IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

LUPEMATASILA FAAMANU, MISA GAGA’E, LUPEMATASILA 
SAIPANI, NANAI SIAKI, and FILIPO FAASAVALU
all of Matautu, Falelatai.
Accused

Counsel:	P Chang and K Koria for prosecution
L T Malifa for accused

Sentence:	29 April 2009

SENTENCE BY SAPOLU CJ

The charges

1.	After a prolonged and protracted trial, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu were all found guilty of the charge of arson which carries a maximum penalty of 5 years imprisonment.

2.	The accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani were also found guilty of the charges of wilful obstruction of the police in the execution of their duties which carries a maximum penalty of one year imprisonment or a fine of $200, threatening the police with intent to intimidate them in the execution of their duties which carries the maximum penalty of one year imprisonment or a fine of $200, and throwing objects to the danger of any person which carries a maximum penalty of one year imprisonment.

3.	All of the accused are now appearing for sentence on the charges on which they have been convicted.

Background

4.	The offences committed in this case followed a decision of the Land and Titles Court which overturned a banishment order imposed by the Alii and Faipule of Matautu, Falelatai, against Misa Pita, a matai of the village, and his family. The effect of the Court’s decision was to allow Misa Pita and his family to return to the village.

5.	The decision of the Lands and Titles Court made the village angry so that when they returned to Matautu, Falelatai, a meeting of the village was immediately summoned. In defiance of the decision of the Lands and Titles Court, the Alii and Faipule issued another banishment order against Misa Pita and his family. The accused Misa Gaga’e was instructed to deliver the banishment order to the family of Misa Pita. Accompanying Misa Gaga’e were the accused Lupematasila Faamanu who had been the spokesman for the village in the Lands and Titles Court proceedings, the accused Lupematasila Saipani and Nanai Siaki as well as other matais of the village and many taulele’a (untitled men). This must have been about 2pm in the afternoon. The village was obviously determined to defy the Court’s decision. 

6.	Later on the same afternoon, members of the family of Misa Pita arrived from Apia. They must have heard about the banishment order issued by the village from the woman who was at their family house because when the banishment order was delivered to their family, there was only a woman at their family house at Matautu, Falelatai. This house is the maota (customary residence) of Anae Taeoalii (Anae) the late father of Misa Pita. At that time, the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani, and another matai of the village had come to Apia. 

7.	According to the evidence presented at the trial, the members of the family of Misa Pita were armed with firearms when they arrived at Falelatai. This created a very tense and dangerous situation between the village and the members of Misa Pita’s family. 

8.	Fortunately, a team of police officers soon arrived. The police negotiated with the members of Misa Pita’s family who then agreed to leave the village and return to Apia. The police also negotiated with the senior matais (fa’aaloaloga) of the village to whom they expressed their concern that the house of Anae, the late father of Misa Pita, might be set on fire by the village. The senior matais of the village assured the police that nothing will happen and that the village will look after the house of Anae. The accused Nanai Siaki was present at that meeting. The police, given the assurance, then returned. 

9.	The village then instructed two matais to look after the house of Anae. A "manu" was also raised to inform the village that the matter has been settled between the village and the police and that anyone who burns Anae’s house or creates any trouble will be dealt with by the village. That must have been after 6pm in the evening. 

10.	At about 8pm, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and another matai of the village who had come to Apia, arrived back in the village. They had been drinking a dozen of large Vailima beers on their way back to the village. They then went to a shop in the village where, according to the evidence of the accused Lupematasila Saipani, they bought another two dozens of large Vailima beers. They were soon joined at the shop by the accused Nanai Siaki. The accused Filipo Faasavalu, a taule’ale’a, also joined in at about the same time. They were all drinking. Two other tauleleas who had been drinking at the shop when the accused arrived, also joined in and drank together with the accused. 

11.	The accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki then made remarks about burning the house of Anae and they all agreed to go and burn Anae’s house. Lupematasila Faamanu then bought a box with twelve large bottles of kerosene and off they went towards the house of Anae. Each of the accused and the two taulele’a who had joined in were carrying bottles of kerosene. 

