Police v Schwencke [2020] WSDC 13 (14 August 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Schwencke [2020] WSDC 13 (14 August 2020)

Case name:	Police v Schwencke
Citation:	[2020] WSDC 13
Decision date:	14 August 2020
Parties:	POLICE (Informant) v SHRIKRISHNA SCHWENCKE, male of Vaiala & Ululoloa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	Having been satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending, I exercise the courts discretion pursuant to section 69 of the Sentencing Act 2016 discharge the defendant without conviction subject to the defendant paying $1000 court costs and $200 for prosecution costs within 14 days from the date of this order. In default, the matter will be recalled after the 14 days period for the court to make the necessary amending orders to sentence.
Representation:	R. Titi for the Informant P. Chang for the Defendant
Catchwords:	Possession of an unlawful weapon – possession of unlawful ammunitions – discharged without conviction subject to paying costs.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SHRIKRISHNA SCHWENCKE, male of Vaiala and Ululoloa

Defendant

Counsels: Ms Rexona Titi for prosecution
Ms Precious Chang for the Defendant

Date of decision: 14 August 2020

RESERVED RULING OF DCJ SCHUSTER ON SUMMARY OF FACTS DISPUTE AND SENTENCING

1. The accused appears for sentence having entered a guilty plea on 1^st October 2019 to two (2) charges of being in possession of an unlawful weapon namely a 38 pistol revolver and in possession of unlawful ammunitions namely two (2) 38 pistol bullets and one (1) 9mm bullet not being authorized by the Minister of Police pursuant to section 12(1) and (2)(b) which carries a maximum penalty of a fine not exceeding 100 penalty units or to a term of imprisonment for a term not exceeding 5 years, or both.
2. The Defendant has challenged the summary of facts dated 31 October 2019 paragraphs 2, 4 and 5. The defendant asserts that he was handed the unlawful weapon and ammunitions by Inspector Ituau Ale Junior (as he then was) and directed to keep it with him until further instructions. This was after the Small Islands Development Conference (SIDS) held in Samoa 2014. His only regret is that he forgot about the weapon and ammunitions until the Police questioned him an seized the weapon and ammunitions from his home on 13^th September 2019.

Evidence

3. The prosecution called one (1) witness Mr Ituau Ale Junior who is by now a civilian. He is a 46 years old male of Solosolo and Tanumalala with 15 years of service to the Ministry of Police. He testified that about a year or two after the SIDS, Ms Faalavaau Perina Sila (who was the SIDS coordinator and senior officer of the Ministry of Foreign Affairs) called him and reported a weapon she found at her home at Lotopa while she was preparing to move house. Ituau attended the call with the defendant who was a constable at the time. Upon arrival, Ituau witnessed the weapon was stored inside a pair of socks. Faalavaau desired for them to take possession of the weapon and ammunitions. Ituau then instructed the defendant to physically check the weapon to see if it was safe because he was not a weapons expert. The defendant then checked the weapon and Ituau subsequently told the defendant to take the weapon and ammunitions and turn it in to the Police armoury.
4. Ituau was referred to paragraph 8 of the defendant’s affidavit dated 30 October 2019 produced as Exhibit D2. Ituau denied that he ever touched the weapon but instructed the defendant to check the weapon in the presence of Faalavaau and to take the weapon to the armoury. Ituau further denied paragraph 10 of the defendant’s affidavit that he never had a discussion with the defendant the day after about the weapon nor instructed him to hold on to the weapon until further directions.
5. Under cross examination, Ituau was referred to Talalelei Tapu’s affidavit dated 10^th July 2020 also known as Fauono Talatapu produced as Exhibit D3. Ituau responded that he has no knowledge of the circumstances and substance of the discussion between the defendant and Fauono. He further testified that the defendant never spoke to him again about the weapon and ammunitions after he instructed him to hand them in to the armoury.
6. It was further put to Ituau that he was the complainant as it was his report that led to the investigation of the defendant in 2019 (Exhibit P1). However, Ms Chang put to Ituau that he was bitter given that he had been removed as Head of the Transnational Crimes Unit at about September 2019 and replaced by the defendant. Ituau denied he had an ulterior purpose and further responded that he wrote his report to the Commissioner when the allegation against the defendant was reported to him by other officers but he was not aware it was in relation to the weapon retrieved from Faalavaau after SIDS. It was only when he was questioned by Sergeant Viane on 25 February 2020 (Exhibit D1) that he realised it was about the same weapon. He then advised Viane that it was pertinent that a report from Faalavaau who was the Samoan Ambassador to Japan be obtained and would clear up the issue. Ituau denied that he was shown nor was aware of the existence of a written report from Faalavaau as indicated in paragraph 2 of Exhibit D1. Ituau suggests that perhaps Viane had not correctly recorded what he said despite the fact that he did sign his name in Exhibit D1.
7. The defendant gave evidence confirming his affidavit (Exhibit D2). He had come in possession of the weapon and ammunitions during the SIDS conference in September 2014 when Ituau handed them to him. There was no evidence as to where and when Ituau handed the unlawful items to him. The defendant alleges that Ituau asked him to take the weapon home with him and check whether it was in working condition. The defendant did so and reported back the next day that the weapon was not in working condition (paragraph 9 Exhibit D2). It is to be noted at this point that the defendant did not dispute paragraph 5 of the summary of facts and yet it is clear that he is in paragraph 9 of his affidavit dated 30 October 2019 as to the working condition of the weapon.
8. The defendant further alleged that he asked whether to hand in the weapon to Tagaloa Toddy Iosefa, the arms officer, but was told by Ituau to keep the gun with him until further directions. He testified that Ituau told him that Toddy did not need to know about it. It is to be noted that this evidence was never put to Ituau and will therefore be disregarded. However, he forgot about the weapon and ammunitions until he was questioned about the weapon on or about 13 September 2019 as accepted in the summary of facts.
9. The defendant accepts that he erred in taking the weapon home but should have reported and handed it in to the armoury. However, he had been trained to follow instructions which is the reason why he decided to hold on to the weapon and ammunitions. He testified under oath that he placed the weapon and ammunitions under his bed at his home at Ululoloa. He completely forgot about the weapon and ammunitions until on or about 13 September 2019.
10. Under cross examination, the defendant agreed that the right thing to do was to hand the gun in despite the instructions from Ituau. He also accepted that he had never mentioned Talalelei Tapu’s involvement to Police until Talalelei Tapu’s affidavit was filed 20 July 2020. It is to be noted here that the defendant did not include this evidence of Fauono in his affidavit Exhibit D2 of 30 October 2019.
11. Talalelei Tapu testified confirming the contents of his affidavit Exhibit D3. Ms Chang did not have any questions for Mr Tapu.

Discussion

12. The question is did former Inspector Ituau authorize the defendant to hold on to the unlawful weapon and ammunitions until further instructions? Given the conflict, it is a matter for the court to consider which version is the one to accept as containing the truth of the matter at issue. If I am doubtful as to which version is to be relied, the decision must be in favour of the defendant’s version.
13. In saying that, I am satisfied with the evidence of Ituau. The fact that the defendant had the unlawful weapon and ammunitions under his bed for five (5) years and “completely forgot” about it in my view is not remotely believable. The defendant relied on the written testimony of Talalelei Tapu a.k.a Fauono who instructed him to take the weapon and ammunitions back to Ituau. Although the defendant testified that he did the next day go back to Ituau, he never testified that he told Ituau he was instructed by Talalelei Tapu to return the weapon and ammunitions to him. Ituau in response under cross examination said that the defendant never spoke to him again about the weapon and ammunitions nor mentioned Talalelei Tapu’s name. There is no mention of Talalelei in the defendant’s pre-sentence report and accepted summary of facts both dated 30 October 2019. It has caused me to consider whether this meeting ever occurred between the defendant and Talalelei, or if it did, the defendant ignored Talalelei Tapu’s instructions. I have preferred the latter.
14. I find that Ituau had nothing to gain, if there were an ulterior motive, from the alleged instructions to hold on to the weapon and ammunitions as well as not to inform Toddy. Even if Ituau had a motive to jeopardize the career of the defendant if that be the case, it would be to suggest that Ituau had waited for five (5) years to use his trump card against another officer who was at the time ranked lower than he was. There is just no evidence that Ituau knew that the weapon and ammunition had not been handed into the armoury immediately after it was removed from Faalavaau to draw such an inference.
15. Nevertheless, even if the defendant’s version was accepted, it still does not exonerate his involvement as he admits himself in his affidavit that he should not have kept the weapon and ammunitions at his house and should have handed them in to the armoury despite the alleged instructions.
16. I therefore accept the prosecutions version of the facts pertaining to this disputed fact and reject the evidence of the defendant.

Application for discharge without conviction

17. The defendant is a 37 years old male of Ululoloa and Vaiala and living in a de facto relationship without children although he has one (1) daughter in Australia from a previous relationship whom he has not been in contact with since 2012. He is well educated having been schooled in Samoa and earned a scholarship for a Bachelor of Political Sciences and Criminology at Victoria University in Wellington, New Zealand. He returned to Samoa having not completed his degree with only 7 units remaining in 2006. In 2007, he commenced employment with the Ministry of Police. Prior to his suspension related to this charge, he was in charge of the Police Transnational Crimes Unit.

Aggravating factors

18. The prosecutions sentencing memorandum dated 31^st October 2019 refer to following factors as aggravating to the defendant’s case:
    • (i) The weapon and ammunitions being unlawful and working condition
    • (ii) Risk of safety to the defendant’s life and other members of society
    • (iii) Concealing the unlawful weapon
    • (iv) Seriousness of the offending
    • (v) The need for deterrence
19. The prosecution further provided three (3) unreported sentencing cases to assist the court: Pol v Faamasani (4 August 2016) where the defendant was convicted and discharged for possession of unlawful weapon a .22 semi-automatic rifle by presenting and threatening the two complainants; Pol v Atina Fatumanava (12 September 2017) where the defendant was convicted and fined $400 for possession of unlawful ammunition following a police raid at his home; and Pol v Moleni Taliai (29 July 2016) where the defendant was convicted and fined $500 for possession of two (2) unlawful ammunition found in the defendant’s vehicle.
20. The underlying concern that seems to be emphasized by the prosecution is the risk to the defendant himself, his family and members of society due to being in possession of an unlawful weapon and ammunitions. It is to be noted that the legislation itself provides for regulation of the importation, sale and licencing of firearms and ammunitions including firearms and ammunitions deemed unlawful pursuant to section 12.
21. I do not believe that prosecution is suggesting that only weapons and ammunitions deemed unlawful pose a threat to any person(s). It is reasonable to say that any operational firearm with ammunitions whether lawful or not poses a real threat to any person when under the control of irresponsible persons. For example, when a loaded firearm is not locked away in a place not accessible by other persons especially children. On 29 October 2012, the Samoa Observer reported at Samamea village, an eight (8) years old boy accidentally shot and killed his five (5) years old cousin whilst fighting over possession of a loaded rifle.
22. The circumstance is exacerbated where the possessor of a lawful or unlawful weapon (whether licenced or not) does so for an unlawful purpose, i.e., the security of an illegal operation like the commercial cultivation of cannabis. In Police v Faisauvale [2010] WSSC 83 (16 July 2010), Justice Slicer stated that “The combination of commercial involvement in narcotics and the possession of firearms require a significant penalty” and sentenced the defendant to an imprisonment term of 2 years and 6 months. In Police v Fuiava [2018] WSDC 18 (19 June 2018), a case involving unlawful weapon and illegal drugs, the defendant was convicted and ordered to come up for sentence within 8 months as well monetary fine of ST$2000 for court costs, $500 for prosecution costs and $100 for probation costs.
23. The fact that the defendant is a police officer at the time of the offending does not go unnoticed coupled with the seriousness of the offending and prevalence of this type of offending are aggravating factors pertinent to the defendants offending.
24. There is no evidence that the defendant resides with anyone other than his de facto wife at Ululoloa. Other than placing the unlawful weapon and ammunitions under his bed, there is no evidence that that was any threat or risk to himself or his wife who states in the Pre-sentence report had no knowledge of the items. There is evidence to suggest that the defendant is qualified and responsible to handle firearms offered by Ituau since the latter instructed the defendant to take possession and check the weapon for safety as Ituau was not an expert in firearms. Equally, there is no evidence that the defendant handled the weapon and ammunitions irresponsibly in a circumstance that created a risk to his life, his wife or others. The only irresponsible act conceded is being in possession of them. There is no suggestion that possession was associated with an unlawful purpose or activity. Moreover, I do not regard the description of concealment of the weapon and ammunitions in the manner described by prosecution as sinister to be aggravating other than the fact that he was in possession.

Mitigating factors

25. The defendant comes from a hard working family background. His parents were both, or may still be, public servants his father working at Treasury and the mother at Central Bank of Samoa. Subsequent to the offending 2014-2015, the defendant rose gradually in rank within the Ministry of Police to being given the trust to be in charge of the Transnational Crimes Unit. This unit required specialized knowledge and skills to generate and coordinate intelligence on criminal activity both domestic and regional policing. This suggests the defendant’s reliability, devotion, dedication, hard work and commitment to his chosen career as confirmed in writing by Fauono Talalelei Tapu, former Assistant Commissioner of Police.
26. The defendant’s hard work and devoted attitude along with his good character is testified by the supporting references from his de facto wife, Dulcy Ah Vui, his EFKS Vaiala minister and village mayor as well as the CEO of the Samoa Shipping Services.
27. He appears to be genuinely remorseful of his conduct especially because of the detrimental effect that it now shadows over his promising career as well as his responsibilities to his family. As a police officer, the charges and court appearances no doubt has brought unwanted public attention to the defendant and his family. The defendant wrote a letter of apology to the Commissioner of Police and saved unnecessary cost to the state by owning up via guilty plea to the charges despite his fundamental right on a criminal charge to put the prosecution to proof. The defendants illustrious career elevation is only blemished by this offending being the first time he has been charged with a criminal offence.
28. Ms Chang submits on behalf of the defendant that direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending given that the gravity of the offending is at the lower end and that a conviction will jeopardize her client’s future within the ministry of Police.
29. The law on discharge without conviction sentencing in Samoa pursuant to the repealed section 104 of the Criminal Procedure Act 1972 and the new Sentencing Act 2016 sections 69 and 70 is well established and need not be repeated here (see Police v Papalii [2011] WSSC 132; Pale v Attorney General [2010] WSSC 122; Chang v Attorney General [2018] WSCA 3 (13 April 2018); Attorney General v Ropati [15 April 2019] WSCA, unreported). Despite the repeal, the principles as to the consideration and application of the discretion to discharge remain the same.
30. Suffice to say that there are three steps involved. The first is that the court must consider: (i) the gravity of the offending; (ii) the consequences of a conviction; and (iii) whether the direct or indirect consequences of a conviction on the defendant would be out of all proportion to the gravity of the offence.
31. This case does not involve illegal importation, possession of a high quantity of unlawful firearms and ammunitions and/or association to any illegal activity. Although unlawful firearms may still be licensed pursuant to section 12 of the Arms Ordinance in special cases, the overall concern of parliament is to prohibit the illegal importation of unlawful weapons especially if associated with illegal activity.
32. It is noted that there have been previous cases on sentencing of possession of unlawful weapons or ammunitions not associated with any illegal activity where the defendants have been convicted and fined as referred to in the prosecutions sentencing memorandum recited in paragraph 19 above. However, in Police v Menefata [2016] WSFVC 7 (5 October 2016), the defendant (a police officer) was reported by his disgruntled wife following discovery of his extramarital affair being in possession at their home of a 357 revolver taken from the police exhibit room. DCJ Clarke as he was then known applied his discretion under the repealed section 104 of the Criminal Procedure Act 1972 as the defendant’s possession of the unlawful weapon was at the lower end of the gravity of the offending and falls well short of warranting of a custodial sentence.
33. In sentencing, I bear in mind the matters that I must take into consideration pursuant to section 5 and the principles of sentencing as set out in section 6 of the Sentencing Act 2016.
34. I find that the defendants action was a grave error of judgment on his part given his rank, experience and clean police record. I accept in favour of the defendant that the unlawful weapon and ammunitions in the 5 or 6 years it was in the possession of the defendant had never been used. This is a serious offence given the high penalty of a maximum of 5 years imprisonment, a maximum of 100 penalty units or both. Nevertheless, I am of the opinion that the circumstances and gravity of this offending is at the lower end.
35. This being said, I am persuaded that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. The defendant has prior to the offending held an unblemished and admirable police record and reputation. He is highly qualified in his field particularly his leadership within the Transnational Crimes Unit. It is highly likely a conviction may very well jeopardize the career of the defendant although the court cannot pre-empt the certainty of such an outcome. The high likelihood of a termination founded on a criminal conviction of an offence the gravity of which is at the lower end of seriousness would be absurd and detrimental to the defendant and his innocent familial dependents.
36. Having considered the facts and circumstances of this case, I have assessed the defendant to be relatively at the very low end of re-offending. There is no gain from the defendant’s poor error of judgment. In my view, it is simply that - a very poor error of judgment that has not resulted to any associated harm but to the reputation and career of the defendant.
37. Having been satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending, I exercise the courts discretion pursuant to section 69 of the Sentencing Act 2016 discharge the defendant without conviction subject to the defendant paying $1000 court costs and $200 for prosecution costs within 14 days from the date of this order. In default, the matter will be recalled after the 14 days period for the court to make the necessary amending orders to sentence.
    

MATAUTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE