YOUTH COURT OF SAMOA
Police v NT and MTF [2015] WSYC 10

Case name: 	Police v NT and MTF	
		
Citation: 	[2015] WSYC 10	
		
Decision date: 	24 September 2015	
		
Parties: 	Police v NT and MTF 	
		
Hearing date(s): 		
		
File number(s): 	YCT 16/15	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Youth Court of Samoa, Mulinuu	
		
Judge(s): 	DCJ Fepuleai Ameperosa Roma	
		
On appeal from:		
		
Order:	1.	You are both ordered pursuant to section 15(b) of the Young Offenders Act 2007 to undertake 80 hours of community work to be completed within 3 months, with the conditions:
(i)	That you both undertake the Teen Challenge Programme under the direction and supervision of the Probation Service;
(ii)	That you both appear before this Court on 11 November 2015 at 12pm for judicial monitoring.

Representation: 	B Lo Tam-Faafiti for Prosecution	
	M Betham-Annandale for Young Persons
	
Catchwords: 	Sentence - intentional damage – armed with a dangerous weapon – mitigating factor – aggravating factor – starting point for sentence	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s184(2)(a)
Police Ordinance 1961 s25
Young Offenders Act 2007 s15(2)(b) and s16	
		
Cases cited:	Police v. BA [2014] WSDC 2
Police v. Florence Fidow [2015] 
Police v. Farao Talia [2015]	
		
Summary of decision:		

YOUTH COURT OF SAMOA
	
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:	
NT and MTF, both males of Falefa.
Young Persons
	
Counsel:	Ms B. Lo Tam – Faafiti for Prosecution
	Ms M. Betham – Annandale for both Young Persons

Sentencing:	24 September 2015

SENTENCING REMARKS BY JUDGE ROMA
Charges
2.	NT and MTF, you both appear this morning for sentence on 2 charges.  The first and more serious is one of intentional damage, contrary to section 184(2)(a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment.
3.	The second charge is being armed with a dangerous weapon, namely a machete, not being so armed for a lawful purpose, contrary to section 25 of the Police Ordinance 1961.  The maximum penalty is 1 year imprisonment.
4.	At first you both denied the charges.  Subsequently through your counsel, you sought to have your not guilty pleas vacated and entered guilty pleas to both charges.
Offending
5.	According to the Summary of Facts, both charges arise out of an incident at Falefa on 1 April 2015.  Not only did you both go onto land belonging to the complainant’s side of the family and occupied by them.  You also cut down 10 bananas grown on that part of the land by the complainant and her children.
6.	Your actions follow a dispute between your family and the complainant’s side over land which was used by your family in the past, but now occupied and cultivated by the complainant’s side.  That dispute was even determined in the Land and Titles Court in favour of the complainant’s side, before you committed the acts for which you now appear for sentencing.  
Victim
7.	The complainant is a 40 year old mother of seven (7).  She and her children live on and cultivate the land.  Her family and yours’ are all part of the same extended family.
8.	In the Probation Report, she confirms that the both of you and a matai from your side of the family had apologised.  She accepted your apology and by a letter also attached to the Probation Report, she requested that the charges against you both be withdrawn.
Aggravating Factors
9.	The charge of intentional damage is a serious one, given the maximum 7 years imprisonment penalty imposed by law.  In your case however, the only aggravating factors in my view are the damage caused to the complainant’s property and the prevalence of this kind of offending amongst young offenders.
10.	I do not accept the prosecution’s submission that this was a joint or group offending.  Clearly from the Probation Report, you NT were the more culpable because, you not only carried the machete, you also proceeded to cut the bananas yourself, and this is something that you readily admitted to the Probation Service.
Mitigating Factors
11.	In relation to the circumstances of your offending, in particular, the charge of armed with a dangerous weapon, I take into account your explanation to the Probation Service that you carried the machete because you were out to collect coconuts.  Unfortunately, you ended up using it for a purpose that has now landed you both in Court.
12.	Compared to other cases of intentional damage, I take into account that the value of the property is not on the high end.
13.	Your guilty pleas are a significant factor and so is your apology to the complainant, which was duly accepted.
14.	I must also take into account in mitigation of penalty your respective personal circumstances.  From your counsel’s submissions and the pre sentence report, you were both 15 years of age at the time of your offending.  You both no longer attend school but stay home and help out with the chores in the plantation upon which your families rely for sustenance.  At your young ages, this is the first time that you have both appeared before the Courts for a criminal offence.  You have accepted full responsibility for your actions and I accept that you are remorseful. 
Sentencing Principles
15.	I am guided in imposing sentence in your case NT and MTF, by the Young Offenders Act 2007, particularly sections 15 and 16.
16.	The approach under the above sections is set out by Her Honour Judge Tuatagaloa, as she then was, in Police v. BA [2014] WSDC 2.  The relevant parts of that decision state as follows:
(i)	“36.	Part V deals specifically with sentencing.  Section 15 gives sentencing options without entering a conviction, and section 16 sentencing options when the Court has determined pursuant to either section 15(2) or (3) that a conviction is warranted.
(ii)	37.	Of relevance in this case is s15(3) which states that:
a)	“Where the Court is of the opinion that a conviction and sentence is required in the interests of justice after having due consideration to all the circumstances of the offence, it may convict and sentence the young person in accordance with section 16.”
17.	I must therefore firstly consider whether in all the circumstances of your case, the interests of justice require your conviction.  If I do so find, then I may convict and sentence you in accordance with the sentencing options available under section 16.
18.	I am also guided by previous sentences of this Court in similar cases.  Two of these cases cited by the prosecution in its submissions are Police v. Florence Fidow (unreported 12 February 2015) and Police v. Farao Talia (unreported 24 July 2015).  In both cases, no convictions were warranted, however in the former, the young person was discharged and in the latter, he was sentenced under section 15(b).
Discussion
19.	Having considered the seriousness of the offence, the circumstances of your offending, the prevalence among young persons, the fact that the matter has been settled and the complainant has sought to withdraw the charges, I am satisfied that the interests of justice do not warrant your conviction.
 
20.	I am however, not satisfied that you be discharged at this stage.  Obviously, you both accepted responsibility for your actions, you apologised to the complainant, the apology was accepted and the complainant has asked that the charges be withdrawn.  But there is nothing before me which says or suggests that you have made any attempts for reparation, however minimal the value of the damaged properties might be.
Sentence
21.	You are both ordered pursuant to section 15(b) of the Young Offenders Act 2007 to undertake 80 hours of community work to be completed within 3 months, with the conditions:
(iii)	That you both undertake the Teen Challenge Programme under the direction and supervision of the Probation Service;
(iv)	That you both appear before this Court on 11 November 2015 at 12pm for judicial monitoring.
JUDGE FEPULEA’I A ROMA