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Police v Paulo [2019] WSDC 3 (25 October 2019)

THE DISCTRICT COURT OF SAMOA
Police v Paulo [2019] WSDC 3


Case name:
Police v Paulo


Citation:


Decision date:
25 October 2019


Parties:
POLICE v MALELE PAULO (A.K.A KING FAIPOPO) male of Sinamoga, Vailoa Aleipata and Sydney Australia


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Alalatoa Rosella Viane Papalii


On appeal from:


Order:
- The Application for a Discharge without conviction is denied.
- The accused is Convicted and ordered to serve an imprisonment term of 7 weeks.
- The Accused is ordered to remove forthwith the offensive video clips on YouTube and other social media platforms he is associated with which formed the subject of the original charges. A device is to be made available to him to allow him to execute this order. Failure to do so will result in another week being added to his time.
- The Court have determined that the content of the accused’s post the subject of this proceeding is contrary to Facebook Community Standard Guideline and Samoan Law and order its permanent removal from Facebook
- It is further ordered that future posts of a similar nature by the accused against the victim be reported directly by the Attorney General to Facebook under these orders and Facebook must remove such content upon receipt of the notification.
- The Court further determines that the O le Palemia fake Facebook page to which the Accused is associated with be shut down permanently as it similarly infringes Facebook’s Community Standards Guideline and Samoan Law.
- A copy of this Decision is to be delivered by the Attorney General to Facebook for them to execute these Orders


Representation:
AG Mr. L H Retzlaff & Ms. I Atoa for the Prosecution
Ms. U I Sapolu & Ms. J Fuimaono-Sapolu for the Defendant


Catchwords:
Online Criminal libel or defamation on social media namely Facebook Platform– Criminal Libel or Defamation vs Freedom of expression under Article 13 Constitution – Freedom of Expression is not absolute – Character assassination - Distinction between civil defamation and Criminal Libel – Cybercrime, cyber bullying and harassment – Council of Europe Convention on Cybercrime or Budapest Convention – Reform of Law on Criminal Libel - Facebook Community Standard Guidelines - Law on Discharge without Conviction under ss 69 and 70 Sentencing Act 2016 – Gravity of Offence – Consequences of Conviction – Disproportionality test - Judicial notice under ss122 and 130 Evidence Act 2015; Principles of Sentencing; Faasamoa and cultural social norms and values; contextualizing sentence


Words and phrases:


Legislation cited:
Community Justice Act 2008;
Constitution of the Independent State of Samoa Articles 13; 13(1)(a);
Criminal Procedure Act 2016, s.99(d);
International Covenant on Civil and Political Rights 1966, Articles 17(1); 19;
Crimes Act 2013 ss. 117A;
Evidence Act 2015 ss. 122; 130;
Germany Network Enforcement Act 2017;
Sentencing Act 2016 ss. 5; 7(c); 7(d); 7(e); 7(1)(c); 7(1)(d); 11(2)69; 69(2); 69(3)(a); 69(3)(c); 70.


Cases cited:
AG v Chang [2018] WSCA3;
AG v Ropati [2019] WSCA2;
DC (CA47/13) v R [2013] NZCA255;
Goldsmith v Sperrings [1977] 1WLR or [1977] 2 All ER 566;
H (CA680/11) v R [2012] NZCA198;
Hill v Church of Scientology of Toronto [1995] CanLii 59 (SCC);
Iosefa v Police HC Christchurch – CIV-2005-409-64, 21 April 2005;
Malifa v Sapolu & Alesana [1999] WSSC47;
O’Brien v Brown [2001] DCR 1065;
Police v Annandale [2017] WSDC15;
Police v C Vaai, unreported sentencing ruling of J Viane Papalii delivered on 04/07/19;
Police v D Bentley, unreported sentencing ruling of J Viane Papalii delivered on 12/04/19;
Police v Lagaaia [2017] WSDC23’
Police v Lauina [2017] WSDC5;
Police v Levi [2018] WSDC5;
Police v M Taituave, unreported sentencing ruling of J Viane Papalii delivered on 13/09/19;
Police v N Alalataua, unreported sentencing ruling of J Viane Papalii delivered on 08/03/19;
Police v Papalii & Moalele [2011] WSSC132;
Police v Robbles [2018] WSDC13;
Police v S Paulo, unreported sentencing ruling of J Viane Papalii delivered on 21/12/18;
Police v Salele [2018] WSDC14;
Police v T Faagata, unreported sentencing ruling of J Viane Papalii delivered on 01/07/19;
Police v Tupou [2018] WSDC17;
R v Lucas [1998] 1 SCR 439;
R v Simoes [2014] ONCA 144;
R v Stevens [1993] CanLii 14706;
Savea Sano Malifa v Sapolu & Alesana [1998] WSCA5;
Tupu v Police [2014] NZHC743;
Z v R [2012] NZCA599;


Summary of decision:

THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


AND:


MALELE PAULO (A.K.A KING FAIPOPO), male of Sinamoga, Vailoa Aleipata and Sydney Australia
Defendant


Presiding Judge: Alalatoa Rosella Viane Papalii


Counsels:
AG Mr. L H Retzlaff & Ms. I Atoa for the Prosecution
Ms. U I Sapolu & Ms. J Fuimaono-Sapolu for the Defendant

Sentencing Decision: 25 October 2019


SENTENCING DECISION

Introduction

  1. The Defendant Malele Paulo (“Malele”) also known as King Faipopo appears today for sentence on a charge of criminal libel brought pursuant to s117A Crimes Act 2013. The offence attracts a penalty upon conviction of a fine not exceeding 175 penalty units ($17,500.00) or a maximum imprisonment term of 3 months.
  2. I again note for these purposes that you were originally charged with 13 criminal libel counts (“The Original Charges”) for uploading a live video on YouTube website and your Facebook page where you accused the victim of being a murderer, thief, liar and gun smuggler. However, those original charges and one other from the incident on 17/05/19 (a total of 14), were withdrawn by leave on 23/07/19, following plea negotiations between the parties. According to the Prosecution the withdrawal was on the basis of a prosecutorial decision given the remaining one (1) charge encompasses the totality of all offences charged.
  3. The remaining information D1327/19 records that:
  4. You changed your plea to that charge on 23/07/19 but later recanted. I have just delivered my ruling declining your application to vacate plea (“Vacate of Plea Ruling”) where I outlined the procedural history of this matter which equally applies here. To avoid repetition, I will not traverse this again suffice to say, this case started in February this year. It went through a number of adjournments mainly instigated by your side. It has taken its toll on all concerned. Finality and closure is therefore a must. So I will now proceed to sentence you Malele.

The Offence

  1. I canvassed the offence in some detail in the vacate of plea ruling. For these purposes though I make specific reference to the Summary of Facts (“SOF”) which you accepted through your counsel. Paragraphs 3 to 7 goes to the gist of the offending and recited below in verbatim:
  2. It is uncontested that the alleged reference to murder in the post is in regards to the assassination of the late Luagalau Levaula Kamu (“Late Levaula”) on 16/07/99.

