Visesio v Police [1994] WSCA 4; 09 1992 (21 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 9/92

BETWEEN

ENELIKO VISESIO
of Tafaigata, Prisoner
Appellant

AND

THE POLICE
of Apia
Respondent

Coram: The Rt. Hon. Sir Robin Cooke, President
The Rt Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 21 March 1994

Counsel: K. Enari for Appellant
M.B. Edwards for Respondent

Judgment: 21 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR ROBIN COOK

These are appeals against conviction and sentence. The case has reduced to quite short points, as a constitutional point has been abandoned.

The appellant, Eneliko Visesio, was found in possession of no less than 67 sticks of dynamite and some detonators and other equipment. All this material was found by the Police on his land or premises on 30 March 1992 and a co-offender stood trial also on more serious charges relating to the stealing of dynamite from the premises of the JR Company at the Afulilo Hydro Power Project. It was an armed robbery. The co-offender was convicted, but the trial Judge, the Chief Justice, acceded to a submission by counsel for Eneliko that there was no case to answer against him as to charges inter alia of theft and receiving stolen goods. But he was convicted of the lesser charges, two of these being of possession of explosives without a lawful and sufficient purpose and the third being failing to state the source from which he obtained such explosives to a police sergeant when called upon to do so. He made a police statement which was written in Samoan and clearly contains ample evidence against him to sustain the charges of possession of explosives without lawful and sufficient purpose. The Chief Justice quite properly drew the really inevitable inference that Eneliko had these explosives for the purpose of killing fish.

As to the charge of failing to state the source, that conviction is challenged on appeal on the ground that the only evidence against Eneliko was his Police statement. It has been further pointed out that, with regard to the charge of receiving stolen property knowing it to have been stolen, the Chief Justice found no case to answer. We accept the submission of Mr Edwards, however, that there is no inconsistency in that respect. The Chief Justice was well entitled to reject the far-fetched explanation given by Eneliko in his Police statement that he obtained the supplies from an unknown man in a market and from unknown persons in a red taxi who had driven up to his premises unexpectedly; and it was equally open to the Chief Justice to draw the inference from all the circumstances that Eneliko certainly had not stated the true source of the supplies to the Police. He was nevertheless entitled to find that there was no case to answer on the receiving charge for there may be an ingredient in that charge which was not made out, yet the charge of failing to state the source remained open.

The appeal against conviction for the latter offence must therefore be dismissed.

The case then reduces to a sentencing problem. It arises in this way. The co-offender, Tanielu Sione, upon conviction of robbery received four years' imprisonment on that charge. He was also convicted and sentenced to four years' imprisonment on a charge of theft, which no doubt was intended to be alternative, but as the sentences are concurrent the point is of no great importance. He was likewise charged with being in possession of explosives and on that charge he was convicted and sentenced to four months' imprisonment, that sentence likewise to be concurrent with the other sentence. The fact is that he had in possession a much greater quantity of explosives than did the appellant Eneliko. It can be stated that Tanielu had no previous convictions, whereas Eneliko did have one conviction some considerable time ago for an offence related to the dynamiting of fish. That in itself would justify some difference in the sentences of the two, but it is still difficult logically to accept why the co-offender for the much greater quantity should receive four months' imprisonment, whereas Eneliko received the maximum of six months' imprisonment for each of the two possession charges which he faced and four months imprisonment concurrent on the charge of failing to state the source. Justice must not only be done but must manifestly appear to be done, and the Court considers that there is some force in Mr Enari's submission to the effect that an apparently glaring disparity can create an impression of lack of equal justice. The reason for it is in truth not hard to see, in that the Chief Justice was no doubt not greatly concerned with the period of four months' imprisonment which he was imposing on the co-offender, since the latter was being sentenced to four years on the more serious charge. Nevertheless we think that some adjustment to Eneliko's sentence is appropriate and that there is a further factor supporting such an adjustment in that Eneliko served seven weeks of custody before sentence. Since sentence he has been on bail. It is often appropriate to make some deduction for pre-sentence custody and we see no reason to refrain from that course in the present case.

While we are making some reduction in the sentence for Eneliko, let it be made clear that the Court is in no doubt that this kind of offence is indeed a serious one, chiefly because of the potential damage to the environment. The Chief Justice was perfectly correct to emphasise that fact.

For the reasons that we have given, the appeal against sentence by Eneliko will be allowed and the sentence will he reduced on each of the three charges of which he was convicted. In making a deduction we have made an allowance not only for the appearance of justice, as already emphasised, but also for the pre-sentence custody. On each of the convictions, the sentence will be reduced to imprisonment for three months, all three sentences to be concurrent.

Solicitors
Apa & Enari, Apia, for Appellant
Attorney-General's Office, Apia, for Respondent