12.	On their way to the house of Anae, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki instructed the two taulele’a I have mentioned to go first and start setting fire to Anae’s house. Fortunately, for these taulele’a, when they arrived at Anae’s house, they were stopped and sent away by one of the matais who had been instructed by the village to keep watch over the house of Anae. The house of that matai is very close to where Anae’s house was. 

13.	The only reasonable and realistic conclusion to be drawn from the evidence is that the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu then set fire to the house of Anae using kerosene bottles. One of the prosecution witnesses, Ailao Liu, testified that he actually saw Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki litting bottles of kerosene and throwing them into the house as smoke was coming out of the house and the fire had already started.

14.	Not only did the accused set fire to the house of Anae, but they also hindered and tried to stop those people who rushed on to the scene to try and put out the fire. For instance, one prosecution witness testified that the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki tried to assault him and other people who were trying to put out the fire and told them they had no business to put out the fire. Another prosecution witness testified that when he called out to put out the fire Misa Gaga’e told him to go to the front and Lupematasila Faamanu then came and led him to the front. Another prosecution witness testified that as he was inside the house trying to put out the fire, the accused Lupematasila Saipani punched him and pulled him out of the house. Another prosecution witness testified that as he was filling a barrel with water to douse the flames, the accused Filipo Faasavalu punched him and then fought with him. 

15.	Later on when the police, who had been informed about the fire, arrived with the fire truck, the accused Misa Gaga’e instructed one of the witnesses for the prosecution to go and stop the police vehicle. Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani also uttered swear and threatening words at the police and threw bottles at the police vehicles and fire truck obviously to prevent the police and the fire truck from getting to the fire. 

Damage to property

16.	 The house of Anae, which was a beautiful European style house, was completely destroyed by the fire together with all the furnitures that were in it. The estimated valuation given for the house is about $516,000 and for the furnitures it is about $438,000. Making allowance for any possible error in these estimates, this was still quite an expensive house and so were the furnitures. 

17.	As a result of the objects which were thrown, one of the police vehicles was damaged and the windscreen of the fire truck was cracked. 

Risk to nearby houses

18.	It appears from the evidence that the houses of the two matais who were instructed by the village to keep watch over the house of Anae are both very close to where Anae’s house was. Both those houses were at serious risk of being affected by the fire. 

The accused

19.	Except for the accused Filipo Faasavalu who is not a matai, the other four accused hold high ranking matai titles in the village of Matautu, Falelatai. Furthermore, except for the accused Filipo Faasavalu, the other four accused have been banished from the village since these offences were committed on 15 July 2005. 

20.	The accused were also four years younger than they are now when these offences were committed in 2005. In particular, the accused Filipo Faasavalu who is now 22 years old was 18 years at the time these offences were committed. 

21.	All the accused, especially Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani, were under the influence of alcohol when these offences were committed. 

(a)	Lupematasila Faamanu

22.	The accused Lupematasila Faamanu is now 49 years old and married. His pre-sentence report shows that he had a good level of education and graduated with a diploma in agriculture from the University of the South Pacific at Alafua. He has also held senior positions in business, in non-government organizations, associations, and in government service in American Samoa. He has also attended a number of overseas conferences, meetings and workshops. He also has good oratorical and cultural skills and knowledge. He presently operates a consultancy on customary land and titles matters.

23.	The pre-sentence report on this accused together with the attached testimonials also show that he is a reliable and dependable person in his family, village and church. He is also a person of good character and is a first offender. 

(b)	Misa Gaga’e

24.	The accused Misa Gaga’e is now 51 years old. He is married with eight children. He did not attain a high level of education because of financial constraints faced by his family.

25.	At the time this accused was banished from the village, he was operating a shop in the village. He is hardworking and always strives for good developments in his family and village. 

26.	Apart from a previous conviction for assault in 1977, the pre-sentence report and testimonials on this accused show that he is reliable and dependable and is a person of good character. The pre-sentence report also shows that he has a health problem. 

(c)	Lupematasila Saipani

27.	The accused Lupematasila Saipani is now 57 years old. He is married with five children. He did not attain a high level of education due to financial constraints on his family. He has always been a planter all his life and his family depends on his plantation. 

28.	The pre-sentence report together with the testimonials on this accused also show that he is a person of good character and is a first offender. 