The Accused

  1. You are a 45-year-old male of Sinamoga, Vailoa Aleipata and Sydney Australia, married with four children. I am informed you are a matai of your village.[1] You were born and raised at Vailoa Aleipata but in 1992 you moved to New Zealand, then Australia where you now reside with your family. Prior to your trip to Samoa in February this year, you were employed in Sydney but unemployed since you have been here in Samoa. You are also an entertainer under the stage name “King Faipopo”.
  2. In February this year, you traveled to Samoa to attend your mother’s funeral but was subsequently detained and charged with the original offences that were withdrawn by leave. You reoffended with this offence whilst on bail. At the moment you are in custody with another co-accused on criminal counts before the Supreme Court relating inter alia to allegations of conspiracy to assassinate the victim.

Victim

  1. The victim is Tuilaepa Lupesoliai Neioti Aiono Dr. Sailele Malielegaoi (“the Victim”), married with eight children, grandchildren and great grandchildren. He is Catholic and he hails from the village of Lepa where he was born and raised but he resides with his family at Ululoloa. He holds matai titles from the villages of Lepa, Falevao, Aufaga, Fasitoo-Uta and Vaitele. He attended Marist brothers, St Joseph’s College, St Pauls College in Auckland and finally Auckland University where he graduated with a Bachelor of Commerce and Masters in Commerce.
  2. He is the current Member of Parliament for Lepa and has been the Prime Minister of Samoa for 21 years since 1998. He is also the leader of this country and the ruling Human Rights Political Party. He first entered politics in 1981 as Member of Parliament for Lepa and has held various ministerial posts in the past including deputy Prime Minister. Prior to entering politics, he served in government departments such as Treasury and was a chairman of various organisations in Samoa and internationally. He was also a former General secretariat in Brussels, Belgium and a recipient of honorary awards here and abroad[2].

Submissions

  1. Malele, you applied for a discharge without conviction (“Discharge”) under sections 69 and 70 Sentencing Act 2016 (“SA”). Prosecution opposes the application and seek a conviction and custodial sentence.
  2. During the hearing of your application to vacate of plea, I had asked your counsel if you were still pursuing this application and she confirmed that you are. You argue that Prosecution during your plea negotiations, had indicated that they would be taking a neutral stance on your application to discharge. But you were caught by surprise when you received their sentencing memorandum and noted they proposed instead a custodial sentence.
  3. I have already touched on this aspect in the change of plea ruling which also applies here. I must also add that the record clearly shows that on the day of the change of plea (23/07/19), Ms. Fuimaono Sapolu on your behalf had indicated your wish to file a discharge application and that Prosecution was amenable to this. However, Mr. Retzlaff for the Prosecution rose and clearly replied that they take a neutral stance on the proposed application.
  4. As discussed in the vacate of plea ruling, the Attorney General’s letter of 22/07/19 clearly informed your side of Prosecution’s true position to the discharge application; that they could take a neutral stance provided that all goes well with the Restorative Justice Conference (“RJC”) including apologies being rendered and accepted. Prosecution later elaborated that it was crucial from their stand point, that the RJC proceeded and if successful it would assist curb the harm on the victim and deter the likelihood of reoffending. However, the RJC as we all know did not take place and it was with the endorsement of your side via counsel, Ms. Fuimaono Sapolu, given the recommendation by Dr Ioane in the Pre meeting for RJC Report (“RJC Report”).
  5. I must remind counsel that regardless of an agreement you come up with on sentence, at the end of the day, you must keep in mind that such agreement does not bind the Court. A suggestion that it does has the tendency to abdicate the functions and the duties of this Court to the rule of law and whittle its discretion to pass appropriate sentences as justice requires in each case. You must all remember that the Court has the sole discretion to pass sentence. You do not dictate this, Malele. Even if the Prosecution consented to a discharge proposal, the Court still has a duty to determine and assess whether the disproportionality test for a discharge application is satisfied.
  6. I will now turn to consider the application for a discharge.

Law on Discharge without Conviction

  1. As I said in a number of discharge cases I dealt with,[3] section 11 SA provides that where an accused is found guilty or pleads guilty, to an offence, then before entering a conviction and imposing sentence, the Court must consider first whether such an accused would be more appropriately dealt with by a discharge under sections 69 and 70 SA. This is a mandatory requirement that a Court must consider. As the Court of Appeal in AG v Chang[4] observed “it appears from section 11 that in every case the Court is to consider the probability of a discharge without conviction.” I also remind myself of s11 (2) SA relating to the presumption to impose a conviction.
  2. Section 69 (1) SA gives a Court discretion to discharge an accused found guilty of; or who has pleaded guilty to an offence unless a court is required to impose a minimum sentence. A Court may also order the payment of costs[5] and impose any other order as it would a conviction.[6] A dischis deemed an acquittquittal.[7]
  3. Section 70 SA70 SA provides as follows:
  4. The law on an application for a discharge and how to approach it is well established both by legislative provision and case law. The test was laid down by rormer CJ Sapolu in P v Papalii and Moalele[8].
  5. As I said in previous discharge cases,[9] an application for a discharge under sections 69 and 70 involves two stages as recognised in Chang.[10] The first stage involves an assessment of the three-step test under s70 or the disproportionality test. I refer to this as a precondition or gateway that must be met first before s69 kicks in. The second stage involves the Court exercising the residual discretion under s69 as to whether a discharge should be granted or denied.
  6. The approach is best summarised in the often-quoted passage below by Arnold J in Z v R[11] which I adopted in Lauina and other cases[12]:
  7. Recently, in AG v Ropati[13] the Court of Appeal there acknowledged that the correct approach to ss 69 and 70 is not in doubt and has been summarised in various ways. They also observed that in a case such as Ropati, the approach can be usefully broken down into four steps namely:
  8. In my respectful view, whichever approach taken, it is crucial to remember that the discretion in s69 to discharge an offender is subject to the test under s70 being satisfied first. In other words, it is only when the disproportionality test in s70 is met, that the Court then exercises the discretion to discharge under s69.
  9. In that regard, I still prefer to follow the helpful and practical approach I adopted in Lauina[14] and other cases from Z v R[15] of firstly assessing the three step disproportionality test under s70 (steps (a) to (c) in 23 above), before moving to the second stage of assessing whether the discretion to discharge ought to be exercised under s69 (step (d)). In doing so, I remind myself that there is no onus of proof on you Malele as accused to establish the disproportionality test.
  10. I remind myself of the Court of Appeal’s observation in Chang that a Judge must exercise his or her statutory discretion to discharge an accused, by balancing the direct and indirect consequences of a conviction to an accused, against the gravity of the offending. I bear in mind that the proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment.[16]
  11. Having expounded the legal principles on a discharge application, I will now turn to consider the three-step test, as it is the assessment of those steps that will ultimately determine my conclusion of whether a discharge should be granted. I will start with the gravity of the offence.

