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Police v Lopa [2008] WSSC 65 (28 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

NANAI LOPA
of Matautu Falelatai, matai
Accused

Counsel: G Patu for prosecution
F Vaai-Hoglund for accused

Sentence: 28 August 2008

SENTENCE BY SAPOLU CJ

The charges

1. The accused was jointly charged in the District Court with six co-accused with one count of arson under s.112 (a) of the Crimes Ordinance 1961 which carries a maximum penalty of 5 years imprisonment, one count of wilful obstruction of a constable in the execution of his duty under s.10 (1) (a) of the Police Offences Ordinance 1961 which carries a maximum penalty of imprisonment for a term not exceeding one year or a fine of $200, and one count of throwing any stone or other thing to the danger of any person under s.26 (1) of the Police Offences Ordinance 1961 which carries a maximum penalty of imprisonment for a term not exceeding one year.
   
2. The seven accused involved in this matter pleaded not guilty to all three counts in the District Court. However, both District Court Judges had to disqualify themselves from presiding at the trial due to conflict of interest in one way or another. The case was therefore transferred to this Court for trial.
   
3. At the commencement of the trial on 12 August 2008, the charge of arson against the present accused was withdrawn by the prosecution and I dismissed that charge. The accused through his counsel then vacated his plea of not guilty to the other two counts and substituted a guilty plea. The matter was then adjourned for a pre-sentence report. The accused is now appearing for sentence.
   

The offending

1. The accused was born on 7 September 1936. So he is almost 72 years of age. He is a matai from the village of Matautu, Falelatai.
   
2. As it appears from the summary of facts admitted by the accused, on Friday 15 July 2005, the village of Matautu, Falelatai, (the village), due to a decision of the Land and Titles Court, banished the family of Misa Pita Anae (the family) from Falelatai. The family was instructed to leave the village by 4 pm.
   
3. The family sought assistance from the police for their safety and a team of police officers went to the village to ensure that the family leaves the village safely. The police assisted in escorting the family out of the village for their own safety as well as to preserve the peace within the village.
   
4. While the police were escorting the family’s vehicle out of the village, they came by a road block by a number of matais of the village. One of these matais was the present accused.
   
5. The road block obstructed the police officers from carrying out their duty of escorting the family out of the village safely. After convincing the people who were blocking the road to let the police and the family leave the village, the police were finally able to escort the family out of the village safely.
   
6. However, later the same night at about 11:30 pm, the police received a call that the house of the family was burning. A team of police officers went to the village again. Accompanying the police were fire officers and a fire truck.
   
7. When the police and the fire officers arrived at the village some of the village matais blocked the police vehicles and fire truck from reaching the burning house and assist in putting out the fire. The accused was one of those matais. The accused also said to the police officers that they should leave while nothing has happened to them.
   
8. Bottles and stones were thrown at the police vehicles and fire truck. The accused was one of the people who threw bottles at the police vehicles. To prevent serious damage to the police vehicles and the fire truck as well as injury to any police or fire officer, the police decided to turn around and drive out of the village.
   
9. The two police vehicles involved and the fire truck sustained damages. The most serious damage was to the fire truck whose windscreen was cracked.
   

The accused

10. The pre-sentence report shows that the accused is close to 72 years of age and is a matai of the village of Matautu, Falelatai. He is an important and respected matai of his village. He is also a lay preacher.
    
11. The accused is also a first offender. The pre-sentence report together with the attached testimonials from the pastor and pulenuu of the accused’s village show that the accused had been a person of good character prior to the commission of these offences. Counsel for the accused also told the Court that the accused also is extremely sorry for what he did.
    
12. As a consequence of these offences and what happened to the house that was burnt, the accused was banished from the village in July 2005 soon after the offences were committed. Whilst this shows that the accused has already been punished for his actions, it also suggests that the village council did not authorise or condone the actions by the accused.
    

Aggravating features

13. It is clear that the motive of the accused in obstructing the police from escorting members of the family of Misa Pita Anae from leaving the village was to cause trouble to the family. There can be no other reasonable explanation for such obstruction.
    
14. It is also clear that the motive of the accused in stopping the police and fire officers from getting to the burning house was to make sure that the fire would not be put out so that the house would be completely burnt down. This must have been the same motive which accompanied the throwing of bottles and stones at the police vehicles and fire truck.
    
15. The police vehicles also sustained some damage. The most serious damage was to the fire truck whose windscreen was cracked.
    
16. The other disturbing feature of this case is that it arose from a decision of the Land and Titles Court. There is clear suggestion from the pre-sentence report that the accused was displeased with the decision of the Court for Misa Pita Anae to remain in the village. In other words, the accused’s actions were a reaction against the decision of the Land and Titles Court.
    

Mitigating features

17. The mitigating features are: (a) the accused’s plea of guilty though a delayed one, (b) the fact that the accused is a first offender, (c) the old age of the accused, and (d) the fact that the accused was banished from his village in 2005 and still remains banished from his village up to now. Counsel for the accused also told the Court that the accused is extremely sorry for what he did.
    
18. It also appears from the pre-sentence report that the accused suffers from asthma and had breathing difficulties at the time he was interviewed by the probation service.
    

The decision

19. I consider this case to be a very serious one. The actions by the accused were a direct and head on challenge to the rule of law in a very serious way. As it appears from the pre-sentence report, the reason why the accused did what he did was because he was displeased with a decision of the Land and Titles Court for Misa Pita Anae to remain in the village.
    
20. When the police came to the village to keep the peace and escort the family of Misa Pita Anae out of the village, the accused with others also obstructed the police, obviously to cause trouble to members of the family of Misa Pita Anae. Later on when the house of the family of Misa Pita Anae was on fire and the police and fire brigade came to assist in putting out the fire, the accused and others stopped the police vehicles and fire truck and threw bottles and stones causing damage to the police vehicles and fire truck. As a result, the police vehicles and fire truck could not get to the burning house.
    
21. Given the age of the accused and the fact that he is a matai, one would have expected that he would have the maturity and sense of responsibility to act in a responsible way that befits his old age and position as a matai in the village.
    
22. The accused must learn to obey the rule of law. The alternative to the rule of law would be a lawless society where might means right and chaos and havoc prevail.
    
23. I have been giving serious consideration to imposing a custodial sentence on the accused. But after carefully weighing up the aggravating features against the mitigating features, I have decided to impose a monetary fine for each of the two offences. I am also mindful that at his present age, the accused is not likely to offend again.
    
24. For the charge of obstructing the police in the execution of their duties, I have decided to fine the accused $200 which is the maximum fine for this offence. For the charge of throwing objects to the danger of any person the accused is also fined $200. The total fine is therefore $400.
    

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
Vaai Law firm, Apia, for accused