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Police v Reopoamo [2024] WSSC 136 (5 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Reopoamo & Ors [2024] WSSC 136 (5 December 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

VAELE IOSIA REOPOAMO, TAUTI TIAKA, TOEMAGO PA’U LASALO, LEMANA NOUATA, OFISA SITAFAO, VAA ALAI, AMIGA LAGAAIA, TOMASI SAMUELU, FAAVEVELA LALE, LEMANA PENE and SALAPO ETENE UII, all males of Lefagaoalii

Accused

Representation: L Su’a-Mailo for Prosecution

A Su’a for all Accused

Bail Application Hearing: 21^st November and 2^nd December 2024
Ruling: 5^th December 2024

RULING ON APPLICATION FOR BAIL PENDING SENTENCE

1. On 19th November 2024, the eleven defendants pleaded guilty to the kidnapping of Sooalo Asiata Alaimanuomalo Vitale Tu'u, the 73-year-old victim. Lemana Pene, Vaa Alai, Ofisa Sitafao and Fa'avevela Lale (a.k.a Tuua) have also pleaded guilty to a charge of common assault. Following the entry of their guilty pleas, all defendants were remanded in custody pending sentence scheduled for Friday 6th December 2024.
2. All defendants apply for bail pending sentence pursuant to sections 103 and 99 of the Criminal Procedure Act 2016 (CPA). The applicants have filed two affidavits in support of their application for bail together with supporting material. Prosecution opposes the grant of bail. No affidavits have been filed by prosecution.

Relevant Law

3. Section 103 of the CPA which deals with bail pending sentence provides:
   • “103. Bail pending sentence - (1) If a defendant is found guilty or if a defendant pleads guilty, the Court may not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
   • (2) The onus is on the defendant to show cause why bail should be granted.
   • (3) When considering the interests of justice under subsection (1), the Court may, instead of the considerations in section 99, take into account the following considerations:
     • (a) whether the defendant is likely to receive a sentence of imprisonment;
     • (b) the likely length of time that will pass before the defendant is sentenced;
     • (c) any other consideration that the Court considers relevant.
   • (4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.” (emphasis added)
4. The bail considerations in section 99 include risk of non-appearance, flight risk, prior convictions, risk of offending on bail, the seriousness of the charges and other factors.
5. By virtue of section 103 of the CPA, the presumption is that where a defendant pleads guilty or is found guilty, bail may not be granted. It is incumbent on a defendant seeking bail pending sentence to satisfy the court on balance of probabilities that it would be in the interests of justice in the particular case to grant bail. Once found guilty or having pleaded guilty, the presumption of innocence no longer applies. However, if a defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody (section 103(4), CPA).
6. In R v Leone [2009] NZCA 325, the New Zealand Court of Appeal dealt with the same issue at paragraph [7] concerning bail following conviction:
   • “...We are of the opinion that when trial judges consider bail following conviction, they should address the likelihood of imprisonment as relevant in the following respects:
     
     • (a) If imprisonment is not a real or substantial possibility, s 13 (4) will apply (and bail would ordinarily be granted).
     • (b) Under s 13 (3)(a) the judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed. The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.”
7. If a defendant is unlikely to receive a sentence of imprisonment, that must count against the defendant being remanded in custody (section 103(4), CPA). When applying section 103 (3)(a) of the CPA, the court should address whether there is a real or substantial possibility of imprisonment, and also how likely it is that such a sentence will be imposed. The more likely or probable a sentence of imprisonment, the more likely that bail will be refused.

The Accepted Facts:

8. Ms Sua-Mailo has helpfully prepared a Summary of Facts dated 26th November 2024 at short notice. By a joint supplementary affidavit dated 28th November 2024, the defendants have also outlined those aspects of the Summary of Facts in dispute. Counsel are in agreement that for the purposes of bail, I may proceed on the accepted facts.
9. In brief, the kidnapping and assault of the victim was prompted by a complaint laid against the victim by the deacon of the Catholic Church at Lefagaoalii in early September 2023. He alleged that the victim had entered his property on the 8th September 2023 while intoxicated and made insulting remarks against both the deacon and more broadly, the matai of the village.
10. On Wednesday 13th September 2023, it was made known that a village meeting would be held the following morning. The following morning, only the sub-villages of Siufaga and Lolua were in attendance. It was put forward that because of the victim’s alleged behaviour, e “tu le to’oto’o”, a proposal seconded by Vaele Reopoamo and confirmed by the village. All defendants were present at this meeting. Later that morning, the message was communicated to the victim that he must vacate his property by 4.00pm. The victim was informed that they would return that afternoon to check his compliance. The village reconvened at 3.00pm in a meeting led by Lemana Nouata, Vaele and allegedly, Aitauia. Lemana Nouata, Tauti Tiaka and Vaele together allegedly with Aitauia then instructed the taulealea to check on the victim and whether he had complied. If the victim had not complied, he was to be tied to an amo and carried away. All eleven defendants agreed to this being done to the victim.
11. At 5.00pm that afternoon, the eleven defendants together with other villagers then went to the victim’s home. Vaele, allegedly together with Aitauia, told the taulealea to surround the victim’s home to prevent any possibility of escape. Having failed to comply with the village decision, Vaele, Tauti and allegedly Aitauia gave the instruction to the taulealea to capture and bind the victim to the amo. Vaa, Ofisa, Amiga and Lemana Pene tackled the victim to the ground. He was hogtied to the amo by Faavevela, Tomasi, Vaa and Amiga. Once tied to the amo, the victim was lifted up by Ofisa and Vaa and then carried off by Amiga and Faavevela to the aai. As the a’ai was 1.3km away from the victim’s home, Ofisa, Vaa, Faavevela, Amiga and Tomasi took turns carrying the victim. As he was carried away, the victim endured severe pain from the loose ropes causing abrasions to his hands and feet. The victim also bled profusely from a neck wound and suffered from dehydration.