(d)	Nanai Siaki

29.	The accused Nanai Siaki is now 44 years old. He is married with eight children. He attained a reasonable level of education and qualified as a school teacher from the Teachers Training College in 1985. He taught for about eight years. He has now turned to fishing and plantation work for a living for his family. 

30.	The pre-sentence report and testimonial on this accused show that he is honest and is a person of good character. He is also a first offender. 

(e)	Filipo Faasavalu

31.	The accused Filipo Faasavalu is now 22 years old. He is married with five children. He finished school at Year 10 to assist his family. At the time of the offence for with he has been found guilty, he was employed as a baker. He is now a fisherman. 

32.	The pre-sentence report and testimonials on this accused show that he is a dependable member of his church, his family and the aumaga of his village. He is the only accused that was not banished from his village. 

33.	This accused is also a first offender.

Aggravating Factors

34.	There are several aggravating factors in the case in relation to the charge of arson. 

(a)	The concerted actions by the accused in setting fire to the maota of Anae were premeditated and deliberate. 

(b)	The accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki who are high ranking matais of the village, by their words and actions, also involved the accused Filipo Faasavalu and tried to involve two other taulele’a to assist them in setting fire to the maota of Anae. Fortunately for those two other taulele’a, they were stopped and sent away before they did anything to set fire to the maota of Anae. 

(c)	The accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki also hindered and tried to assault people of the village who rushed onto the scene to try and put out the fire and even told them they had no business to put out the fire. In fact Lupematasila Saipani punched one of those people and pulled him out of the burning house whilst Filipo Faasavalu punched and fought with another. 

(d)	As a result of the accused’s actions, the maota of Anae was completely burnt down, together with all the furnitures that were in it. The estimated values of the maota that was burnt down and the furnitures are quite high. 

(e)	The actions by the accused exposed two nearby houses to the real and dangerous risk of being affected by the fire and the accused must have been aware of that risk. 

(f)	The accused also acted in contempt and in defiance of the decision by the Land and Titles Court to allow Misa Pita and his family to return to Matautu, Falelatai. In fact the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki seemed to have been motivated in their actions by their profound anger against the decision of the Land and Titles Court and Misa Pita and his family. 

(g)	The accused must also have been aware of the assurance given by senior matais (fa’aaloaloga) of the village to the police that the village will protect the maota of Anae and nothing will happen. Nanai Siaki was present when that assurance was given to the police. The accused must also have been aware of the "manu" by the village that anyone who burns the maota of Anae will be dealt with by the village. However, the accused still went ahead and set fire to the maota of Anae. As a result, they were banished by the village. 

35.	There are also aggravating factors in relation to the charges of obstructing the police in the execution of their duties, threatening the police with intent to intimidate them in the execution of their duties, and throwing objects to the danger of any person:

(a)	The accused Misa Gaga’e tried to involve another taule’ale’a in obstructing the police by instructing him to go and stop the police vehicle. 

(b)	The actions by the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani as well as other people prevented the police and the fire truck from getting to the fire and provide any assistance. 

(c)	The actions by the said three accused in throwing objects at the police also resulted in one police vehicle and the windscreen of the fire truck being damaged. 

(d)	The same actions were also in contempt of the decision of the Land and Titles Court which allowed Misa Pita and his family to return to Matautu, Falelatai. 

Mitigating factors

36.	The mitigating factors in this case are:

(a)	The fact that all the accused are first offenders. Even though the accused Misa Gaga’e has a previous conviction for assault in 1977, that was thirty years ago. I will treat the accused Misa Gaga’e as a first offender for the purposes of his case.

(b)	The other personal circumstances of the accused as set out in their respective pre-sentence reports and testimonials.

(c)	In respect of the accused Filipo Faasavalu who was 18 years old at the time of the arson, his relatively young age at that time is also a mitigating factor in his favour. 

(d)	It is also clear that even though Filipo Faasavalu was involved in setting fire to the maota of Anae, he was not a ringleader or instigator of the offending that took place. The involvement of Filipo Faasavalu was procured by the other accused who instigated the commission of the present offending. Those other accused are high ranking matais of the village whereas Filipo Faasavalu is a taule’ale’a. 

(e)	The fact that, except for Filipo Faasavalu, the other four accused were banished by the village in 2005 soon after this incident and are still banished up to now means that those accused have already suffered punishment and that is also a mitigating factor in their favour. 

