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Police v Mika [2017] WSSC 118 (5 September 2017)

SUPREME COURT OF SAMOA
Police v Mika [2017] WSSC 118

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PETI MIKA male of Tafitoala, Safata.
Accused

Counsel:
L Sio for prosecution
Accused in person

Sentence: 5 September 2017

S EN T E N C E

The charge

2. The accused appears for sentence on one charge of attempted arson, contrary to s.183 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
3. The charge was originally filed in the District Court and then dealt with in the Family Violence Court where the accused entered a plea of guilty. It was subsequently transferred to this Court presumably because of the maximum penalty of 10 years imprisonment. The accused maintained his plea of guilty before this Court.

The offending

4. According to the prosecution summary of facts, on 9 December 2016 around 5pm, the complainant was with her family at Tafitoala, Safata, when the accused came to their house with a Vailima bottle filled with kerosene and started pouring kerosene around the complainant’s house. The complainant’s husband asked the accused what he was doing and the accused replied he is going to burn down their house. The complainant’s husband then jumped out of the house and tried to stop the accused.
5. In his pre-sentence report, the accused told the probation service that he has carpentry skills and the complainant’s husband is his cousin and they live in the same village. He had built a house for the complainant’s husband and his family but has yet to receive any payment for his work. The complainant’s husband then asked him to build another house for him and his family. They then made an agreement that the complainant’s husband was to pay the accused $500 for building the second house which was a Samoan fale with an extension at the back. In the first week of work, the complainant’s husband gave the accused $100; in the second week the complainant’s husband gave the accused $50; and in the third week the accused asked the complainant’s husband if he could have the rest of his pay as he needed the money for his children’s end of year school prize giving. The complainant’s husband gave the accused only $60. This made the accused angry as he had also not received payment for building the first house of the complainant’s husband and his family. The accused then went and bought two bottles of beer which he drank. After drinking his beers he went home, filled a Vailima bottle with kerosene, and went back to the newly built house of the complainant and her family. He poured the kerosene around the house. Somehow, it suddenly occurred to him that the complainant’s husband is his cousin and what he was going to do would waste his hard work in building the house. He therefore did not lit the kerosene but walked back to the road. However, the complainant’s husband followed and punched him and they had a fight which was stopped by people of the village.

The accused

6. As shown from the pre-sentence report, the accused is 52 years old and married with five children. He wife, unfortunately, passed away whilst he was remanded in custody because of this offending. He finished school at Year 10. He then helped out with his family’s plantation. Later on he was employed in several jobs. His last job was as a caretaker which he left in order to concentrate on the Toe Afua Se Taeao Fou programme of the ADC.
7. The accused has apologised to the complainant and her husband and the apology was accepted. This matter has therefore been reconciled and settled. The complainant’s husband told the probation service that the accused is his cousin and he never had any intention to bring this matter before the Court. The only reason why the police were contacted was to bring the accused to the station to calm down his anger as he was intoxicated. But he never wanted the accused to be charged. He and his wife pleaded with the Court to withdraw this matter.
8. The character testimonial from the pastor of the accused’s church shows that the accused is a regular churchgoer and is supportive of church activities. He pleads for mercy on the accused. The character testimonial from the pulenu’u of the accused’s village shows that the accused is supportive of village activities and is the leader of the aumaga of the village. He also says that he has noticed a significant change to the accused since he attended the programme of the ADC. The testimonial from the wife of the accused’s older brother states that the accused is a hardworking and dedicated member of their family and he contributes financially to the affairs of the family.

The Alcohol and Drugs Court (ADC) programme

9. When the accused was transferred to this Court from the Family Violence Court, he was referred to the ADC clinician for an assessment and a report. The report from the ADC clinician recommended that the accused be referred to the 7 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs programme and then to the ADC anger management programme. I accepted the recommendation. The accused has successfully completed the 7 week Toe Afua Se Taeao Fou programme and has graduated with a certificated of due completion. The ADC case manager has provided a favourable report on the accused.

The aggravating features relating to the offending

10. The only aggravating feature relating to this offending is the accused pouring kerosene around the complainant’s house to burn it down.

The mitigating features relating to the offending

11. The first mitigating feature relating to this offending is provocation. The complainant’s husband had not paid the accused for building their first house and when the accused asked for the rest of his pay for building the second house as he needed money for his children’s end of year school prize giving, he was given only $60 when the rest of his pay was $350.
12. The other mitigating feature relating to the offending is that the accused had a change of heart and did not lit the kerosene which he had poured around the complainant’s house. Instead, the accused walked back to the road as he told the probation service.

The aggravating features relating to the accused as offender

13. There is no aggravating feature relating to the accused as offender.

The mitigating features relating to the accused as offender

14. The following are the mitigating features relating to the accused as offender: (a) the accused has apologised to the complainant and her husband and the apology was accepted, (b) this matter has been reconciled and settled, (c) forgiveness of the accused by the complainant and her husband, (d) at age 52 years the accused is a first offender and the fact that he had been a person of good character prior to the commission of this offence as shown from the character testimonials from the accused’s village pastor, his village pulenu’u, and his sister in law, (e) the accused has successfully completed the ADC Toe Afua Se Taeao Fou programme, and (f) his guilty plea.

Discussion

15. After giving the aggravating and mitigating features of this matter, I have decided not to impose a custodial sentence. A term of supervision would be appropriate.

Result

16. The accused is convicted and sentenced to 10 months supervision with the special conditions that he is to attend the 8 week ADC anger management programme if he has not done so and to perform 30 hours community service.

CHIEF JUSTICE