Discussion:

12. The accepted facts show that Vaele, Lemana Nouata and Tauti played what seems a leading role in the victim’s kidnapping. Vaele seconded the proposal before the village meeting to banish the victim. Lemana Nouata, Tauti and Vaele (allegedly with Aituaia) then either initiated and directed the victim’s kidnapping, the surrounding of the victim’s home to prevent his escape, his capture, hog tying and then carriage 1.3 kilometres to the village aai. As those apparently leading the kidnapping, imprisonment is a real and substantial possibility and is highly likely.
13. Similarly, those who played an active physical part in the kidnapping face a real and substantial possibility of imprisonment, also highly likely. The extent of their culpability might however differ from those who were the initiating and directing mind of the kidnapping. Those who captured, restrained, hog tied and carried the victim away were Faavevela, Vaa, Ofisa, Amiga, Lemana Pene and Tomasi.
14. That leaves Toemago Pa’u and Salapo. Toemago was the spokesperson that communicated the village decision to the victim (“tu le tootoo”) and that they would check on the victim’s compliance. Both Toemago and Salapo agreed at the meeting prior to going to the victim’s home that if the victim did not comply, he was to be tied to an amo and carried away. After the victim had been tied to the amo and as they were leaving, Toemago told a villager filming the incident to stop filming as “the footage could have negative consequences for the village.” Toemago, it appears, also played a leading role. I accept that Toemago is also very likely to receive a sentence of imprisonment. I am not however so certain that a custodial sentence will be imposed on Salapo. Although he agreed with the decision and was present throughout the kidnapping, he did not initiate or lead the kidnapping nor did he apparently enforce the will of those who led this whole affair. In the circumstances, while a custodial sentence for Salapo will be open to me at sentencing, I am not at this point certain that imprisonment is more probable than not.
15. I now turn to when sentencing is likely to occur. Given indications by counsel, there is likely to be a disputed Summary of Facts hearing. As we approach Christmas, it is likely that sentencing will now be completed in February 2025, a period of approximately three or so months from when the defendants were remanded in custody. Given the sentencing authorities which I have been referred and considered and the likely sentence start and end points, that period in custody is not significant and would be deducted from and accounted for in their end sentence.
16. There a number of further considerations relevant to my determination pursuant to section 103(3)(c) of the CPA. First, I raised the risk of delay to sentencing due to defendants not returning to court if granted bail, given the number of defendants. In their affidavit of the 19th November 2024, the defendants have assured of their compliance with bail if granted and of their re-appearance on 6th December 2024. Matai from Lefagaolaii also confirmed this. However, as confirmed on Monday this week, Aitauia Lemau who has also pleaded guilty to kidnapping has twice now not appeared before the Supreme Court when scheduled, delaying his matter. With eleven of you to be sentenced together, there is a material risk that one or more of you may not re-appear for sentencing on the sentencing date delaying and complicating sentencing.
17. Second are two matters raised by Mr Su’a to support the bail. These are for the grant of bail so that: (i) the defendants can personally perform an ifoga; and (ii) they can obtain their health records. In terms of an ifoga, this can be performed on behalf of the defendants’ family on their behalf. I am also hesitant to grant bail in circumstances where the defendants are said to remain offended by the victim’s behaviour. In terms of health records, medical attention can be arranged for the defendants at the prison. Further, with the authority of the defendants, counsel and family members can obtain from the defendants’ doctors medical records that may be needed for sentencing. Presently, there are no medical conditions to warrant the grant of bail. With sentencing likely to be in February, there will also be ample time to secure those records to assist with sentencing, where relevant.

Result:

18. Accordingly, I have concluded that the application for bail for Vaele Reopoamo, Tauti Tiaka, Toemago Pau Lasalo, Lemana Nouata, Ofisa Sitafao, Vaa Alai, Amiga Lagaaia, Tomasi Samuelu, Faavevela Lale and Lemana Pene is denied. You will be remanded in custody to re-appear for sentencing. We will schedule sentencing shortly.
19. Salapo, given my conclusion that I am not presently satisfied that imprisonment is more probably than not and for the reasons I have set out, I have decided to grant you bail on strict bail conditions. I will set those bail conditions shortly once I have heard from counsel on bail conditions.

JUSTICE CLARKE