SUPREME COURT OF SAMOA
Police v Faapito [2013] WSSC 66

Case name:  Police v Faapito
Citation: [2013] WSSC 66
Decision date: 9 August 2013
Parties: 
POLICE (prosecution) and AUVELE SENETENARI FAAPITO male of Saanapu and Faleu, Manono-uta (accused)
Hearing date(s): 
File number(s):  S1134/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
F E Niumata and O Tagaloa for prosecution
Accused in person 
Catchwords: 
Sentence, causing intentional damage to property, wilful damage, compulsion, aggravating and mitigating factors
Words and phrases:
Necessity, duress of circumstances, duress by threats
Legislation cited:
Crimes Act 2013
Crimes Ordinance 1961
Crimes Act 1961 [NZ]
Cases cited:
Police v Palemene Tovia (2013) (SC Nos. S949/13, S950/13; sentence
R v Hutchinson [2003] NZ CA 143 
Hocking v Police [2012] NZ HC 3192.
Attorney-General v Leeson [2001] NZ HC 1053, 
R v Neho [2009] NZ CA 299, 
Kapi v Ministry of Transport [1991] 8 CR NZ 48
Stehlin v Police [1993] WSCA 5
Perka v Queen [1984] 13 DLR (4th) 
Southwark London Borough Council v Williams [1972] 2 WLR 467
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1134/13

BETWEEN:

