SUPREME COURT OF SAMOA
Police v Su’a [2014] WSSC 80

Case name: 	Police v Su’a	
		
Citation: 	[2014] WSSC 80	
		
Decision date: 	24 December 2014	
		
Parties: 	Police v Lokeni Su’a	
		
Hearing date(s): 	13 November 2014	
		
File number(s): 	S2044/14-S2046/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Sapolu CJ	
		
On appeal from:		
		
Order:	Discharged without conviction and ordered to pay $500 costs to the prosecution within 14 days	
		
Representation: 	R Titi and B Faatifi-Lo Tam for prosecution
C S Vaai for accused

Catchwords: 	intentionally damaging property - threat to kill - maximum penalty - discharge without conviction - 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013
Criminal Procedure Act 1972
Police Offences Ordinance 1961	
		
Cases cited:	Pale v Attorney General [2010] WSSC 122 
Police v Papalii [2011] WSSC 132	
		
Summary of decision:		
Intentionally damaging property – threat to kill – maximum penalty – discharge without conviction – used threatening words – breach of the peace – bestowal of the title – conferment of the title – culturally insensitive – highly provocative –keeping the peace – guilty plea –pre-mediation - custodial sentence – unblemished career – ordered cost to be paid to the prosecution. 

The accused Lokeni Su’a is charged with intentionally causing damage to property, one charge of verbally making threat to kill and using threatening words. The accused pleaded not guilty but was found guilty at trial. The complainant is a relative of the accused. The dispute between parties arose when the complainant entered the house occupied by the accused and his mother and conducted a ceremony for the bestowal of the title Aiono. This act was seen by the accused as culturally insensitive and highly provocative. This had caused the accused to react without pre-meditation. 

 Chief Justice Sapolu took into consideration the fixtures by the accused of the damages he caused to the property and the apology by the accused to the complainant which was accepted. 
 Chief Justice Sapolu  discharged the accused without conviction pursuant to s.104 of the Criminal Procedure Act 1972. In his view, the offending in this case is not that serious, as reflected by the fact that the prosecution is not seeking a custodial sentence. His Honor stated that the consequences of a conviction would mean that the accused’s 20 years  career in the police force would automatically be brought to an end. The accused was ordered to pay $500 costs to the prosecution within 14 days. 

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S2044/14-S2046/14

BETWEEN

P  O  L  I  C  E

Prosecution

A  N  D

LOKENI SU’A male of Fasitoo-uta and Lufilufi.

Accused

Counsel:	R Titi and B Faatifi-Lo Tam for prosecution
		C S Vaai for accused

Sentence:	24 December 2014  

S E N T E N C E
1. 	The accused appears for sentence on one charge of intentionally damaging property, namely, louver windows of a house, contrary to s.184 (2) (a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment; one charge of verbally making a threat to kill, contrary to s.12 of the Act, which carries a maximum penalty of 3 years imprisonment; and one charge of using threatening words whereby a breach of the peace may be occasioned, contrary to s.4 (g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment or a fine of $40.  The accused had pleaded not guilty to the charges but was found guilty at trial. 
2. 	The accused is a senior police constable.  He has been in the police force for 20 years.  He is married with young children and is the sole breadwinner for his family.  The testimonial from the Acting Commissioner of Police shows the accused to be a matured, reliable, hardworking, and honest member of the police force.  The testimonials from the bishop of the accused’s church and the pulenuu of his village also show the accused to have been a person of good character prior to this offence.
3. 	The accused and the complainant are members of the same family at Fasitoo-uta.  The complainant lives at Leauvaa and her brothers reside in New Zealand.  The accused, his 80 year old mother, and his brothers live at their family at Fasitoo-uta and look after the maota of the family and other properties.
4. 	On Sunday night, 29 December 2013, the complainant, her two brothers from New Zealand, and a male cousin from Saleimoa went to their family at Fasitoo-uta.  They were welcomed at the maota of their family by the mother of the accused who lives there.  This is the maota of Aiono Finai Mika.  The accused’s mother welcomed the complainant, her brothers, and their cousin with the usual Samoan courtesies and hospitality expected between members of a family.  Pillows and mats were then laid out for the complainant, her brothers, and their cousin to sleep on.  They never told the accused’s mother or any member or the accused’s side of the family the real purpose of their visit.
5. 	Early the following morning at 6am, the accused’s mother and side of the family were surprised and shocked to hear an ava ceremony being conducted in the maota of their family for the bestowal of the title Aiono on one of the complainant’s brothers.  The accused’s mother wept and cried and fell to the floor of the house.  She hit the floor of the house with her hands and cried.  This was because she and her children were staying in the family and look after the family’s maota and other properties but the complainant and her brothers had never informed her about the ava ceremony for the conferment of the title Aiono on one of the complainant’s brothers.  This was culturally insensitive and highly provocative.
6. 	The accused who was asleep was awakened by the noise and upon seeing what was happening and her old mother crying on the floor of the house, picked a stone and threw it at one of the louver windows of the house.  He chased away the complainant and her brothers and uttered threatening words that he will kill anyone of the complainant’s party who dares to come back to the house.
7. 	It is clear that there was no pre-meditation on the part of the accused as he had been asleep and had just woken up.  His actions were a spur of the moment reaction when he saw his old mother crying on the floor of the house because of the ava ceremony by the complainant and her brothers.  However, no one was injured.
8. 	The accused has fixed the louvers of the house that he damaged.  The accused also said in his evidence during the trial that at the subsequent bestowal of the title Aiono on one of the complainant’s brothers, he played the leading role of keeping the peace within his family.  He has also apologised to the complainant and his apology was accepted.  So this matter has been settled within their family.
Discharge without conviction 
9. 	Counsel for the accused in his submissions seeks a discharge without conviction under s.104 of the Criminal Procedure Act 1972 as a conviction would automatically terminate the accused from the police service.  Section 104 in so far as relevant provides:
“(1)	If after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence is of the opinion that, although the charge is proved:
(a)	The offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other nominal punishment, or
(b)	Having regard to the age or other special circumstances of the offender, the entering of a conviction would of itself be a hardship out of all proportion to the particular circumstances of the offence committed, it may discharge that person without convicting him, unless a minimum penalty is expressly provided for the offence by any enactment.
“(5)	A discharge under this section shall be deemed to be an acquittal.
“(c)	A Court discharging any person under this section may, if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted him, and the provisions of any such enactment shall apply accordingly”.
10. 	The approach to be applied under s.104 of the Criminal Procedure Act 1972 was discussed by this Court in Pale v Attorney General [2010] WSSC 122 per Vaai J; and Police v Papalii [2011] WSSC 132 per Sapolu CJ.  The crucial question is whether the consequences of a conviction would be out of all proportions to the gravity of the offending.
11. 	In my view, the offending in this case is not that serious.  This is also reflected by the fact that the prosecution is not seeking a custodial sentence.  However, the consequences of a conviction would be that the accused’s 20 years of unblemished career in the police service would automatically be brought to an end.  It would be difficult for the accused to find another appropriate job.  Inevitably, he and his family who depend on him will suffer financially.  I have therefore come to the conclusion that the accused be discharged without conviction.
12.	The accused, however, is ordered to pay $500 costs to the prosecution. This is to be done in 14 days.
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CHIEF JUSTICE

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