Similar previous cases

37.	For the purposes of sentencing, it is a relevant consideration to refer to sentences passed by the Court in similar previous cases. However, it is a cardinal principle of criminal sentencing that the sentence in a particular case must depend on the circumstances of that case. No two cases have exactly the same circumstances so that consistency in sentencing approach will not necessarily lead to consistency in results: Taoai v Police [2002] WSSCS; Seuoti v Police [2006] WSSC 48. 

38.	Counsel for the accused in his plea in mitigation referred to Sovita v Police [2000] WSSC 2 which was concerned with an appeal from the District Court on various charges including arson. In that case heavy fines were imposed on the accused. However, the circumstances which pertained to that case are quite different from the circumstances of the present case. So Sovita v Police [2000] WSSC 2 is distinguishable from the present case on the facts. 

The Decision

(a)	The charge of arson

39.	This is a very serious case of arson involving substantial damage and loss of property. The accused, acting in concert and with premeditation, deliberately set out to burn down the maota of Anae using bottles of kerosene. The accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki were clearly the ringleaders and instigators of this offending. They tried to involve three of the taulele’a of the village in the execution of their common design but two of those taulele’a got away in the nick of time because of the intervention of another matai of the village. 

40.	When the maota of Anae was on fire and other people of the village rushed to the scene to try and put out the fire, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki tried to assault those people, or some of them, and told them it was none of their business to put out the fire. Lupematasila Saipani even punched one of those people and pulled him out of the burning house whilst Filipo Faasavalu punched and fought with another. 

41.	The actions by the accused were also contemptuous of the decision of the Land and Titles Court and in disobedience of the "manu" by the village that no one was to set fire to the maota of Anae. The accused’s actions also exposed nearby houses to the real risk of being burnt and the accused must have been aware of that risk but nonetheless set fire to the maota of Anae. 

42.	The arson in this case calls for personal and general deterrence, that is to say, a sentence that will deter not only the accused who were the instigators of this arson but also any other member of the community who may be disposed to commit this type offending. 

43.	Having regard to the degree of criminality on the part of each accused involved in the arson that was committed, I will take 3 years as the starting point for sentence in respect of the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki. I will then deduct months for the mitigating factors relating to each of those accused. That leaves 2 years and 3 months.

44.	I have not overlooked the fact that of the said four accused, the personal circumstances of Lupematasila Faamanu are the most impressive. However, it appears from the evidence that he was the primary ringleader. He was also the accused who bought the bottles of kerosene that were used in the arson. 

45.	In respect of the accused Filipo Faasavalu, he had the lowest level of responsibility for the arson that was committed. He was more or less drawn in as an 18 year old taule’ale’a by the other accused to what was done. I have decided not to impose a custodial sentence in respect of this accused. 

46.	Filipo Faasavalu is sentenced to 2 years probation on the condition that he performs 350 hours of community service as directed by the probation service. 

47.	The accused Nanai Siaki who has been found guilty only on the charge of arson is sentenced to 2 years and 3 months imprisonment. 

(b) 	The charges of obstructing the police in the execution of their duties, threatening the police with intent to intimidate them in the execution of their duties, and throwing objects to the danger of any person

48.	Only Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani were found guilty of these three offences.

49.	For the purpose of passing sentence, I will apply the totality principle to these three offences, that is to say, I will consider the gravity of the total offending and then set a head sentence and make the other sentences concurrent with the head sentence.

50.	I will set a head sentence of 4 months imprisonment for the offence of throwing objects to the danger of any person and one month imprisonment for each of the other two offences. All these sentences are to be concurrent.

51.	I will deduct one month for the mitigating factors and that leaves 3 months. That sentence of 3 months imprisonment is to be cumulative on the sentence of 2 years and 3 months imprisonment for the charge of arson.

Conclusions

52.	(a)	The accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani are each sentenced to 2 years and 6 months imprisonment.

(b)	The accused Nanai Siaki is sentenced to 2 years and 3 months imprisonment.

(c)	The accused Filipo Faasavalu is sentenced to 2 years probation on the condition that he is to perform 350 hours of community service as directed by the probation service.

CHIEF JUSTICE

Solicitors
Attorney General, Apia, for prosecution
Sogi Law for accused