently with Information D3711/16, D3712/16 and D3714/16.
2	For you Filipo, are sentenced as follows:
•	(a)	For information D3711/16, you are sentenced to time served whilst remanded in custody. On your release, you are placed under the supervision of the Probation Service for 12 months on the special condition that (1) you are to successfully complete an alcohol and spiritual counseling program as directed by the Probation Service and (2) not to consume alcohol;
•	(b)	For Information D3712/16 and D3714/16, you are convicted and sentenced to 2 months imprisonment to concurrent to D3711/16,
•	(c)	For the charges of being armed with a dangerous weapon and throwing stones, you are convicted and sentenced to 1 month imprisonment served concurrent with Informations D3711/16, D3712/16 and D3714/16.
3	This means Filipo that you have now completed your sentence of imprisonment.

	
		
Representation: 	
Ms I Atoa for National Prosecution Office
Defendant in person	
		
Catchwords: 	Intentional Damage (4), Throwing Stones (4), Armed with a Dangerous Weapon (2)	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.184(2) & s.33 – Police Offence Ordinance 1961 s.25& s.26.

		
Cases cited:	Police v Kelemete [2014] WSSC 10 (17 February 2014),  Police v Faamati [2013] WSSC 81 (2 October 2013), Police v Leilua [2016] WSSC 52, (Police v Pesaleli [2014] WSSC 13 (3 March 2014)	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

SOLA AUVAE PESAMINO, male of Nuu and Fasitoo tai and FILIPO LEVASA, male of Nuu fou and Samalaeulu Savaii
Defendants

Counsel:	
Ms I Atoa for National Prosecution Office
Defendant in person

Sentence:	13 October 2016

SENTENCING DECISION OF JUDGE CLARKE
4	Sola Pesamino and Filipo Levasaa, you both appear for sentencing on the following charges:
•	Three joint charges of intentional damage pursuant to section 184(2) of the Crimes Act 2013 carrying a maximum penalty of 7 years imprisonment each;
•	Individually charged with one charge of being armed with a dangerous weapon carrying a maximum penalty of 1 year imprisonment; and
•	Individually charged with one charge of throwing stones pursuant to section 4(h) of the Police Offences Ordinance 1961 carrying a maximum penalty of 3 months imprisonment or fine of $200.00.
•	You both entered early guilty pleas to the charges before the Court.
The Offending
5	On the evening of the 18th June 2016, you were both consuming alcohol at Nuu-fou. At around 12.30am, you had both become intoxicated and then armed yourselves with stones and then threw those stones at the property belonging to Laiese Meaalofa. A number of cars were parked in the property and damaged by your stone throwing. The damage caused by you both were as follows:
•	Mazda Proete owned by Maselina Nauer – shattered windscreen damage cost of $1,800.00;
•	Private Ford Falcon owned by Ulugia Matau Matafeo - shattered windscreen damage cost of $1,800.00; and
•	Nissan Premma owned by Laise Mealofa - damage to back bumper valued at $800.00.
The Accused
6	You Sola are a 23 year old male of Nu’u-Fou and Fasitoo-tai. You are unmarried and unemployed. You Filipo are a 25 year male of Nu’u-Fou and Samalaeulu Savaii. You are unmarried and have no children. 
The Victim
7	There are 3 victims to your offending. They are the owners of the cars damaged by you both. These victims are Maselina Nauer, Ulugia Matau Matafeo and Laise Mealofa.
Aggravating features of Offending
8	The aggravating features of your offending are as follows:
•	The number of victims to your offending
•	The value of the damage caused by you both
•	Your level of intoxication
•	Your use of the stones to cause the damage by you both representing a danger not only to property but to people
•	Your offending occurred at 12.30am as families were at rest in the peace of the night.
The mitigating features of your offending
9	There are no mitigating features in respect of your offending.
The aggravating factor relating to you as an Offender:
10	Sola, you have a prior conviction for drunkenness and resisting and misleading Police entered on 21 October 2015. Filipo, you have no prior convictions so there are no aggravating features personal to you as an offender.
The mitigating factors relating to you as an Offender:
11	The only mitigating factor to your offending is your early guilty pleas.
12	You both told the Court that you are remorseful for your actions. I do not accept that you are remorseful as you have failed to apologise to the victims, you have not met with them nor have you made any contribution towards payment of the damage caused by you both. Furthermore, your expressions of remorse in Court lacked any sense of genuineness. 
Discussion
13	The offences committed by you both are serious offences. This is reflected by the maximum penalty that may be imposed by the Court in terms of the charge of intentional damage having an imprisonment term of up to 7 years. You have pleaded guilty each to 3 charges of intentional damage, each carrying a maximum penalty of 7 years. 
14	The value of the damage caused by you both out of your actions on this night was significant and amounted to $4,400.00. You both became intoxicated and without any regard to the property or safety of others, threw stones in to Laiese Meaalofa’s property with the intention of damaging the cars there. You did this at 12.30am when families were at rest. Having caused that damage, you have taken no responsibility to make good the damage you have caused to the innocent victims of your actions.
15	Offences committed by you both have become an all too common type of offending in our community. Offenders consume alcohol, become intoxicated and then start to throw stones and damage property or injure people without regard to the consequences of those actions on others. This conduct is unacceptable and has become of serious concern to the Courts of Samoa. As a result, sterner sentences have been imposed. In Police v Kelemete [2014] WSSC 10 (17 February 2014), His Honour Sapolu CJ clearly flagged this concern and the necessity for deterrence in sentencing, even in the case of first offenders. His Honour Sapolu CJ stated:
•	“I wish to note that up to now this Court has been imposing non - custodial sentences for causing intentional damage to property where the offender is a first offender and has pleaded guilty to the charge. However, the Court has become very concerned about the high rate of this type of offending and therefore the need for deterrence. As this will be the first case that a custodial  sentence as been imposed by this Court on an offender who caused intentional damages  to property, I have taken six months as starting point for  sentence so as not to make too sudden a change to the Court’s sentencing policy for this type of offending. The starting point for sentence may be higher in the future.”
16	Whilst offenders may have no regard to the consequences of their actions on their victims, offenders must be quite clear that a consequence of their offending on them is the real risk of an imprisonment term being imposed even for first offenders. In your case, an imprisonment term will be imposed due to the circumstances of your offending, the aggregate value of the damage caused and as a deterrence to others. The sentence will also however include a component for rehabilitation. 
17	I have had regard to sentences handed down in Police v Faamati [2013] WSSC 81 (2 October 2013), where the defendant was a first offender but had caused $5,000.00 damage with a starting point for sentence of 9 months; Police v Leilua [2016] WSSC 52, involving a high degree of premeditation and damage of $7,436.00. In sentencing you both, I adopt the totality approach in sentencing (see Police v Pesaleli [2014] WSSC 13 (3 March 2014) and adopt Information D3711/16 as the lead charge. I bear in mind that you have been remanded in custody since about 12 July 2016.
The penalty
18	For you Sola, you are sentenced as follows:
•	(a)	Information D3711/16, 5 month imprisonment start point uplifted to 6 months for the aggravating features personal to you. I deduct 2 months for your early guilty plea. You are therefore convicted and sentenced to 4 months imprisonment less time served. On your release, you are placed under the supervision of the Probation Service for 12 months on the special condition that (1) you are to successfully complete an alcohol and spiritual counseling program as directed by the Probation Service and (2) you are not to consume alcohol; 
•	(b)	For Information D3712/16 and D3714/16, you are convicted and sentenced to 3 months imprisonment to be served concurrently to D3711/16,
•	(c)	For the charges of being armed with a dangerous weapon and throwing stones, you are convicted and sentenced to 1 month imprisonment to be served concurrently with Information D3711/16, D3712/16 and D3714/16.
19	For you Filipo, are sentenced as follows:
•	(a)	For information D3711/16, you are sentenced to time served whilst remanded in custody. On your release, you are placed under the supervision of the Probation Service for 12 months on the special condition that (1) you are to successfully complete an alcohol and spiritual counseling program as directed by the Probation Service and (2) not to consume alcohol;
•	(b)	For Information D3712/16 and D3714/16, you are convicted and sentenced to 2 months imprisonment to concurrent to D3711/16,
•	(c)	For the charges of being armed with a dangerous weapon and throwing stones, you are convicted and sentenced to 1 month imprisonment served concurrent with Informations D3711/16, D3712/16 and D3714/16.
20	This means Filipo that you have now completed your sentence of imprisonment.

JUDGE LEIATAUALESÃ D.M. CLARKE