SUPREME COURT OF SAMOA
Police v Kini & Ors [2016] WSSC 151

Case name: 	Police v Kini	
		
Citation: 	[2016] WSSC 151	
		
Decision date: 	19 August 2016	
		
Parties: 	POLICE and ULU VAOMALO ULU KINI, MATUAILEALA FAAOLAINA ULU KINI & LANCELOT ULU KINI males of Puipa’a (defendants)	
		
Hearing date(s): 	26-27 May 2016	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	•	The defendant Ulu Vaomalo Ulu Kini is discharged without conviction and ordered to pay:
$200.00 for court costs;
$100.00 for prosecution costs;
$800.00 in compensation to the complainant, Maotaalii Kaioneta. 
The fines are to be paid by 4pm today; in default six months’ imprisonment. 
•	I convict and sentence the defendant Lance Ulu Kini to six months’ suspended sentence and order to pay the following costs 
$100 for court costs;
$100 for prosecution costs; and
$600 in compensation to the complainant, Maotaalii Kaioneta. 
•	For the defendant Matuaileala Ulu Kini, I convict and sentence him to 12 months’ suspended sentence and order him to pay the following costs:
$100 for court costs;
$100 for prosecution costs; and
$600 in compensation to the complainant, Maotaalii Kaioneta.
•	The defendants Lance and Matuaileala to pay the compensation costs by 4pm today; in default three months’ imprisonment. They will also be called upon to be sentenced should they re-offend within the period their sentences are suspended. 	
		
Representation: 	O Tagaloa for Prosecution
G Latu for the Defendants	
		
Catchwords: 	Intentional damage – excavation of land – events following a Land and Titles Court case outcome – no reconciliation – non-custodial sentence – monetary penalty imposed	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s. 184(2)(a) 
Criminal Procedure Act 1972 ss. 104(1)(b); 104(6); 113(1); 113(2)	
		
Cases cited:		
		
Summary of decision:		

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ULU VAOMALO ULU KINI, MATUAILEALA FAAOLAINA ULU KINI & LANCELOT ULU KINI, of Puipaa
Defendants