Gravity of the Offence

  1. You argue the offence is relatively minor. Prosecution on the hand contends the gravity is serious.
  2. As alluded to earlier,[17] in assessing the gravity or seriousness of the offence, the Court must consider all the aggravating and mitigating factors relating to the offending and you Malele as offender. I remind myself that the assessment of the gravity of the offence is in relation to your particular offending (as in the specific facts) but not how it measures to other comparable cases.
  3. I also bear in mind that although s70 refers to the gravity of the offence, case authorities have established that offences are not considered in a vacuum. It is necessary to look at the offending itself and assess the reaction of an accused to it, as well as the matters that may generally affect the Court’s assessment of culpability.[18] Thus, the importance of considering the aggravating and mitigating factors at this stage.

Aggravating factors

  1. Prosecution submits that the aggravating features of your offending includes:
  2. Your Counsel submits the aggravating factors are that:
  3. I do not accept the proposition from your side that the harm to the victim is already incorporated into the offence and if this Court is to consider it as a distinct aggravating factor, it will amount to double jeopardy. I am perplexed by this suggestion. Not only is it confusing but misconceived. Double jeopardy does not even come into play. The harm to a victim is a distinct aggravating factor that this Court is obligated by law under s7 (1) (d) SA to take into account.
  4. There are a number of aggravating features of your offending including those outlined by the Prosecution in paragraph 31 above. The penalty prescribed by Parliament for this offence is a fine not exceeding 175 penalty units (SAT$17,500), or a term of imprisonment not exceeding 3 months. The fact that the penalty imposed is a custodial term or maximum fine in the sum stipulated indicates that Parliament views this offence as serious. However, as I said in other cases of this nature, the severity of the penalty is not the sole determining factor for assessing the gravity of the offence or degree of culpability of an accused.[19] The Court usually looks beyond the generic severity of the penalty and consider all relevant factors of the offending.
  5. It is common ground that the offence was committed whilst you were on bail for the original charges.[20] One of the key considerations of bail for any accused is the risk of reoffending.[21] Despite this possibility you were still granted bail on the belief and trust that you would not reoffend. But you did. Aggravating to your reoffending is the fact that it targeted the same victim and advances similar accusations you have been singing all along.
  6. As seen here, the actions leading to your facing the original charges derived from your publishing on YouTube platform and your Facebook (FB) timeline, a video clip alleging inter alia that the victim is a thief, gun smuggler, liar and murderer. The same theme or message is carried forward to the post you published on your FB timeline at 10.26am on 17/05/19 (“The Post”); which as the Prosecution correctly pointed out refers to your Court case already before this Court relating to the original charges.
  7. At the time of the offending, you knew very well that your case was adjourned to 27/05/19 for hearing your application on the extraterritorial jurisdiction of this Court to deal with the original charges. My reserved ruling on that application was pending for delivery on 31/05/19. But even with that knowledge and the fact you were released on strict bail conditions, you still published the post on your FB timeline.
  8. The offending was intentional and premeditated. This was not some impromptu, accidental post or honest mistake or even an inadvertent error. You had thought it through, rehearsed your lines like a White Sunday tauloto and even dressed the part to go with the image of the celebrity superstar you think you are. It is not the first time you have done this. It is a repeated offending. You had done it previously in the video clips you digitally published on social media via YouTube and your FB page forming the original charges you faced. This was but an extension of that offending.
  9. The post is not your ordinary published letter to a mainstream newspaper editor or third party where the number of viewers is limited. It was published on a social media platform that is globally and publicly accessible to your FB friends, their friends and others, as is the beauty of the internet; automated, fast, instantaneous and effective. Once posted it is immediately viewed by others and shared with ease at the click of the button.
  10. The exhibit evidence of that publication annexed to the SOF shows that at the time of printing, 636 people had reacted to the post. Furthermore, it was shared 62 times. I am certain it was further shared by other FB users especially your FB friends and those supporting your cause. Another possible form of dissemination of this false information is by screenshotting the post on smartphones or other gadgets to share electronically.
  11. The idea of sharing information on Facebook and other social media platforms like YouTube, is to maximize dissemination to gauge more audience online. In this instance therefore, each share reverberates the false information you deliberately posted online amplifying the situation. Facebook has no control over this, only you as you own the FB page and would have set your privacy setting to enable accessibility and sharing by other FB users. In fact, I have seen the video clips forming the original charges disclosed with the trial documents and you actually encourage your followers and viewers to “share, share, share”. Those footages are linked to these charges as you acceded in the SOF.[22]
  12. The moral of the story is; your defaming publications have had a far-reaching audience with the impact instantaneous. The internet, after all has a vast repository of information. To illustrate this point further, recent statistics released by Facebook on 27 July 2019 available on Doctor Google reveals that worldwide, there were over 2.41 billion monthly active users (MAU) as of June 2019.[23] This was an 8 percent increase in FB MAUs compared to year after year. So it is obvious there is an alarming increase in active FB users and undoubtedly, Samoans here and abroad definitely form a percentage of the statistics.
  13. The post of 17/05/19 generated a thread of 101 commentaries from your supporters (including your lawyer Ms. Iuni Sapolu and yofe), where the victim was fwas further harassed, ridiculed, belittled and made the laughing stock and subject of cyber bullying. In fact, some of the comments used profanity and colourful expletives even space in this decision to describe it would be a total waste of time. I will return to this later.
  14. The post remained on your FB timeline even after you were charged. A report disclosed with the trial documents by Giovanni Krueger dated 21/07/19 confirmed that as of that date, the post was still on your FB page under the name “Malele Paulo.” In fact, some of the video footages you published online regarding the same allegations against the victim is still accessible today on YouTube and Google. You deposed however in your affidavit in support of your discharge application that someone hacked your FB page where this was posted so you could not remove it.
  15. I do not believe you. Had you thought proper to delete the video clips and post when charged with this offence to mitigate your offending, you would have acted promptly. But you did not. Instead you came up with this excuse that your page was hacked at the 11th hour. But even a hacked FB page can be recovered relatively easy by following the steps available on Facebook and Google. I am well aware that Facebook also has a Hacked Accounts section in their Help Centre to assist their users access and regain control of their accounts. Facebook digital experts thought about all these tools and mechanisms to ensure its users can log back into their accounts thereby optimizing their experience on their platform.
  16. Unless of course your FB page is seen or reported to Facebook as breaching their Community Standard Guideline Principles such as generating fake news, hate speech, cyber bullying and defamation which may expose them to expensive lawsuits. After all they have had their share of such suits with large settlements awarded. On such occasion, Facebook would move to shut down the impugned page.
  17. I am also aware that Facebook has a defamation reporting form on their platform for those injured by false posts to complete and submit. Believe me I do know a thing or two about Facebook and other social media platforms. I made it my business to educate myself on its mechanics to keep me appraised with social media and the modern digital world we live in. So, your saying that your FB page was hacked, is but another attempt to flout responsibility. It also indicates your continuous refusal to take positive steps to mitigate the sting of the harm you inflicted on the victim.
  18. The contents of the post were false, malicious, inflammatory, inciteful, insulting, abusive and calculated to injure and vilify the victim exposing him to contempt and hatred. Your actions can only be described as a wilful misrepresentation. It was an intentional sophistry calculated to manipulate and mislead the public especially the unwary and ignorant by means of contumelious harassment and bullying. As I said, it was contemplated to vilify the victim exposing him to contempt and hatred. This is evident from the commentaries on your post.
  19. The fact that you pleaded guilty means you admitted the falsity of the statement you made. There is no truth at all in the post you published rather it was a mixture of fake news riddled with deliberate lies intended to expose the victim to unnecessary shame, hatred, contempt and ridicule. As I said above, we most certainly saw this in the thread of commentaries incited by your post. It is character assassination at its worst.
  20. The injury to the victim, his family (immediate and extended), village, constituency and community is not minor or minimal. It is grave, significant and irreparable. It is irreparable because as our Samoan say goes, “e pala le maa ae le pala le tala” (Stones will erode but words will never decay). No amount of penalty or monetary compensation for damages will erase the defamatory words you deliberately posted and disseminated.
  21. The post caused emotional turmoil, psychological trauma, anxiety and distress to the victim especially his family. As Samoans, we have a natural instinct to protect those we love when attacked. I have certainly seen in my day growing up in the village, arguments and fights arising from someone spreading false rumours against another.
  22. The post in my view, must have generated mixed emotions, inciting resentment and animosity amongst those close to the victim wishing to seek revenge. Fortunately, this did not occur partly because the victim would have played a role in the maintenance of peace and order including calming and reassuring his family and community.[24] As we know, an offence by or against one of our own in accordance with our faasamoa is seen as an offence by and against the collective. It is within that cultural context that a sanction such as banishment or ostracism dished out by a village council is imposed on the family of a transgressor as opposed to the individual alone.
  23. Your side however downplayed the magnitude of the harm saying it is relatively low given it is not physical but just words. This is unsurprising as according to the RJC Report, you spoke more about the harm to yourself than the impact of the harm on the victim. You also expressed the view that you had been harmed and hurt by the Constitution. Again, this shows your lack of repentance and remorse, coupled with your refusal to take accountability for the offending. Instead of acknowledging the harm to the victim, you spoke about the so-called harm to yourself like you have done nothing wrong.
  24. In Court, your counsel submitted that there are worst crimes out there including violence against women and children and this is only minor compared. The submission is at best a political statement to attract more limelight and made for the benefit of the media present in Court at the time. It is therefore irrelevant to the circumstances of your offending and unmeritorious.
  25. As I commented in open Court, those cases your counsel referred to are distinguished and not comparable here. This is a stand - alone offence on its own. It is the first of its kind. The charge is about a person’s reputation which is a reasonable limitation to the right to freedom of expression protected under Article 13 of the Constitution. We Samoans place much emphasis on protecting our integrity, dignity, good name and wellbeing. It is called in our language “o le faatauaina o paia ma mamalu po’o faatamali’iga o se tagata”.
  26. It took years for a person like the victim to build and earn a good reputation locally and internationally. I had briefly outlined the victim’s profile and biography to reflect some of his achievements and accolades. It is unquestionable he worked hard to get to where he is now. But it takes only split seconds to ruin his reputation by people like you. As the Court of Appeal observed in Malifa v Sapolu and Alesana:[25]
  27. It is glaring your offending in every sense of the word crossed the line of freedom of expression. The post was not a severe criticism; rather it was “vilification or character assassination.” So it falls on the other side of the spectrum. The fact of the matter is, the victim who is normally unrattled by endless severe criticisms against him was so deeply affected that he was prompted to file this complaint to right the wrong you inflicted and to clear his good name you tarnished. His Victim Impact Report (“VIR”) similarly reflects this.
  28. The post called the victim names (ai ake, pepelo, coward), and labeled him a criminal murderer. As mentioned in the vacate of plea ruling, your counsel was questioned as to the evidence you propose to rely on to substantiate the truthfulness of your post. She replied that you will be relying on a letter (“The Letter”) purported to be written by the victim as well as your subjective belief of the truth as you were led to believe from that letter; then Prosecution has the onus to rebut it. Ms. Sapolu was pressed further if she had a copy of the letter and she replied NO but that it was the same letter circulating on social media. She was then asked if it was the same letter forming a number of adverse publications against the victim on the Ole Palemia blog (“OLP”) she confirmed that it was.
  29. But as I said in the vacate of plea ruling, the letter would be subject to usual rules of evidence on admissibility had the case proceeded to trial. Hearsay, reliability and authenticity would be live issues. As I said in my ruling as well, it is not enough for your side to rely on the statutory defence of the “truth” without evidence. You cannot call someone a murderer and other names, then sit back, relax and expect the Prosecution to find the evidence to rebut it. The administration of justice does not operate that way. You still play a vital role to raise a reasonable doubt.
  30. I repeat here for convenience what I said in the vacate of plea ruling, to further hammer home this point if it has not sunk in already. It is uncontested that Police investigations into the tragic assassination of the late Luagalau concluded 20 years ago. The news of the assassination shocked the nation, Pacific region and international communities. It was a tragedy no one ever anticipated occur in our small paradise. It shook our people and nation. Every single Samoan old enough at the time, knew about it.
  31. You were a month short of your 26th birthday when the assassination occurred so you would have known about it. Similarly, your senior counsel, being a lawyer would have known about it. It made the headline news here and internationally. National security was a concern. During the trial more than 50 police officers were deployed in what was called “judgment operation” to ensure the security of judicial officers, witnesses and everyone involved. In fact, a key witness namely Eneliko Visesio had to be evacuated under Government’s protection to NZ for his safety pending his testimony in Court. These events were all public knowledge.
  32. Your mate Alatise Vitale (“Alatise”) did time for the assassination after he pleaded guilty to murder. He was sentenced to death but this was commuted to life imprisonment. Two former Cabinet members, To’i Aokuso and Leafa Vitale were also charged. After three months of trial, in April 2000 it was concluded with the two convicted of the offences. They were sentenced to death but commuted to life imprisonment. I take judicial notice of those court proceedings and the evidence on record pursuant to sections 122 and 130 Evidence Act 2015.
  33. However, despite this background, through your posts, you persisted with your allegations that the victim had a part to play in the assassination of the late Luagalau. But there is simply no truth to this. It is all false. I am well aware that at the time, three New Zealand detectives and a forensic scientist were brought in to assist with Police investigations. Had Police at the time thought the victim had some sort of an involvement they would have surely charged him. But there was no shred of evidence to that effect.
  34. In fact, it is publicly recorded that there was a hitlist of people targeted for assassination. At the top of that list was the victim Tuilaepa. Evidence of that hitlist was led from the Prosecution’s key witness, Eneliko Visesio. Trial documents disclosed by Prosecution for this case also has a witness statement by the same Eneliko Visesio again alluding to the hit list To’i Aokuso had given him where the victim was at the top of that list for him as hitman to target.
  35. However, your side failed completely to take the above background into account when you continuously professed the truthfulness of your allegations. This also aggravates the offence.
  36. I have no doubt that the offending would have resulted in further harm to the family of the late Luagalau. The post plus your insistence on the truth of your expression and urgings for the matter to proceed to trial has the potential of opening old wounds that are healing, rehashing the grief, emotional and psychological trauma Luagalau’s family are recovering from due to the untimely loss of their loved one. Yet you declared many times the late Luagalau is your uncle. Whatever lenses one uses, either cultural, legal or spiritual, your actions were simply cruel and insensitive. This also aggravates your offending.

