Police v Peteru [2017] WSDC 13 (28 April 2017)

THE DISTRICT COURT OF SAMOA
Police v Peteru [2017] WSDC 13

Case name:	Police v Peteru
Citation:	[2017] WSDC 13
Decision date:	28 April 2017
Parties:	POLICE v ANDREW PETERU male of Sinamoga (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	FAMILY
Place of delivery:	The District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	For the charge of Arson, I will pass sentence at a starting point of 13 months imprisonment. I will deduct 3 months for his guilty plea. I will deduct a further 3 months for his good character as this is first offence and this out of character as supported by all the letters of support. I will deduct another 1 months for attempts at reconciliation, which leaves a total of 6 months. For the charge of Intentional Damage, I will impose a custodial sentence of 3 months. These sentences are to be served concurrently. However, given that you have had the benefit of attending the anger management programme and that you have successfully completed these programs which was to ensure that you do not commit any offences or appear before this Court or any other Court in the future, I am inclined to consider allowing you a suspended sentence for a period of 2 years sentence so that we can assess how truly remorsefully you are and provide an opportunity for you to make amends and to spend time with your family who I am sure are all grieving alongside you because of the untimely death of your brother and the burden of you going to jail. I must warn you however, within the next two years, you must not appear before this Court or any Court for the commission of any offence. As any future court appearances within the next two years, will result immediately in you serving a custodial sentence of 6 months.
Representation:	Sergeant K Stanley for National Prosecution Office R Schuster for Defendant
Catchwords:	Intentional Damage AND Arson
Words and phrases:
Legislation cited:	Crimes Act 2013 Section 184(2) AND Section 182(2)
Cases cited:	Police v Faamanu[2009] WSSC, Police v Amosa Police v Faamanu Police v Vesi Sefo Police v Taiiletai Faaulufalega and Pale Faaulufalega Police v Felise Police v Tuilevaoala Tonia Police v Fasiota Pogi Police v Tuilevaoala Tonia Police v Seuseu Apineru Alavine Feliuai Police v Malotutoatasi Liu Police v Samuelu Kelemete, Police v Alefosio Fagalo
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND

ANDREW PETERU, male of Sinamoga
Defendant

Representation:
Sergeant K Stanley for National Prosecution Office
R Schuster for Defendant

Sentence 28 April 2017

SENTENCING DECISION OF JUDGE ATOA-SAAGA

1. Andrew Peteru you appear for sentencing on two charges. These charges are
   • (a) One count of Intentional Damage pursuant to Section 184(2) of the Crimes Act 2013 which carries a maximum penalty of seven (7) years imprisonment.
   • (b) One count of Arson pursuant to Section 182(2) of the Crimes Act 2013, which carries a maximum penalty of seven (7) years imprisonment.
   • (c) You entered a guilty plea through your Counsel at the first available opportunity on the 8^th August 2016.

The Offending

(a) The Amended Summary of Facts which was read out to you and you accepted through Counsel was that on the 15^th January 2016 at Sinamoga, you received information that the person responsible for causing your brother’s death was living at the Second Victim’s house. Your family were then preparing for your brother’s burial.
(b) That on the said date you went over with the Second Defendant to the house of the Second Victim and First Victim came out and asked as to the reason you were there. The Second Defendant in response assaulted the First Victim. You pulled the Second Defendant off and told her to stop.
(c) You then walked inside the second victim’s house whilst holding a kerosene bottle. You asked the first victim, “ po of fea tagata e nonofo I le fale lea.” (Where are the people who live in this house) You then chased the first victim out before you spilled kerosene around the sitting room area and set it on fire.
(d) As a result of the fire, the following properties were damaged:

• (a) Eight louvers
• (b) 64 Louvers glasses
• (c) 1 frame (4 ft light)
• (d) 2 light bulbs (4 ft)
• (e) 6ft screen wire
• (f) 5ft electric wire
• (g) 1 set chair with cushions
• (h) 1 TV set
• (i) 2 single beds.

The total value of the Second Victim’s properties that were damaged by the fire amounted to $2,511.00.

The Accused

2. You are a thirty seven (37) year old male of Sinamoga with a de facto partner and you have three children. Your children ages range from a 1 year old to 10 years old. You are currently employed by National Health Services as a Technician in the Blood Transfusion Section. You have been working in the Health Sector since you finished Year 13 at Avele College. Whilst you were working, you also obtained a Scholarship to Auckland New Zealand for a period of 3 years after which you graduated and return to Samoa with a Diploma in Science. You have since your return continued to work for National Health Services.

The Victim

3. The First victim is a twenty two year old female of Sinamoga who is married and has one child.
4. The Second Victim who is the owner of the property is a fifty four year old female of Sinamoga and she is married with 8 children. She was not at the house when the Defendant came over with a kerosene bottle.
5. The First and Second Victim incurred costs as they had to seek a loan to finance the following items to replace the properties that were damaged by the fire:
   • Paint
   • Tiles
   • Refrigerator
   • Flat Screen TV
   • King Size beds
   • Sewing machine
   • New lounge suite
   • New meter
   • New louvers and screen wire.

Aggravating features of your offending

6. You were consumed with anger and grief that you did not act rationally.
7. You did not consider the properties of the Second and First Victim who were not the perpetrators who had murdered your brother. You invaded their privacy with total disregard of the consequences of your action.
8. There was an element of premeditation to your offending in that you deliberately went to the house with the kerosene with an intention to set fire to the place.
9. Your actions caused the First victim to run from the house in fear and the Second Victim to rush home fearing for the life of her grandson and whoever was at the house.
10. They also lost valuable assets to the amount of $2,511.00.

Mitigating features of your offending

11. You told the First Victim to leave the property before you started the fire. Your action in asking if there were other people in the house prior to the setting on fire of the sitting room shows that you were concerned for the welfare of the First Victim and any other person who was there at the time.

The Mitigating features as an Offender

12. You pleaded guilty at the earliest opportunity of the two charges.
13. You have also with your mother approached the Second Victim and apologized and there has been reconciliation with the Second Victim. In the Victim Impact Report, the First Victim stated that there has not been any reconciliation between her and you. She has noted however that you had already approached the Second Victim who is the owner of the property that you had burnt down.
14. On 21^st October 2016, you were ordered by my brother Judge Clarke who is now a Justice of the Supreme Court to attend an anger management program with the Second Defendant. You attended and completed that program which was for a period of 8 weeks. I have perused the ½ way review and final report prepared by the Probation Services and both reports stipulate that you had fully participated and undertook to apply the important principles taught in this program which is based on Biblical principles, custom and usage and internationally recognized counseling methods of dealing with anger. Some of these principles will assist in the healing process, which I understand will take time.
15. There are also four letters of support from the Methodist Church pastor Reverend Auro Teve of Methodist Church at Vaimoso, the Pulenuu or Mayor of Vaimoso, Matai o le Aiga and National Health Services. All letters speak of a person who is trustworthy, dedicated and committed to his work, his family, his church and his community.
16. The Report from your Employer also shows that you were awarded in 2015 with the Most Improved Laboratory Employee Award of the year and it is a testament to your potential to excel and take up in the future higher posts in the Health Sector.
17. The Probation Report also includes your father’s testimony. He stipulates that both your father and mother are unemployed and solely depend on you and your siblings for their livelihood.
18. This aberrant behavior is out of character.

Discussion

19. The Prosecution seeks a custodial sentence to be imposed on you. The starting point submitted by Prosecution is 2 years for the charge of Arson and 7 months for the charge of intentional damage and for these terms to be served concurrently.
20. The Prosecution also rely on the following case authorities on arson Police v Fasiota Pogi and Police v Tuilevaoala Tonia and on Intentional Damage Police v Seuseu Apineru Alavine Feliuai , Police v Malotutoatasi Liu, Police v Samuelu Kelemete, Police v Alefosio Fagalo
21. In Police v Fasiota Pogi, the Defendant was convicted to 2 years imprisonment. In delivering his decision, Justice Nelson at page 159 stated that,
    • “Arson is a serious criminal offence it carries a 14 year maximum penalty by law. The defendant’s record indicates that this is not his first brush with the law. He has a list of court appearances dating back to 2007 for offences of violence and for drunkenness. Clearly, the Defendant has anger management problems and issues with alcohol. In mitigation this morning, the defendant had asked the court to give him a chance or a avanoa for the sake of his family. However, a perusal of his records indicates that he has already been given 5 avanoas by the courts of this country. On each of these occasions, the Court could have sent him to prison but did not. The Defendant had failed to learn anything from the previous court appearances. No more chances are available. An imprisonment term is entirely appropriate for the defendant and for his actions.”
22. In the preceding matter, the Defendant was charged under Section 182(1) of the Crimes Act 2013, which incurs a higher penalty of 14 years. In Police v Tuilevaoala Tonia, the Defendant a prison inmate was sentenced to time served in the Tafaigata Prison.
23. 15. On the facts of those cases, the background of the accused and the reasons for the decision, I am inclined to distinguish those cases from the current matter.
24. In respect of the case authorities submitted by the Prosecution on intentional damages, the value of the damages ranges from $1,500 to $3,500. The current matter falls within this range given that the total value of damaged properties is $2,511.00. I will accept the value provided in the Amended Summary of Facts rather than the Victim Impact Report as the value of properties bought by the Victim to replace the damaged properties exceed the value of damaged goods and some of these items including the flat screen television set, Refrigerator, 2 king size beds, the tiles, sewing machine and the new lounge suits are of a higher value than the damaged properties with some not included in the list of damaged properties.
25. The imprisonment terms for these cases authorities is 4 months with the Defendants sentenced to probation and payment of fines.
26. 17. In considering what the appropriate penalty I am guided by the Chief Justice decision in Police v Faamanu[2009] WSSC 37 at para 37 where he stipulated that,
    • “For the purpose of sentencing, it is a relevant consideration to refer to sentences passed by the Court in similar previous cases. However it is a cardinal principle of criminal sentencing that the sentence in a particular case must depend on the circumstances of that case. No two cases have exactly the same circumstances so that consistency in sentencing approach will not necessarily lead to consistency in results.”
27. I have also read other decisions of the Court including Police v Amosa in which Justice Aitken stated that, “ Setting fire to items puts other peoples lives and property at risk.” The defendant had burnt his sisters property which amounted to $2,200 and at the time of the decision had repaid $1,200 and paid $1,000 to village council. The Defendant was given a 3 years suspended sentence and Her Honour stated that, “ I will treat this as something out of character in other words not how you would normally behave and I will give you a chance to remain with your family and supporting your wife and children.”
28. Other cases included Police v Faamanu (2 years and 3 months) Police v Vesi Sefo in which the Defendant was convicted and sentenced to 13 months imprisonment, Police v Taiiletai Faaulufalega and Pale Faaulufalega, Defendant fined to pay $1,600 and to undergo an Anger Management Program, Police v Peni 10 months probation, Police v Felise, sentenced to 80 hours community service and 12 months supervision and to attend management program and refrain from consuming alcohol. I must also note that the three latter cases all involved defendants who were intoxicated at the time and the Court considered the attendance of the Defendants of the intervention programs as a mitigation factor

The Penalty

29. In passing sentence, I have considered the actions of the Defendant and the reasons why he committed the offence. Whilst I do accept that he was consumed with grief and anger and this motivated him to commit the offences, that is not a valid reason for the commission of the offence. I also wish to note that a penalty should act as deterrence for future cases where the Defendants take the law into their own hands. After considering all the cases law I have cited, I am of the view that a custodial sentence is appropriate for both charges.
    1. for the charge of Arson, I will pass sentence at a starting point of 13 months imprisonment. I will deduct 3 months for his guilty plea. I will deduct a further 3 months for his good character as this is first offence and this out of character as supported by all the letters of support. I will deduct another 1 months for attempts at reconciliation, which leaves a total of 6 months.
    2. For the charge of Intentional Damage, I will impose a custodial sentence of 3 months.
    3. These sentences are to be served concurrently.
30. However, given that you have had the benefit of attending the anger management programme and that you have successfully completed these programs which was to ensure that you do not commit any offences or appear before this Court or any other Court in the future, I am inclined to consider allowing you a suspended sentence for a period of 2 years sentence so that we can assess how truly remorsefully you are and provide an opportunity for you to make amends and to spend time with your family who I am sure are all grieving alongside you because of the untimely death of your brother and the burden of you going to jail.
31. I must warn you however, within the next two years, you must not appear before this Court or any Court for the commission of any offence. As any future court appearances within the next two years, will result immediately in you serving a custodial sentence of 6 months.

JUDGE TALASA LUMEPA ATOA-SAAGA