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Police v Kalolo [2019] WSFVC 2 (26 August 2019)

FAMILY VIOLENCE COURT OF SAMOA
Police v Kalolo [2019] WSFVC 2

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

BETWEEN:

POLICE
Informant

AND:

POLICE v PETELI SUA KALOLO aka PETELI SULA KALOLO,
male of Leauvaa
Defendant

Counsel:
R Titi for Prosecution
Unrepresented

Hearing: 18^th July 2019
Decision: 26^th August 2019

SENTENCING DECISION OF ATOA-SAAGA

The Charges.

1. You pleaded guilty to three charges. The charges are:
   1. Armed with a dangerous weapon namely a gun pursuant to Section 25 of the Police Offences Ordinance 1961. It carries a maximum penalty of 1 year.
   2. Possession of unlawful weapon namely a gun pursuant to Section 12(1)(2)(3) of the Arms Ordinance 1960. If convicted, it carries a maximum penalty of 5 years or a fine of 100 units or both.
   100. Threatening words pursuant to Section 4(g) of the Police Offences Ordinance 1961 namely, “Fai faalelei kou galuega, gei kei ua ou faga se isi” (Do your job properly or I will shoot someone) whereby a breach of peace may be occasioned It carries a maximum penalty of 3 months or 2 penalty units.

Summary of the offending

2. The Summary of facts was read out to you and you accepted all the paragraphs except for paragraph 6 and 7 of the Summary of facts. A disputed hearing of the Summary of facts was held and after hearing the evidence, I ruled in favor of the Prosecution and accepted paragraph 6 and 7 of the summary facts and some amendments to the Summary of facts.

Aggravating features of the offending:

3. You pulled out a gun and walked towards an unsuspecting citizen who was doing his job. It could have been any person or a member of the public who had angered you or annoyed you that day or any other day.
4. You overreacted to a simple instruction. The instruction was to protect your life and those at the Petrol station and living around the vicinity.
5. You kept a gun in a car that is used by your family.
6. The gun was unlicensed. You had no legal right to keep that gun in your car or in your possession.
7. Your six years old son was in the car. He would have witnessed you walking outside armed with a gun. As a father, you are teaching your son wrong, unjust and immoral values that are both unethical and illegal.
8. Your wife told you to stop yet you were consumed with anger and continued to walk outside with the gun. You put both your wife and son at risk when you held that gun because anything could have gone wrong.
9. The words you uttered were threatening but portrayed a coward whose strength was in the weapon that he held. You were walking towards a defenseless victim who had no protection against a gun. It is fortunate that you came to your senses and did not pursue him further other than uttering the threatening words.
10. According to the Victim Impact Report, the victim still harbors feeling of fear every time he sees you at the petrol station. No one should fear for his or her life at his place of work, at home or in public. I find it disconcerting that you have not apologized to the victim.
11. There is inconsistency in your evidence and what you have told the Probations Services of who you obtain the gun from, for what amount and for what purpose. Your claim that it is for the purpose of protecting you as a taxi driver is unjustified. Your wife testified that you ceased operating a taxi in March 2018. Furthermore, a gun is not an accessory that is permitted under the law for taxi drivers or for any drivers. I fail to find any valid reason why you should have a gun in your possession particularly an unlicensed gun. The Ministry of Police have initiated various campaigns in the past few years for the registration of guns yet you have not used that opportunity to register your gun.

Mitigating features of the offending

12. The victim slammed the side of the vehicle when you swore at him. Whilst it is an act of provocation it pales in comparison to your actions.

Mitigating features of you as an offender

13. You are a first offender.
14. You pleaded guilty at first instance.
15. Your parents speak highly of you as their eldest son and the person responsible for looking after them. They blame themselves for your current predicament and for not reprimanding you and talking to you more. They are getting on in years too and this matter has caused them great distress.
16. The mayor of the villages stipulates in his letter that you have never caused any trouble in your village. In his opinion, this is out of character.
17. Your pastor testifies of a quiet person who has never been known as a troublemaker.
18. Both the mayor and the pastor speculate that you might have been angry over a different matter totally unrelated. Irrespective of whatever issues you may have had prior to the incident, pulling out a gun and threatening someone on a bad day is not acceptable.

Discussion

19. Section 5 of the Sentencing Act 2016 stipulates that the purposes for which a court may sentence or otherwise deal with a defendant are....
    1. To hold the Defendant accountable for harm done to the victim and the community by offending
    2. To promote in the Defendant a sense of responsibility for an acknowledgement of, that harm;
    100. To provide for the interest of the victim of the offence;
    4. To denounce the conduct in which the defendant was involved
    5. To Deter the defendant or other persons from committing the same or similar offence;
20. Whilst there are numerous authorities on being armed with a dangerous weapon there are a few on being armed with a firearm and most of the matters include related charges of discharging of firearms and causing injuries.
21. In majority of these cases, the Court has imposed custodial sentences. The terms of imprisonment have varied from 3 months^[1], 4 months^[2], 6 months^[3]and 9 months^[4]. Three of these cases were in a public setting and there were more serious aggravating features including robbery and possession of narcotics.
22. In cases where non custodial sentences were imposed, the Court has imposed a supervision term^[5] and in other cases monetary fines.^[6] In respect of the decision to impose a sentence of supervision, Justice Clarke at para 16 stated that,

“Offenders must understand that any offending using firearms, particularly unlicensed firearms constitute a serious offence and a deterrent sentence must be imposed to reflect society’s rejection of the unlawful use of firearms...Deterrent sentences may be imposed in ways other than imprisonment.”

23. In cases where there is no discharge of firearms but the use of firearms to threaten victims, the Court has imposed both custodial^[7] and non custodial sentences^[8]. In the latter, the Court took into consideration the mitigating factors that the defendant was a first offender, he was deeply remorseful and that the victim had forgiven the defendant. In conclusion also, the Court considered in that particular matter, a sentence of supervision will reduce the likelihood of further offending by that Defendant.
24. In deciding the appropriate penalty to impose, I too have to look at the facts and weigh the aggravating features against the mitigating features. The most serious of these aggravating features is the fact that you were armed with a firearm in a public place and that there was no valid reason why you should be armed with a gun.
25. The victim is a petrol attendant. He could have been a shop keeper, a bartender or a person performing a service. You were a disgruntled customer. You could have reported the petrol attendant to his supervisor if he was rude and if he had acted inappropriately. Instead, you stopped the vehicle, took out a gun and walked towards him threatening to shoot him or anyone who is not providing a customer service that is to your satisfaction. That is clearly a behavior that is unacceptable and should not be condoned.
26. Prosecution has recommended that you pay a fine of $500.00 and in default, a 4 weeks imprisonment term. After weighing the aggravating features against the mitigating features, I consider it inappropriate to impose a monetary fine in your case.
27. This incident happened in a public place. Samoa is a small island nation. Citizens must be assured that they are safe and secure in any public place. We need not wait until a person discharges a firearm in public for the Court to impose a custodial sentence. We curb the problem now by imposing a custodial sentence as a deterrence for any person who is armed in public illegally and threatening a member of the public.

CONCLUSION

28. I hereby convict you to one month imprisonment for the charges of in possession of unlawful firearms and armed with a firearm.
29. In respect of the charge of threatening words, you are hereby convicted and discharged.
30. I hereby order the firearm confiscated and destroyed.

JUDGE ATOA-SAAGA

^[1] Police v Enelagi (2007) WSSC 95
^[2] Police v Siaosi [2014] WSSC 19
^[3] Police v Atoa[2010] WSSC 22, Police v Chong Nee (2007) WSSC 102, Police v Gabriel ( unreported decision 19^th May 2019)
^[4] Police v Vaili
^[5] Police v Fiapopo[2016] WSFVC 4
^[6] Police v Aiono (2007) WSSC 8 ( a fine of $2,500), Police v Faamasani ( unreported decision 4^th August 2016)
^[7] Police v Siaosi (supra) (4 months), Police v Enelagi (supra) (3 months)
^[8] Police v Fiapopo (supra)( supervision)