Mitigating Factors

  1. In terms of the factors mitigating the offence, there are none. In regards to the factors mitigating sentence, these include your guilty plea and good character as indicated in your first offender status. I will not give full credit to your guilty plea as I would an early plea given it was delayed, then you reneged and sought to retract it.
  2. I also take into account your personal circumstances. You are a family man, married with four children you have not seen, since you left Australia at the start of the year. You are an entertainer and employed whilst in Australia in the construction field but unemployed here. It is obvious you are struggling financially. You left Samoa in 1992, so you are not a contributing member of this community nor a tax payer.
  3. You had written a letter apologising to the victim and Court. Your affidavit similarly echoes the same apology. But I doubt the authenticity and genuineness of your remorse. I say this because of your actions to date. I refer to the RJC Report where Dr Ioane observed having met with you, that you are unable to apologise with authenticity. The last-minute move to reverse your plea similarly indicates lack of remorse. I quote the following passage from Dr Ioane’s RJC Report:
  4. In Court during the vacate of plea hearing, you had voiced via counsel your concerns that the victim had openly remarked on television that you apologized when you did not. As I reminded your counsel, I am not concerned about whatever is being said outside of this Court room. In any event, you did write a letter of apology to support your discharge application which is on record. So the victim was not lying about that. You did write that letter.
  5. But as I said, I doubt the authenticity of your apology. An apology has to be voluntary and come from the heart. In my view however, the letter of apology is only window dressing. It was written with the sole purpose of appeasing and misleading the Court into believing that you are genuinely remorseful so I could be more lenient towards a discharge when in actual fact you are not.
  6. Your counsel submits that there was provocation of some sort mitigating the offence. The argument being that you had come to Samoa earlier this year to attend your mum’s funeral but had to face stringent bail conditions and almost missed your mum’s burial. Also, the treatment you received whilst on bail and the manner you were dealt with by Police and the victim as Minister for the Ministry of Police, provoked you to do the second post.
  7. I am baffled by this submission which is untenable. In fact, it is overly exaggerated and dramatic. I remind you and your counsel that you are not starring in a movie. What you allege here illustrates continuous ill will and bad faith on your part, Malele. The funeral, arrest and bail all took place in February. Why you waited until May to make another post and claim you were provoked by incidents which allegedly took place three months earlier is beyond comprehension. The time lapse, suggests remoteness and lack of contemporaneity. Furthermore, these alleged occurrences you claimed, were after you posted the video forming the basis of the original charges.
  8. I also have on record a statement by Detective Inspector Efo Moalele Tuua dated 7/08/19, rebutting the allegation that you were unfairly treated by Police. Your side did not voice any issues with this statement. According to Detective Tuua you were treated like any other accused. Also, there was no contact between Police and yourself from the first arrest on 8/02/19, to the latter arrest in May. She further stated there was no attempt by the victim in his role as Minister of Police to influence their investigations. In fact, it was members of the public who brought to their attention, the post you published in May leading to your arrest.
  9. I do not accept that any of the matters you allege amounts to provocation leading to your making the post to lash out. There is simply no merit in your unsubstantiated allegations. Even if it were true, it does not justify your publishing another post knowing full well you were released on strict bail conditions. Anyone on bail with a common sense would have refrained from doing so.
  10. But you deliberately opted to publish another libellous post against the victim geared towards the court appearance on 27/05/19. It took an order from this Court forbidding your publishing any more adverse posts on social media to put a temporary stop to it. Prior to this, you remained relentless on your crusade to assassinate the character of the victim.
  11. But I am telling you Malele, as an accused, you have no business coaxing, urging or intimidating the victim to attend Court. It is up to the victim and Prosecution whether he appears or not. The sole discretion rests with the Prosecution to decide whether to call the victim as a witness. It is not your job to interfere with the cause of justice which is an offence in and of itself.
  12. You claim you have been harmed. In my view however, you are the architect of your own demise not anyone else. As the captain of your own ship, you chose the direction to navigate it. So, whether it stays afloat or sink, you have only yourself to blame.
  13. Considering all the circumstances, I view the gravity of your offending to be significant and on the highest end of the scale. I will now consider the second step of the test.

Consequences of a Conviction

  1. As I said in Lauina and other cases[26], the threshold test for the consequences to be taken into account was explained in the NZ Court of Appeal case of DC v R[27] and High Court case of Iosefa v NZ Police[28] where the Court there observed that:
  2. As I said in previous cases,[29] there is no positive onus of proof on you Malele as accused. The test is simply the Court must be satisfied of the consequences. It is expected however that those seeking a discharge should place before the Court sufficient information to support the repercussions relied upon. Submission by Counsel as to the consequences is insufficient to qualify as information for the purpose of a discharge.[30] Prosecution may also file evidence in rebuttal to substantiate their argument.
  3. You filed an affidavit in support of your discharge application. At paragraph 8, you deposed that you are a family man, married with four children, and that you reside in Australia, but have been in Samoa since January this year due to this case. At paragraph 9, you depose you have been out of work for some time and wish to get back to it but this will be difficult if a conviction is entered. You also say you have no conviction in Australia, NZ and Samoa.
  4. So it seems that the primary ground is the concern that you may not be able to retain your employment plus you have had a clean record in all three countries you are connected to. Other than that, there is no evidence to substantiate the direct or indirect consequences of a conviction that may adversely affect you.
  5. Prosecution however has filed a statement dated 7/08/19 by Corporal Giovanni Krueger to rebut the claim that a conviction will be an impediment to your retaining your job. According to Corporal Krueger, he conducted a research into the Australian government policies on the types of employment where a conviction would have an impact of the sort you allege. One of the exhibit notes stated that it is fundamental that employers establish what aspect of the criminal conduct relates directly to the nature of the job. Also, the criminal convictions that may likely have an impact on employment opportunities include offences relating to sexual misconduct, dishonesty and theft.
  6. From that evidence, I deduce that your employment in construction is not affected if a conviction is entered. But then again it comes down to the employment’s requirements. In my view, a conviction would not pose as a death sentence or absolute bar to your gaining employment in Australia when you return.
  7. As I said in other cases, it is not enough for an accused to come to Court and say a certain consequence may occur without providing information to substantiate it for example a letter from your employment that you will be terminated if a conviction is entered. But even if such a letter was to be made available, I am still required by law to weigh the alleged consequences against the gravity of the offending.
  8. Moreover, just because you have a clean slate does not necessarily prevent the Court from entering a conviction in your name. If this argument were to be embraced in every discharge application, then it means every first offender will get off without a conviction despite the severity of the offence. This is a dangerous proposition that is not conducive to justice and one I will not entertain.
  9. Having assessed the material facts pertinent to this step, I am not at all satisfied that there is a real and appreciable risk of the consequences you rely on occurring.

Are the Consequences of a Conviction out of all Proportion to the gravity of the offending?

  1. The simple answer to the above question is no. But even if I accept the consequences you relied on, I would still hold that these are not disproportionate to the gravity of the offending; not only for the reasons canvassed here, but also the purposes and principles of sentencing which I will touch on shortly.
  2. I now turn to assess whether the residual discretion under s69 ought to be granted.

Should you be discharged without conviction?

  1. On the basis of what I said above and given the circumstances of your offending and significant level of culpability. I therefore hold that the three-step test has not been satisfied. It follows that I will not exercise the discretion under s 69 SA to discharge you without conviction. I therefore decline your application for a discharge recording that your offending here is by no means trifling in nature as you argue.
  2. To discharge you without conviction is to send out the wrong message to the public especially ghost bloggers and keyboard warriors who are misusing the internet and social media to disseminate fake news, hate speech and cyber bullying that it is okay to defame someone’s character, and easily walk away with a discharge. This will not happen on my watch. It is definitely not in the interest of justice or the public at all to dish out a discharge. To do so would be far too dangerous contributing to encouraging this type of criminal conduct that should be viewed with abhorrence and must be stamped out.
  3. This brings discussion to an appropriate sentence for you.

Appropriate sentence

  1. During the vacate of plea hearing on Tuesday 15/10/19, your counsel was questioned as to an alternative sentence for you if I decline your discharge application. She proposed a suspended sentence or your coming up for sentence in 12 months. Prosecution however maintained their recommendation for an imprisonment term. They suggested a starting time of 14 days with an end sentence of 7 days after taking into account the mitigating factors.
  2. In sentencing you, I bear in mind the purposes of sentencing under s5 SA. The relevant ones include holding you accountable for the harm done to the victim and community by your offending; to promote in you a sense of responsibility and acknowledgement of the harm; provide for the interest of the victim; denounce the conduct you were involved in and deter you and others from committing the same offence. The principles of sentence I must consider are those set down in s6 SA.
  3. I will return to your penalty shorty. In the meantime, for completion, I turn to address some of the crucial pertinent issues arising from this matter.

Cybercrime

  1. We are living through some challenging times with connectivity to the internet a part of our household appliances. But with that comes cyber security concerns. Safety online is a worldwide phenomenon every single country is striving to achieve.
  2. For us here in the Pacific, we are particularly vulnerable given our geographical isolation from the rest of the world and lack of legislative frameworks to counter cybercrimes. In a move to strengthen our legislative framework and reform the law to combat cybercrime, Government is in the process of finalizing Samoa’s accession to the Council of Europe Convention on Cybercrime or the Budapest Convention.
  3. This international treaty harmonises national laws, improves investigative skills and increases mutual cooperation amongst nations. It also provides for procedural powers to allow a foreign State to request the preservation of traffic and content data in anticipation of a request for access to that information. Its main focus is on crimes committed on the internet and computer devices such as hate crimes, computer related fraud, infringement of copyrightError! Hyperlink reference not valid. child pornography and violations of network security.[31] A policy paper has been released canv canvassing inter alia the proposed reforms to our legislation. A draft Bill is also in progress.
  4. The move to accession of this Treaty and to reform cyber safety laws is welcomed by this Court as it would very much assist combat cybercrime of this nature. This is especially crucial since traditional criminal laws cannot sufficiently cater for the sophisticated and technical nature of electronic generated crimes. Until then, we are left to make do with what we have at the moment.

Criminal Libel and Freedom of Expression

  1. As we all know, the common law offence of criminal libel was repealed when the Crimes Act 2013 was enacted. However, it was reintroduced in our legislative framework in December 2017 as seen in s117A CA. The provision codifies the offence compared to the previous regime. Notably it imposes a shorter maximum imprisonment penalty of 3 months compared to six months under the repealed enactment.
  2. The revival of criminal libel came with strong opposition by the media and some members of the public at the local and international level. The debate included the argument that the civil action for defamation serves the same purpose and provides sufficient remedy for damages.[32] Others were concerned that its resurrection would be a step back in time; likely to infringe on the Constitutional right to freedom of expression and opinion. I have certainly heard in passing you Malele, claiming that you were expressing such fundamental right when you published the post. Submission from your counsel similarly touched on this. For completion I will briefly discuss the inherent dichotomy between defamation and freedom of expression to clear this confusion.
  3. I disagree with the assertion that the civil suit for defamation is enough to cater for wrong doings against individuals. Criminal law is the law which members of any society “can place their ultimate reliance against all deepest injuries that human conduct can inflict on individuals and institutions.”[33] In other words, it is the law that is accessible to all members of the public especially those who are poor and cannot afford a civil suit. In the Canadian case of R v Steven[34] the Supreme Court there stated that:
  4. The Court in Stevens[35] also referred to an article by J R Spencer called “The Press and Reform for Criminal Libel[36] where he expressed the view that:
  5. In “Criminal Libel: The Law Commission’s Working Paper,”[37] Spencer continued in the same vein as again quoted in Stevens:[38]
  6. The Court in Stevens[39] observed that:
  7. In both Stevens[40] and another Canadian case of R v Lucas,[41] the Courts there analysed in detail the purpose of their criminal libel enactment. The same cases were referred to with approval by Justice Moran in the Supreme Court case of Malifa v Sapolu & Alesana[42] and I do the same here. Malifa was the first recorded criminal libel case under the repealed enactment. The case there was about a complaint by Tofilau Eti Alesana, former Prime Minister regarding a publication in the Samoa Observer newspaper of a letter by a third party that was claimed to be criminally defamatory. The case went through a series of preliminary applications including a constitutional challenge.
  8. In Lucas Justice Cory delivering the decision of the Court posed the question of whether the protection of reputation was a pressing and substantial objective in society? The Court answered this in the affirmative saying:
  9. Lucas and Malifa also referred to the case of Hill v Church of Scientology of Toronto[43] where the following passage was recited emphasizing the importance in a democratic society protecting the good reputation of individuals:
  10. I endorse the above passages as also accurately capturing the importance of protecting the reputation of an individual in Samoan society and democracy.
  11. As alluded to earlier, our cultural values and norms places much importance on our dignity and integrity as individuals and members of our collective families and communities. The intrinsic values of ava, faaaloalo, alofa, va fealoai (which goes hand in hand with the maintenance of peace and harmony) and humility are at the core of our wellbeing as Samoans. These values are instilled in us from a young age. From the moment we are born, we are taught how to stand, walk, talk and uphold ourselves. The famous saying that comes to mind is “E iloa le Samoa i lana tu, tautala ma lana savali.” Respecting our elders and those in authority or leadership is naturally acquired. I note with concern however, these cultural values are not mirrored at all in your behaviour, Malele.
  12. In sum, the good reputation, dignity and integrity of a Samoan is guarded with utmost due care. As Justice Moran acknowledged in Malifa:[44]
  13. This is especially true in the circumstances of this case. Justice Moran in Malifa,[45] concluded that “whatever may be levelled at the law of criminal libel in Samoa, it cannot be said to be arbitrary, unfair or based on unreasonable considerations.”
  14. I have canvassed this historical synopsis on the law and our cultural context to remind us all of the value of our reputation. It is the same value, implicit in the criminal libel enactment; it is the same value, the victim is striving to protect by bringing this prosecution as a matter of public interest.
  15. Article 13 (1) (a) Constitution deals with the right of all citizens of Samoa to freedom of speech and expression. But this freedom or right has its limitations. It is not absolute.[46] According to the proviso under sub clause (2) the freedom is subject to reasonable restrictions and penalties imposed by law the State passes in the interest of public order or ...for preventing defamation...Article 13 remains unchanged from its inception to date.
  16. As was said in Stevens:[47]
  17. The retention of criminal libel under the repealed legislation and its reintroduction in 2017 in my respectful view reinforces the recognition by our community of the fundamental importance of reputation and inherent dignity of all persons. But we are not alone in that regard. After all, the protection of reputation in the form of criminal libel is similarly recognized by other free and democratic societies including, Canada, Australia, Belgium, Denmark, France, Netherlands, Norway, Sweden and Switzerland.
  18. The same protection to reputation is recognized in international human rights agreements Samoa ratified as a member of the United Nations. This include the International Covenant on Civil and Political Rights (ICCPR). The relevant clauses dealing with the protection of reputation and dignity are Articles 17(1) and (19). I endorse the words of Justice Gory in Lucas,[48] where he said “clearly, the protection of reputation is widely recognized as an important legislative endeavour.”

This Case

  1. Having expounded the above, the publication you posted was severe and crossed the line of freedom of expression. It is one thing to expound expressions conducive to legitimate debate in the spirit of freedom of expression. It is quite another to vilify the character of an individual.
  2. It is not an excuse or justification either as many seem to claim to say, that it is okay to freely trade harassing and insulting comments online, given the nature and culture of the internet allows for more robust comments than elsewhere.[49] This is a misconception that must be corrected. Internet publications is no different from other forms of universal publications; for example, on newspapers, television and radio broadcastings, magazines and so forth.[50] As I have canvassed in this decision, the principles of defamation law and criminal libel similarly applies to online expressions. So, every individual is obligated by law to observe this.
  3. In the New Zealand civil case of O’Brien v Brown[51] the Court there had this to say about online publications which equally applies here:
  4. As I said before, the post intended to lower the victim, in the minds of right-thinking members of society including his fellow politicians and members of international communities. In his role as leader of this country, it is inevitable the post would have had this adverse impact.
  5. In the RJC Report, Dr Ioane observed the following about you Malele:
  6. In my view, the post was used to propagate political interests and hidden agendas of yourself Malele and those you are associated with. This view is supported by the passage above and your admission to Dr Ioane, as recorded in the RJC report, that you described yourself as the voice of the voiceless. In addition, you acknowledged the support of the OLP bloggers and SSIG. So, there is no doubt you are associated with these two groups.
  7. The SSIG or Samoa Solidarity International Group is a non-government organization[52] with its main agenda being saving Samoa and customary land. The OLP blog is a fake Facebook page of anonymous ghost-writers similar to a gossip column generating fake news. It is known for its malicious character assassination blogs and crusade against the victim, prominent Government and public officials and private individuals. The page however has no legal standing or credibility and unreliable. It is therefore unworthy of discussion in this decision.
  8. I must say however, I do not have any admiration for anonymous bloggers and fake pages. If anyone wants to openly criticize the victim, Government and whoever else, do not hide behind a keyboard but put your name on it like what the Samoa Observer newspaper is doing. They openly criticize provided it is the truth. In return they get criticized by the victim but at least we all know the identity of those involved. So long as it is the truth you are protected. But fake news, culminating in character assassination and cyber bullying crosses the line. As was said in Stevens:[53]
  9. The RJC Report further recorded that you are passionate about achieving righteousness. You also described the harm you allegedly experienced with the court processes and your concerns for the future of Samoa. You pray the victim will change his mind about the legislative matters to do with land matters. Again, this further seal my view of your true motive and agenda which is politically driven and hence your ultimate persistence to vilify the victim.
  10. Malele, if you want to make changes to this country, run for the General Elections if you are eligible. But embarking on character assassination based on fabricated lies as you have done here, is not the answer; leave a rainbow in the cloud, not the other way around.
  11. The offence here carries a penalty of a maximum fine of 175 penalty units (ST$17,500) or 3 months’ imprisonment. Clearly, it is not my job to reform the law. That rests with Parliament. I am also mindful of the principles of separation of power. However, as a way forward, Parliament might wish to look for guidance towards Canada, Australia and other countries[54] regarding their statutory penalties for criminal libel, to see if it is appropriate to review this. This is particularly pressing at the moment given the increasing volume of online defamation, as well as incidents of cyberbullying and harassment. Deterrence of this type of offending is a must.
  12. I also note Germany recently strengthened their cyber security laws, with the enactment of the Network Enforcement Act 2017, where social media platforms like Facebook, YouTube, Twitter would face a $58 million fine if obviously illegal material including hate speech, defamation and incitement of violence is not removed within 24 hours of receipt of the complaint.
  13. I also refer to Facebook’s Community Standards Guideline outlining expressions that is allowed and disallowed on Facebook. The allowable expressions must foster and encourage authenticity, safety, privacy, and dignity. However, those that are not permissible include inter alia, violence and criminal behaviour, safety and objectionable content I have determined that your post at stake here Malele and the video clips you uploaded forming the subject of the original charges, do infringe Facebook’s Community Standards Guideline. I also determine given your association to the OLP blog that their page similarly breaches Facebook Community Standards Guideline, as that blog aid and abets in promoting your criminal conduct.
  14. I repeat what I said above regarding the aggravating features of the offending and mitigating factors pertinent to sentence and yourself as an offender. I also take into account the VIR which addresses the harm to the victim including:
  15. Having considered the totality of your offending, significant degree of culpability and all relevant circumstances as discussed including the purposes and principles of sentence, I am of the view that a custodial term is the most appropriate sentence. I have considered all other alternative sentences and am of the view it does not meet the principles and purposes of sentence. Denouncement as well as general and specific deterrence are paramount concerns.
  16. I endorse the words of Lord Denning in the infamous civil defamatory case of Goldsmith v Sperrings Ltd[55] where he said: “A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself. Whereas a civil libel does not come up to that degree of enormity.”
  17. I have also turned my mind to the principles of the Community Justice Act 2008 which promotes the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community. In my view however, the safety of the victim and community is very much a live concern here.
  18. I have researched the approach to sentence in other jurisdictions. However, I am mindful that sentences in those jurisdictions may not be helpful, as at the end of the day, I must take into account our own cultural context and the pertinent circumstances of your case.
  19. In saying that, one of the cases I found, is the Court of Appeal for Ontario decision of R v Simoes[56]. The accused there was charged with defamatory libel for publishing sexually explicit emails to the victim’s employer and for posting the victim’s photo on a cyber-dating website. She was convicted in the court of first instance and sentenced to 90 days imprisonment. She appealed. However, the Court of Appeal upheld the conviction but varied the imprisonment term to be served intermittently given the young ages of her children.
  20. The sentence I impose will ensure that I send out a clear message to you and members of the public especially those too easily prone to posting online whatever comes to mind without considering the adverse repercussion of the expression, that this Court does not tolerate such conduct. The sentence passed is with the mindset to deter and denounce cyber bullying and libellous publications leading to the loss of reputation, innocent lives, and other social problems our society do not need.
  21. Speaking of loss of life, I wish to mention that I read with interest in the Samoa Observer edition of 29 August 2019, a heartbreaking story about a 17-year-old student from Vaiola College, Jeran Teikanoa who won Savaii College’s English Speech competition. This student spoke in his speech about cyber bullying, its impact and how his sister lost her life by self - infliction due to cyber bullying on social media. I acknowledge with admiration his bravery to speak out about this topic and his tragic loss.
  22. Malele, your OLP associates and others who are doing this as a full-time job, that is the reality of the impact of your reckless and malicious actions. It is psychologically and emotionally traumatizing causing harm to innocent victims even self - inflicted loss of life. It must be stopped.
  23. With a custodial sentence in mind, I view 9 weeks as a suitable starting time. I will increase this to two weeks for the aggravating factors and vexatious change of plea application which took up the Court’s invaluable time and State resources; therefore, a total time of 11 weeks. I deduct 1 week for your personal circumstances thereby leaving 10 weeks. I deduct another one week for your good character prior to this offending, leaving 9 weeks. I deduct a further 2 weeks for your guilty plea. Thereby leaving 7 weeks. There are no other mitigating factors.

Penalty

  1. Malele you are convicted and ordered to serve an imprisonment term of seven (7) weeks.
  2. You are further ordered to remove the offensive video clips forming the original charges from your YouTube account and all other social network platforms you are associated with. This must be done forthwith. Police are to make available to you a device to enable you to log into your accounts and execute this order. Police must also closely monitor this process. Your failure Malele to delete these publications will result in another (1) week being added to your term of imprisonment.
  3. In addition, I have determined that the context of your post the subject of this proceeding is contrary to Facebook Community Standards Guideline and Samoan law and therefore order its permanent removal from Facebook.
  4. I further order that any future posts of a similar nature by yourself against the victim be reported directly by the Attorney General to Facebook under these Orders and Facebook is to have such impugned content removed upon receipt of the notification.
  5. By the same token, I further order that the O LE PALEMIA Facebook page that you are associated with be shut down permanently as it similarly infringes Facebook’s Community Standards Guideline.
  6. A copy of this Decision is to be delivered to Facebook for them to execute these orders upon receipt. Proof of compliance must be furnished by Facebook to the Office of the Attorney General.

Final words

  1. As you may all note, this is quite a lengthy decision. However, this is the first criminal case of this kind under the current criminal libel enactment. It is therefore a novel area of law. It is crucial I address in full the relevant legal principles and other important issues as it will guide future decisions and assist develop jurisprudence in this area.

JUDGE ALALATOA ROSELLA VIANE PAPALII

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[1] See Dr Julia Ioane, “Report on the Outcome of meeting Restorative Justice Conference” dated 30 July 2019.
[2] Samoa Government Website: www.samoagovt.ws
[3] See P v Lauina [2017] WSDC 5; P v Annandale [2017] WSDC 15; P v Lagaaia [2017] WSDC 23; P v Salele [2018] WSDC 14; P v Robbles [2018] WSDC 13; P v Tupou [2018] WSDC 17; P v Levi [2018] WSDC 5; P v S Paulo: Unreported sentencing ruling of J Viane Papalii delivered on 21/12/18; P v N Alalataua: Unreported sentencing ruling of J Viane Papalii delivered on 8/03/19; P v D Bentley: Unreported sentencing ruling of J Viane Papalii delivered on 12/04/19; P v C Vaai: Unreported sentencing ruling of J Viane Papalii delivered on 4/07/19; P v T Faagata: Unreported sentencing ruling of J Viane Papalii delivered on 1/07/19; P v M Taituave: Unreported sentencing ruling of J Viane Paplaii delivered on 13/09/19.
[4] AG v Chang [2018] WSCA 3
[5] Section 69 (3) (a)
[6] Section 69 (3) (c)
[7] Section 69(2)
[8] P v Papalii & Moalele [2011] WSSC 132
[9] Above note 3.
[10] Above n 4
[11] Z v R [2012] NZCA 599 at [27] & [28]
[12] Above n 3
[13] AG v Ropati [2019] WSCA 2
[14] Above n 3
[15] Above n 11
[16] H (CA680/11) v R [2012] NZCA 198
[17] See paragraphs [21] and [22]; also see cases cited in note 3
[18] Tupu v Police [2014] NZHC 743
[19] [2013] NZCA 255 at [43] and Tupu v NZ Police, Ibid.
[20] See s7(1) (c) Sentencing Act 2016.
[21] See s99 (d) Criminal Procedure Act 2016
[22] See [3] of Summary of Facts
[23] The Top 20 Valuable Facebook Statistics – updated September 2019 on https//zephoria.com/top-15-valuable-facebook-statistic.
[24] See the Victim Impact Report.
[25] Savea Sano Malifa v Sapolu and Alesana [1998] WSCA 5 at 7.

[26] See above note 3.
[27] Above note 19 at [43]
[28] Iosefa v Police HC Christchurch CIV – 2005 – 409 – 64, 21 April 2005 at [34]. Also see Alshami v Police HC Auckland CRI – 2007 – 404 -62, 15 June 2007 at [20] and Z v R, above note 11.
[29] Above note 3.
[30] Adams on Criminal Law: Sentencing (Loose leaf) at SA107.01
[31] Glacy: Budapest Convention Handbook.
[32] See Tabangacora, B “Ua Se Vaa Ua Tu Matagi: The Revival of Criminal Libel in Samoa” Post graduate paper for Pacific Law and Culture Conference University of Canterbury July 2018.
[33] Wechsler, H “The Challenge to the Penal Code in Glanville Williams in A textbook of Criminal Law (1978 at p3, quoted in the Canadian case of R v Stevens [1993] CanLII 14706 at 145.
[34] R v Stevens [1993] CanLII 14706 at 145.
[35] Ibid at 146.
[36] J R Spencer “The Press and Reform for Criminal Libel” in Reshaping Criminal Law: Essays in Honour of Glanville Williams (1978), at 23 quoted in R v Stevens above n 32 at 146.
[37] J R Spencer, Criminal Libel: The Law Commission’s Working Paper [1983] Crim. LR at 524.
[38] Above n 34 at 147.
[39] Ibid.
[40] Ibid.
[41] R v Lucas [1998] 1 SCR 439
[42] Malifa v Sapolu and Alesana [ 1999] WSSC 47
[43] Hill v Church of Scientology of Toronto [1995] CanLII 59 (SCC) at [49]
[44] Above note 42
[45] Ibid at 22
[46] See above note 34 at 152
[47] Ibid; quoted with approval in Malifa above note 42.
[48] Above n 41.
[49] Todds, S The Law of Torts in New Zealand; 5th Edition (2009) at 750
[50] Todds in Ibid referring to the Australian case of Dow Jones v Gutnick (2002 194 ALR 433.
[51] O’Brien v Brown [2001] DCR 1065.
[52] In the oral decision there was an inadvertent reference to the SSIG being a political party. This has been remedied.
[53] Above note 34
[54] See above at [117]
[55] Goldsmith v Sperrings [1977] 1 WLR 478 at 485 or [1977] 2 All ER 566
[56] R v Simoes [2014] ONCA 144


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