Counsel:
O Tagaloa for Prosecution
G Latu for the Defendants

Sentence:	19 August 2016

sentencing of Justice Tuatagaloa
1.	The three defendants are appearing for sentence after having been found guilty of one charge of intentional damage of properties belonging to Maotaalii Kaioneta.   
2.	The penalty is maximum seven years’ imprisonment under s. 184(2)(a) of the Crimes Act 2013.
3.	The facts of the case have been heard in Court by way of evidence and I will not go into it.
Ulu Vaomalo Ulu Kini
4.	The defendant is 74 years’ old and a first offender.  The defendant holds one of the chiefly oratorial title from the district of Faleata-i-Sasae.  He was a former Member of Parliament and a well respected member of the community.  The testimonials provided by his faifeau, Reverend Eletise Suluvale, the pulenuu speaks highly of him  as a matai and tuua of Puipaa how he has served the village and district and the EFKS for many years and is an ordained deacon. 
Lance Ulu Kini
5.	Lance is 45 years’ old and is the fourth child of the defendant, Ulu Vaomalo’s children.  He operates his father’s taxi business. He is a first offender.
Matuaileala Ulu Kini
6.	Matuaileala is the eldest of the defendant, Ulu Vaomalo’s children.  He is a 53 year old single father with two children.  He has previous conviction of which offending is not the same as the offending he is to be sentenced today. 
7.	The defendant, Ulu Vaomalo speaks of his two sons as hardworking, who provide support and serve their family whole heartedly. Ulu Vaomalo pleads for leniency from the Court when passing sentence upon his sons.
8.	The aggravating features of the offending is the damage to the properties of the complainant, Maotaalii Kaioneta; the lack of consideration by the defendants of the complainant, his family and their property when they excavated the land.
9.	The only mitigating factor in favour of Ulu Vaomalo Ulu Kini and Lance Ulu Kini are their first offender status. I find no mitigating factor in favor of Matuaileala.
10.	There has not been a reconciliation of this matter.  The Court can only appeal to the defendants and the complainant in their tofa faa-tamalii as ‘matai’ to maintain peace and harmony between their families.
11.	We are proud people – proud of our own line of heritage in terms of ‘matai’ titles and where we come from.  We have to remember that we are one and the same – we are all Samoans. 
12.	The stability of our country that we have been enjoying is because of the stability of our families and the way our people have been able to resolve any dispute by their wisdom in their tofa faa-tamalii.
13.	The circumstances of this offending does not warrant an imprisonment term. The prosecution has asked for a conviction and monetary fine to be imposed upon the defendant, Ulu Vaomalo Ulu Kini and suspended sentences for the defendants Lance and Matuaileala.  The probation services in the pre-sentence report (PSR) also recommends for a monetary fine.  However, defence counsel has asked for discharge without conviction under section 104(1)(b) of Criminal Procedure Act 1972 to be imposed on all three defendants. 
14.	When considering a discharge without conviction the court needs to consider the gravity of the offence; any direct and indirect consequences of a conviction and whether the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offending.
15.	Defence Counsel asks the court to consider the age and health of the defendant Ulu Vaomalo. He is 74 years old, a first offender and is not in good health; that he travels to New Zealand a lot for treatment and follow ups. He is also chairman of some of the government boards. A conviction would mean that he lose his chairmanship of the boards he sits on and may be detrimental to his ability to travel to New Zealand for his medical checks. 
16.	Although Ulu Vaomalo Ulu Kini ordered the excavation which his sons, Lance and Matuaileala carried out, I agree with his Counsel’s submission for a discharge without conviction.  The defendant is 74 years old and has been a law abiding citizen until this offending. He suffers from cancer and a conviction on a charge of intentional damage with a maximum 7 years imprisonment term may affect his travels to New Zealand for his medical checks. Even with a discharge without conviction the court can still order costs or compensation against the defendant under section 104(6) of the Criminal Procedure Act 1972.
17.	The defendant Ulu Vaomalo Ulu Kini is discharged without conviction and ordered to pay:
(i)	$200.00 for court costs;
(ii)	$100.00 for prosecution costs;
(iii)	$800.00 in compensation to the complainant, Maotaalii Kaioneta. 
(iv)	The fines are to be paid by 4pm today; in default six months’ imprisonment. 
18.	As for the defendants Lance Ulu Kini and Matuaileala Ulu Kini, counsel for the defendants also ask for a discharge without conviction for these two defendants saying their involvement in the offending was so trifling in nature and that they were only present at the scene and did not encourage and incite anyone. I don’t agree with counsel. The defendants’ presence at the scene could be seen as inciting. They made sure that the excavation as ordered by their father is carried out. They played an active role in the carrying out of the excavation. I agree with prosecution that the consequences of a conviction upon these two defendants will not be disproportionate to their role in the commission of the offending. The prosecution recommended for a conviction and 12 months suspended sentence pursuant to section 113(1) of the Criminal Procedure Act 1972. 
19.	I convict and sentence the defendant Lance Ulu Kini to six months’ suspended sentence and order to pay the following costs pursuant to s.113(2) of the Criminal Procedure Act 1972:
(i)	$100 for court costs;
(ii)	$100 for prosecution costs; and
(iii)	$600 in compensation to the complainant, Maotaalii Kaioneta. 
20.	For the defendant, Matuaileala Ulu Kini, the presence of a previous conviction although not related to this offending nevertheless means that he is not of previous good character. I convict and sentence him to 12 months’ suspended sentence and order him to pay the following costs:
(i)	$100 for court costs;
(ii)	$100 for prosecution costs; and
(iii)	$600 in compensation to the complainant, Maotaalii Kaioneta.
21.	The defendants Lance and Matuaileala to pay the compensation costs by 4pm today; in default three months’ imprisonment. They will also be called upon to be sentenced should they re-offend within the period their sentences are suspended.

JUSTICE TUATAGALOA