P  O  L  I  C  E
Prosecution

A  N  D

AUVELE SENETENARI FAAPITO male of Saanapu and Faleu, Manono-uta.
Accused

Counsel: F E Niumata and O Tagaloa for prosecution
Accused in person

Sentence:9 August 2013   

S  E  N  T  E  N  C  E
The charge
1.	The accused Auvele Senetenari Faapito appears for sentence on the charge of causing intentional damage to property under s.184 (2) (a) of the Crimes Act 2013 which carries a maximum penalty of seven (7) years imprisonment.  This offence supersedes the offence of ‘willful damage’ provided under s.113 of the now repealed Crimes Ordinance 1961.
2.	Section  184 (2) (a) of the Crimes Act 2013 provides:
“A person is liable to imprisonment for a term of not exceeding seven (7) years who:
“(a)  intentionally or recklessly, destroys or damage any property”.
3.	To the charge the accused pleaded guilty at the earliest opportunity.
The offending 
4.	According to the prosecution’s statement of facts, the accused and the complainant are brothers. The complainant was banished by the village council of Faleu at Manono-uta due to a dispute over family land he had used.  The village council also ordered that the house of the complainant be dismantled and demolished.
5.	During the time the complainant was banished from the village, he had an agreement with his father and the accused that the accused would not take down his house.  However, on Wednesday 10 April 2013 at around 11:40am, the complainant received a call from his father that his house would be demolished pursuant to the order from the village council.  The complainant then called the accused not to demolish his house.  However, the accused insisted that his house should be demolished pursuant to the order of the village council.  The house of the complainant was accordingly dismantled by the accused and other family members.
6.	On Friday 14 June 2013, the accused was apprehended by the police and taken to the Apia police station where he was cautioned and interviewed.
7.	The accused, when asked by the Court, said his brother the complainant had been banished from their village of Faleu at Manono-uta because of repeated disobedience of village rules.  This was the fourth time the complainant disobeyed the village rules, so the village council decided to banish him from the village.  It is not clear what was involved in the complainant’s previous disobedience of village rules or even the disobedience of village rules which had led to the present banishment except that it arose from a dispute over family land.
8.	In the pre-sentence report, the accused told the probation service that when the village council decided to banish the complainant from the village, it also ordered the complainant to take all his belongings with him including his house.  However, the complainant left without removing his house.  The village council then ordered the family of the accused and the complainant to dismantle and remove the complainant’s house.
9.	The matai of the family of the accused and the complainant also instructed the father of the accused and the complainant to obey the order of the village council.  The accused and some members of his family then dismantled the complainant’s house. It is not clear what kind of a house was the complainant’s house.
10.	The accused also told the probation service that the order of the village council had to be obeyed otherwise his parents and their family would also have been banished.  So he was ‘like a meat in a sandwich and in a no win situation’. He had no realistic choice but to obey the decision of the village council in order to protect his parents and family  The house of his brother was therefore dismantled. 
The accused
11.	The accused is a 44 year old male of Faleu at Manono-uta and Saanapu.  He is married and has eight children.  He resides with his family at Faleu, Manono-uta.  The complainant is his younger brother.
12.	As it appears from the pre-sentence report, the accused finished school at Year 13.  He then took a course in electronics at the Polytechnic.  He was later employed at the Electric Power Corporation.  In 1991 he started his own electrical business.  This business still helps to cater for his children’s school fees and his other family obligations.  He does not smoke or consume alcohol.
13.	The testimonies given by the accused’s father and sister to the probation service show that the accused is a humble person and a supportive, dependable and trustworthy member of their family.  The oral testimonial from the pulenu’u of the accused’s village shows that the accused is a hardworking, supportive and caring person not only in his family but also in the village.  The pulenu’u also told the probation service that it was the decision of the village council to banish the complainant and remove his belongings that has led to this case.  The written testimonial from the pastor of the accused’s church shows the accused to be a church-going, hardworking, helpful and good person.
14.	At the funeral of his mother on 19 July 2013 which was also attended by the complainant, the accused tried twice to reconcile with the complainant but the latter refused.
15.	The accused is also a first offender.  
The complainant
16.	The complainant is 40 years old.  He is the accused’s younger brother.  He was banished from the village because of a dispute over family land. He now lives at Satuimalufilufi.  However, the accused told the Court that this was the fourth time his brother had disobeyed village rules and so the village council decided to banish him and remove his belongings.
The aggravating and mitigating factors
17.	The aggravating factors of this offending are the dismantling of the complainant’s house and the fact that it was a dwelling house.  The significant mitigating factor of the offending was that the accused seemed to have had no choice but to dismantle his brother’s house as decided by the village council otherwise the accused, his parents, and their family would also be banished.  Thus, the accused had no realistic choice but to do what he did with the assistance of some of the other members of his family.  I will elaborate on this point when I discuss the defence of necessity or duress of circumstances.
18.	There is no aggravating factor relating to the accused as offender but there are several mitigating factors personal to the accused.  These are:  (a) he is a first offender and a person of good character and reputation prior to his commission of this offence, (b) he has tried to reconcile with the complainant even though it was declined by the complainant, and (c) the accused’s guilty plea at the earliest opportunity.
Necessity or duress of circumstances
19.	What the accused has said to the probation service that he had to obey the order of the village counsel to dismantle the house of his brother otherwise he, his parents, and their family would also be banished from the village  touches on an important and complex legal issue. It is an issue that has arisen before in the District Court on the facts of similar cases where the aumaga or untitled  men of a village act on  orders or directions from a village council to carry out an act which contravenes the law and those who commit the unlawful act or acts are later prosecuted. What is often raised in such a prosecution is that the offenders had to obey the village council either because that is custom or if they did not obey they would be punished by the village council. In legal terms, the issue arises in the context of the common law  defence of necessity or duress of circumstances.
20.	As explained by Heath J in delivering the judgment of the New Zealand Court of Appeal in   R v Hutchinson [2003] NZ CA 143 at para [38] and [39], the common law defence of necessity consists of two limbs. The first limb involves what is now known as duress by threats and the second limb involves what is now known as ‘duress of circumstances’. The first limb of the common law defence of necessity was held by the New Zealand Court of Appeal in Kapi v Ministry of Transport [1991] 8 CR NZ 48 to be no longer applicable in New Zealand as it was inconsistent with the defence of compulsion under s.24 of the Crimes Act 1961 [NZ].
21.	Section 24 of the Crimes Act 1961 (NZ) is similar in terms to s.14 of our new Crimes Act 2013 which provides for the defence of compulsion. It states:
“ (1) Except in relation to the offences listed in subsection (2), a person who commits an offence under compulsion arising from threats of immediate death or serious bodily harm from a person who is present whom the offence is committed is not criminally responsible if he or she:
(a)	believes that the threat will be carried out; and
(b)	is not a party to any association or conspiracy from which which the compulsion arises or was a forceable consequence”.
22.	Section 24(2) of the Act then sets out the offences to which the defence of compulsion does not apply. This is similar to s.14(2) of our Crimes Act 2013. The offence of causing intentional damage to property for which the accused is appearing for sentence is not one of the offences set out in s.14(2). The defence of compulsion or duress by threats would therefore apply to the offence of intentional damage to property. However, as compulsion or duress by threats would only arise where there is a ‘threat of immediate death or serious bodily harm from a person who is present when the offence is committed’, it would not apply to the facts of this case.
23.	That brings me to the second limb of the common law defence of necessity which is ‘duress of circumstances’. The common law defence of duress of circumstances is, in my opinion, preserved under s.11 of the 2013 Act which preserves all rules and principle of the common law as are consistent with the provisions of the Act, any other enactment, and the customs and usages of the Samoan people.
24.	Even though I have not been able to find any definitive judicial statement which has accepted that duress of circumstances is a common law defence which exists in New Zealand, it appears from the discussion of the defence in the New Zealand cases that New Zealand is moving towards acceptance of such a defence : see for example, R v Hutchinson [2003] NZ CA 143, R v Neho [2009] NZ CA 299, Attorney-General v Leeson [2001] NZ HC 1053, Hocking v Police [2012] NZ HC 3192.
25.	The elements of the defence of duress of circumstances were summarised in R v Hucthinson [2003] NZ CA 143 where Heath J said at para [34] :
“ (1) In Kapi v Ministry of Transport [1991] 8 CR NZ 49, 57,  this Court identified three elements of the defence of duress of circumstances. Those elements can be summarised as follows:
(a)	A genuine belief, formed on reasonable grounds, of imminent peril of death or serious injury.
(b)	Circumstances in which the accused has no realistic choice but to break the law.
(c)	A breach of the law proportionate to the peril involved.
An unstated, but in our view necessarily implicit, additional element is the need to establish a nexus between the imminent peril of death or serious injury and the choice to respond to the threat by unlawful means.”
26.	In England, the effect of the English cases on the defence of duress of circumstances was summarised in R v Martin [1989] A11 ER 652, 653, as follows:
“The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or other. Arising thus it is conveniently called ‘duress of circumstances’.
Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury who should be directed to determine these two questions : first, was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, showing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both questions was Yes, then the jury would acquit; the defence of necessity would have been established”.
27.	There are several other English cases on the defence of necessity by duress of circumstances. But I need not refer to them for present purposes. What is clear is that on both the New Zealand and the English formulations of the defence of necessity by duress of circumstances, a threat of death or serious bodily injury to the accused is an essential requirement. That cannot be said of this case because the threat to the accused was not one of death or serious bodily injury but was one of banishment from the village if the order of the village council to dismantle the house of the accused’s brother was not obeyed. Duress of circumstances would therefore not apply to this case.
28.	In Canada a general defence of necessity was recgonised in Perka v Queen [1984] 13 DLR (4th) 1. That case was discussed by our Court of Appeal in  Stehlin v Police [1993] WSCA 5 where Cooke P in delivering the judgment of the Court said:
“ The lead authority in common law jurisdiction on the defence of necessity is now probably the judgment of Dickson J in the Supreme Court of Canada in Perka v R [1984] 13 DLR (4th) 1  and we extract a few phrases from Dickson J’s reasons, as these  convey the gist of the defence and the principles that lie behind it. Dickson J says, for example, that where a defence of necessity is available, it is paramount over other laws, relieving obedience from the letter of the law. If it does exist, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.
Again: That rationale as I have indicated is the recognition that it is inappropriate to punish actions which are normatively involuntary.  
And later he poses the test : ‘whether the wrongful act was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice.
Finally, he says : ‘ normal human instincts cry out for action and make a counsel of patience unreasonable.
That being the flavour of the defence with this emphasis on matters of urgency or emergency, we cannot accept that deliberately cultivating cannabis over a substantial period, perhaps over a period of years, could  possibly be said to fall within it in any circumstances we can visualise.”
29.	I should also refer to the caution regarding the availability of the defence of necessity sounded by Edmund Davies L J in the decision of the English Court of Appeal in Southwark London Borough Council v Williams [1972] 2 WLR 467, 474-475. His Lordship said:
“But and how far is the plea of necessity available to one who is prima facie guilty of [an offence]?
Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permit these remedies to be resorted to only in very special circumstances. The reason for this circumspection is clear, necessity can very easily become simply a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril”.  (emphasis mine).
30.	On the facts of this case, I am of the opinion that the Canadian formulation of the defence of necessity is not available. The situation in this case was not one of urgency or emergency which involved a clear and imminent peril that normal human instincts cry out for the accused and other members of his family to dismantle and take down the house of the complainant. There was also no threat of imminent or immediate death or bodily harm.
31.	It is common that in accordance with custom, the people of a village, and often its aumaga, must obey decisions or orders of the village council. The execution of such decisions or orders may result in breaking the law as it has happened in this case. If the defence of necessity or duress of circumstances is to be readily available in such a situation, it may convey the impression to the aumaga of a village that they may break the law with impunity when obeying an order of the village council on the ground that they could be punished by the village council if they did not do so. The law cannot allow or tolerate such a situation unless it is a true case of duress of circumstances recognised by the law.
32.	Be that as it may, for sentencing purposes the conduct of the accused in the circumstances of this case is a mitigating factor relating to the offending. I can understand the reason for the decision of the village council to banish the complainant. The complainant had repeatedly disobeyed village rules which are necessary for order and stability within the village. I can also understand how the accused felt that if he did not obey the village council, his parents and family could themselves be banished.
The decision 
33.	As I have decided to impose a non-custodial sentence, the starting point for sentence approach would not be appropriate in this case:  Police v Palemene Tovia (2013) (SC Nos. S949/13, S950/13; sentence delivered on 5 August 2013), para 16, and the authorities cited therein.
34.	Having regard to the aggravating and mitigating factors relating to the offending and the accused as offender, I have decided to impose a monetary fine.  I am also of the opinion that this is an appropriate case for the Court to show some degree mercy.
35.	The accused is convicted and fined $450.

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution