Police v Patu [2020] WSDC 3 (4 June 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Patu [2020] WSDC 3

Case name:	Police v Patu
Citation:	[2020] WSDC 3
Decision date:	04 June 2020
Parties:	POLICE v MAANAIMA PATU male of Moataa
Hearing date(s):	3 December 2018, 24 July 2019, 06 September 2019
File number(s):	D1225/18
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	The defendant is therefore discharged without conviction and ordered to pay Police costs of five hundred tala ($500) within 14 days from the date of this order.
Representation:	Ms. Iliganoa Atoa for the Prosecution Ms. Precious Chang for the Defendant
Catchwords:	aggravating factors – mitigating factors - sentence
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s13 Sentencing Act 2016 s69 & s70
Cases cited:	Police v. Papalii [2011] 132 (25 November 2011) Chang v. Attorney General [2018] WSCA 3 (13 April 2018)). Police v Su’a [2014] WSSC 80 (12 December 2014),
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

MAANAIMA PATU, male of Moataa
Defendant

Counsel:
Ms Iliganoa Atoa for prosecution (NPO)
Ms Precious Chang for the Defendant

Ruling on Sentence: 4 June 2020

RESERVED RULING OF DCJ SCHUSTER

Charge

1. The accused appears for sentence having been found guilty following a defended hearing of the charge under section 13 of the Road Traffic Ordinance 1960 which carries a maximum penalty of 10 penalty units or 2 years imprisonment.

Facts

2. Sometime in September - October 2016, the accused at the Apia Police Headquarters offered a warrant of fitness sticker UP #591 (hereinafter referred to as the “Sticker”) with a vehicle registration number 9869 written in ball point pen on the sticker knowing that it was not his property to offer. Notably present amongst others were Constable Fatonu Leava and Tafeaga Silva. Tafeaga Silva did not say anything but came back the next day and asked the defendant that he wanted the sticker and used it on his vehicle registration number 16430 believing it to be the property of the accused. However, the sticker was the legal property of Nuu and Sootaga Kilifi of Manunu who had lost the sticker one evening in August 2016 from in front of the Government Building at Eleele fou. The defendant knew that the use of the sticker by Tafeaga Silva on his vehicle would deceive the traffic enforcement officers as to the true representation of the sticker details in relation to Tafeaga Silva’s vehicle.

Aggravating Factors

3. Although this particular charge does not appear to be prevalent in the community being few and far between before the courts, the fact that it carries a maximum of 10 penalty units or two (2) years imprisonment speaks of the degree of seriousness Parliament has afforded this type of offending.
4. There was no evidence from the prosecution as to how the defendant came into possession of the sticker despite the fact that the complainant asserts that he either lost it or was stolen from inside his vehicle. I had rejected the defendants’ version that he had found it lying on the ground just outside the car park metres from the entry doors of the General Policing Division elaborated in my written reasons finding the defendant guilty of the charge. Whatever the facts may be, I am required to be neutral but the defendant is only criticized for the fact that he did not deal with the sticker in the manner that he should have given his experience.
5. Furthermore, at the time of the offending the defendant was a Police Officer with a Senior rank on duty is an aggravating factor. As a Police Officer, a higher standard is expected of you to uphold your oath to discharge your duties according to law. The added fact that the offending occurred inside the Apia Police Headquarters compound may have brought disrepute to the reputation of the Police department is also an aggravating factor.
6. The consequences of your actions has also brought about the demise of another police officer Tafeaga Silva whose service has also been terminated arising from this incident though Tafeaga must account for his own willing involvement.
7. There are no aggravating factors personal to the defendant.

Mitigating Factors

8. The accused is 42 years old and a male of Moataa. He is married with four (4) young children the eldest being 13 years and the youngest 5 years old. He has been a Police officer for 20 years until suspended without pay in 2018 whilst holding the rank of Senior Constable. He had started with Summons section, then CID, Traffic and finally General Policing.
9. The defendant has had this matter hanging over him since 2018 much to the delay by the prosecution obtaining their witness Tafeaga Silva’s certificate for non-prosecution prior to giving evidence given the high likelihood of self-incrimination. The suspension and charge were undoubtedly embarrassing not just for the defendant but also his wife, children and family given his outgoing nature, his reputation as a Police officer, his involvement in public affairs of the village as a matai and church. This is evidenced from letters supporting the defendant from the Moata’a Pulenuu Savae Wilson dated 31 January 2020 who confirms that the defendant serves his village Moataa through his participation in the village fono and affairs.
10. The defendants spiritual father Reverend Semikueva Faatoafe of the Moataa EFKS also provided a letter in support of same date stating that the defendant and his family attends church habitually and serves the church faithfully. He has grown up in the church and has a lot to offer the youth given his experience as a police officer. Reverend Faatoafe speaks highly of the defendant as a kind hearted, loving and helpful person.
11. The suspension and associated embarrassment are in themselves punishment as a consequence arising from the offending.
12. I accept the submissions from the defendants’ counsel that he is genuinely remorseful given the impact that this has had on his family. The defendant has also accepted the court’s decision which shows that he has accepted responsibility of his offending. I have regard for the plea of leniency and mercy from his wife Fuatino in a letter dated 5 February 2020 along with her children whom are innocent parties affected by the offending of the defendant. She pleads that her family has faced serious financial hardship since the defendant was suspended without pay in 2018 leaving two of their children having to stay home from school as they could not afford school fees. Fuatino further states that the defendant is a supportive and loving husband who works hard for his family, village and church.
13. From the character reference letters referred above and his previous good character, it shows that this offending was out of character and a rare error of judgment for it has come as a surprise to those who know the defendant.
14. There is a real likelihood that the defendants’ current employment may be terminated. I have regard to a reference from Assistant Commissioner of Police Fauono Tala Tapu dated 31 January 2020 who speaks highly of the defendant as a Police officer who was reliable and competent culminating in his selection to be part of a peace keeping mission team to the Solomon Islands.

Application for a discharge without conviction

15. Through the defendant’s counsel Ms Chang, he has applied for a discharge without conviction. The law as to an application to discharge without conviction is now well settled in Samoa (see Police v. Papalii [2011] 132 (25 November 2011) and Chang v. Attorney General [2018] WSCA 3 (13 April 2018)). The discretion to grant a discharge without conviction is provided for under section 69 of the Sentencing Act 2016. Section 70 provides that “the Court must not discharge a defendant without conviction unless it is satisfied that the consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”
16. There are two 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 consequences of a conviction on the defendant would be out of all proportion to the gravity of the offence.
17. The second step is for the court having regard to the circumstances determine whether the overriding discretion to grant a discharge should be exercised.
18. The prosecution had not offered a sentencing memorandum and Ms Atoa on 28 February 2020 indicated that they were not opposing the defendants’ application for a discharge without conviction.
19. Ms Chang on the other hand has suggested that this offending should be discharged without conviction on the grounds that (i) the gravity of the offending was at the lower end; (ii) there are direct and indirect consequences of a conviction on the defendant which will jeopardize his (employment) future; and (iii) the consequences of a conviction would be out of all proportion to the gravity of the offending.

Discussion

20. As Chief Justice Sapolu as he then was stated in Police v. Papalii [2011] 132 (25 November 2011 and Police v Su’a [2014] WSSC 80 (12 December 2014), the crucial question is whether the consequences of a conviction would be out of all proportions to the gravity of the offending.
21. I find that the defendants action was a grave error of judgment on his part given his experience and clean police record. It is not helped by the fact that Tafeaga notwithstanding his own police experience came back the next day and insisted for the sticker having then committed the defendant to the offence.
22. In considering the appropriate sentence for the defendant and given that this offending and circumstance seem uncommon, there was a need to research for any previous cases relating to this charge. Having not come across any previous case or cases on point in Samoa, I will treat this case as the first of its kind. Perhaps this may also be the reason for the prosecution not offering a sentencing memorandum nor submissions written or oral as to an appropriate sentence they may recommend.
23. As I had indicated earlier, this is a serious offence because of the implication of a maximum penalty of 10 penalty units or two (2) years imprisonment. However, in consideration of the conduct of the defendant in the offending, I find that it was predicated on a grave error of judgment given his experience, impeccable Police record and high regard from a senior Commissioned Officer of his peers. If I am correct that this be the first case of its kind, I am inclined to show leniency and mercy on the defendant. However, I remind myself that this sentencing method is limited to the offending provision the defendant has been charged and found guilty of. Moreover, the fact that it may be the first of its kind to come before sentencing in this court does not necessarily follow that this is to be a precedent but each charge is to be considered on their own merits for sentencing.
24. Having considered the facts and circumstances of this case, I have assessed the defendant to be relatively at the low end of re-offending. Although a reward is not an element of the charge it is relevant for sentencing. I find that the defendant had not made any substantial commercial gain from the present offence which speaks of his spontaneous and poor judgment in this instance. He has a good work history and is commitment to return to work subject to the determination of this matter. He has the benefit of the support of his family, church and village.
25. I therefore find that the gravity of this offending is at the low end. However, the consequences of a conviction would be that the accused’s 20 years of unblemished career in the police service would automatically be brought to an end. It would be difficult for the accused to find another appropriate job. Inevitably, he and his family who depend on him will suffer financially as indicate in his wife Fuatino’s letter. I have come to the conclusion that the consequences of a conviction would be out of all proportion to the gravity of his offending.
26. The defendant is therefore discharged without conviction and ordered to pay Police costs of five hundred tala ($500) within 14 days from the date of this order.

JUDGE MATAUTIA R. SCHUSTER