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Police v Mareko [2021] WSDC 10 (11 November 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Mareko [2021] WSDC 10 (11 November 2021)


Case name:
Police v Mareko


Citation:


Decision date:
11 November 2021


Parties:
POLICE (Informant) v SAVELIO MAREKO (Defendant)


Hearing date(s):
20 March 2020


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
1 July 2021 Faamasino Fesoasoani Sentence
  1. The additional two months the FF court unlawfully ordered the defendant Mareko to serve in prison in excess of the maximum statutory 3 months’ custodial penalty under s4(g) Police Offences Ordinance, is quashed.
  2. The defendant Mareko has to date, effectively served a custodial term of 4 months 10 days. The one month and 10 days he erroneously served in custody in excess of the maximum penalty time is unlawful.
  3. According the Mareko must be released forthwith without any further delay.
Instant Charges for sentence
  1. On the present charges before me for sentence today, Mareko is convicted and the time he spent in custody from 16/03/21 to 13/04/21 which is approximately 1 month when he was finally bailed is his penalty noting the lengthy remand in custody is grossly disproportionate to the minor nature of the offences here.


Representation:
Ms S Meredith for the Prosecution
Defendant is self-represented


Catchwords:
Erroneous Sentence in the Faamasino Fesoasoani;
Jurisdiction of District Court to correct sentencing errors in the Faamasinoga Fesoasoani made in excess of the maximum imprisonment penalty under the charging provision;
Unlawful detention;
Breach of constitutional right to personal liberty under Article 6 Constitution
Miscarriage of justice and prejudice to the defendant.


Words and phrases:


Legislation cited:


Cases cited:
AG v Otahuhu District Court [2001] NZCA 187;
Asian Taste v Ah Sam [2017] WSDC 8
Elias v The Queen [2013] HCA 31; [2013] 248 CLR 483]
Markarian v Queen [2005] 228 CLR
Mataafa v Ministry of Revenue [2017] WSDC 21;
Nmandi v AG [2011] WSSC 91;
P v Ludwig Wendt [2018] WSDC 16;
R v Sussex Justices, ex parte McCarthy ([1924] [1923] EWHC KB 1; 1 KB 256, [1923] All ER Rep 233;
Sapolu v Saaga [2018] WSCA 9;
Toailoa v Duffy [2005] WSSC 7.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


SAVELIO MAREKO male of Vaitele Fou and Taufusi


Defendant


Presiding Judge: Alalatoa Rosella Viane Papalii


Representation: Ms S Meredith for Prosecution
Defendant for Himself


Ruling date: 11 November 2021


RULING

Introduction

  1. This matter came before me for sentence today on charges of insulting and threatening words arising from an incident on 15 March 2021, at the family home of the accused at Vaitele. The accused Savelio Mareko (“Mareko”) was remanded in custody for approximately 4 weeks from 16 March to 13 April 2021 when he was finally bailed.
  2. The Summary of facts was read out and accepted. Mareko have previous convictions as reflected in the previous conviction record (“PC”) Prosecution submitted. The PC shows that the most recent recorded entry was for 1 July 2021. This was for a charge of insulting words where Mareko was sentenced in the Faamasinoga Fesoasoani (“FF Court”) with a conviction and imprisonment term of five (5) months. Mareko is therefore doing time from that sentencing ruling when he appeared today.
  3. The end sentence immediately set off alarm bells given the statutory penalty for this type of offending under section 4(6) of the Police Offences Ordinance 1961, is a maximum of 3 months’ imprisonment or a fine of $200. Thinking that the PC entry might be in error, Mareko was questioned if he could clarify if he was doing time for any other offence other than the one he was sentenced on in July 2021, the nature of the offence he was sentenced on in July and the length of time he had been incarcerated.
  4. Mareko confirmed the only offence he is doing time for is insulting words in which he was sentenced on 1 July 2021 to 5 months’ imprisonment and that he has already served 4 months 10 days of that sentence. Prosecution’s view was also sought, where they asked for an adjournment as understandably, they were caught by surprise. As I firmly indicated to counsel this morning, I have no intention of adjourning this matter. Another day in jail is a day lost in the life of Mareko to his freedom of liberty. Even a further court appearance on the same matter will only aggravate the injustice he already suffered.
  5. Given the urgency of this issue, I stood down the matter for Court staff to locate the FF file and Prosecution to fetch their file and obtain instructions on the issues of excessive sentence and unlawful detention.

Judicial Proceedings in FF Court

  1. Having located and reviewing the FF file and hearing from prosecuting Counsel, I take judicial notice of these substantive and procedural facts in regards to the 1/07/21 proceedings:

Approach in this Court

  1. I was naturally very concerned with this discovery and moved to immediately deal with it even though it was not brought to my attention by any party. In my respectful view, once discovered, this court is at liberty to act quickly to correct an error of this nature which affects substantial rights of a defendant.[1] This becomes even more salient in this case especially since Mareko had already served 1 month 10 days of the erroneous portion of the sentence. Due to time constraints and urgency of the matter at hand, this brief ruling will only deal with the most significant issues at the heart of this matter.

Primary Issues

  1. The primary issues of concern here are:

Jurisdiction of District Court to Correct Error

  1. Section 61 District Court Act 1961 deals with trials before a judge or Faamasino Fesoasoani and provides:
  2. By operation of sections 61 above and common law principles, the District Court have a clear and unqualified duty to review and correct plain errors arising from the FF court affecting substantial rights of defendants. As I observed in a number of cases including P v Wendt[2], Asian Taste v AH Sam[3] and Mataafa v Ministry of Revenue[4], this Court does not have inherent jurisdiction unlike the Supreme Court. Rather it is endowed with inherent powers necessary for it to act effectively within its jurisdiction. I had referred in those cases to the NZ Court of Appeal case of AG v Otahuhu District Court[5] adopted by the learned CJ Sapolu in Duffy v Toailoa[6] where it was explained that:
  3. This court is guided by these principles.

Law

  1. The FF Court has its own criminal and civil jurisdiction. Its criminal jurisdiction is governed by section 30 of the District Courts Act 2016 which provides:
  2. Article 6 (1) of the Constitution of the Independent State of Samoa (“the Constitution”) guarantees the right to liberty which states: "Right to personal liberty – (1) No person shall be deprived of his personal liberty except in accordance with law."
  3. The offence of insulting words is legislated by section 4 (g) of the Police Offences Ordinance which provides as follows:

Submissions

  1. Prosecution in their brief oral submissions quite properly conceded that there has been a judicial error in the sentence imposed and did not oppose releasing Mareko. They also quite properly invited Mareko who is unrepresented by counsel to seek legal advice on the excess time he spent in jail if he wishes to pursue it. For the present charges they sought a conviction and left it to the court to decide on an appropriate sentence. I have no criticism about the lack of submission as the prosecution representing the State were caught in a difficult position given the turn of events.

Discussion

Sentencing error of 1 July 2021

  1. It is trite law to say that judicial officers play a pivotal role in the administration of justice. For the FF court the execution of judicial duties and functions should be in accordance with the rule of law and jurisdictional boundaries of the Court as prescribed by legislation. The same applies in discharging sentencing functions for criminal matters.
  2. As a general guideline for Faamasino Fesoasoani, in passing sentence, a good starting point is to ascertain the legal landscape of sentencing laws. The first stop is to check the statutory penalty Parliament imposed under the charging enactment, provisions of the Sentencing Act 2016, Constitution, other related statutory schemes and common law principles (where applicable). Where a custodial sentence is considered appropriate, it is critical to check what the maximum imprisonment penalty is under the charging provision.
  3. The long title of the Sentencing Act sets out the scope, purpose and subject of the Act. It states that it is:
  4. It is important to bear in mind amongst other things the range of sentences available under the Sentencing Act, purpose and principles of sentence and other means of dealing with a defendant. Apart from crimes attracting life imprisonment, it is almost unheard of to sentence an accused on a sole charge of insulting words to the maximum custodial term of 3 months. Certainly, in my days as a judge, I have not imprisoned anyone for uttering insulting words.
  5. Section 53 of the Sentencing Act deals with the length of sentence of imprisonment which relevantly provides:
  6. Judicial sentencing error of the kind identified here, is a rarity. I stand corrected but this is perhaps the first of its kind in the lower court. Most errors on appeal fall under the category of either a wrongful conviction or lenient or harsh sentence. The fact that there is such an error now discovered is a matter of public interest that must be addressed forthwith so preventative measures could be taken promptly. It is not the number of occasions it occurred that matters but the fact that it happened at all during the course of administering justice.
  7. A number of considerations immediately springs to mind including inter alia, public perceptions on the legitimacy and trustworthiness of sentencings, unfairness in imposing an erroneous sentence in excess of the statutory limit and ultimately miscarriage of justice. The public must be assured that this is a one off incident and there is an unlikelihood of a repeat. I say this bearing in mind section 64 of the District Court Act which deals with the immunity of judges and Faamasino Fesoasoani cited below:
  8. In Sapolu v Saaga[7] the Court of Appeal had this to say about its analysis of s64 in the circumstances of that case:
  9. I urge the FF Court to read up on this judgment and to keep in mind the observations in bold of the Court of Appeal as it is binding on all lower courts.
  10. From the perspective of an accused person such as Mareko, the harm from allowing an erroneously severe sentence go uncorrected exacerbates the injustice and infringement on the right to liberty. There is no doubt in mind that Mareko is severely prejudiced. As a rule of thumb, regardless of the custodial punishment a judge determines appropriate in a given case, the sentence ultimately carried out must not exceed the maximum imprisonment time under the charging provision.
  11. It must be borne in mind that the maximum penalty represents the legislature’s assessment of the seriousness of the offence, and for this reason provides a sentencing yardstick.[8] In Markarian v The Queen[9] Gleeson CJ, Gummow, Hayne and Callinan JJ set out three reasons why sentencers should have particular regard to the maximum penalties prescribed by statute. Their Honours said:
  12. A Court’s sentencing discretion however is not constrained by maximum penalties with the result that it ends up imposing an inappropriately severe sentence on an offender.[10] As said numerous times, a court must arrive at a sentence that is just in all of the circumstances. As observed in Elias v the Queen,[11] the administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.
  13. As alluded to above, the charge of insulting words attracts a penalty of a maximum of 3 months’ imprisonment or a fine of $200. The final custodial sentence of five months for this minor offence was two months in excess of the permissible maximum statutory penalty. Today when Mareko appeared for sentence on another matter, he had already served approximately 4 months 10 days of that sentence. This means he was unlawfully detained by 1 month 10 days.
  14. Article 6 of the Constitution protects the right to personal liberty of all persons and provides that: "6. Right to Personal Liberty:- No person shall be deprived of his or her personal liberty except in accordance with the law." The Constitution is the Supreme law of the land. The fundamental rights encoded in Part II must be observed at all times. Article 6 guarantees to all persons the right to freedom of liberty. This must not be arbitrarily taken away from a person unless it is in accordance with the law.
  15. A detention would be lawful after a court conviction and penalty. But it would be unlawful if it is outside of the statutory detention penalty allowable under the law. It must be borne in mind that the right to a person’s liberty other than removal by lawful authority is a key plank of our society. It is a fundamental right of every person subject to the laws of this country. It cannot be ignored or receded to the backseat by anyone including the State or least of all a judicial institution.
  16. Samoa ratified the International Covenant on Civil and Political Rights (“ICPPR”) on 15 February 2008. The Covenant was adopted by the United Nations General Assembly (“UN”) in 1966 and came into force in 1976. Samoa is a member of the UN and have endorsed the Universal Declarations of Human Rights as seen in our Constitution. The ICCPR obligates countries like Samoa that have ratified it to protect and preserve basic human rights set out in the covenant. This includes the right to personal liberty and security under Article 9 (1) which relevantly provides:
  17. Sub-clauses 4 and 5 are also relevant here. It provides:
  18. The ICCPR recognises the inherent dignity of each individual. It undertakes to promote conditions within states to allow the enjoyment of civil and political rights. Countries that have ratified the Covenant are “compel[ed] to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.[12]” As with other international covenants like the Convention on the Rights of the Child, Samoa and least of all its judiciary should not be paying lip service to its obligations under the ICCPR.
  19. Sub-clauses 4 and 5 of Article 9 ICCPR provide remedies to those who feel aggrieved by a breach of the right to liberty. This includes taking the matter before a Court so it could decide without delay on the lawfulness of the detention, for a release order and to seek for compensation. This is in line with the judicial approach I have adopted here. Although understandably, Mareko did not pick up on his unlawful detention rather it was the court itself, there is nothing stopping this Court from stepping in to remedy this error of major proportion.
  20. It is without a doubt that imposing an erroneous sentence of this nature substantially interferes with the rights of Mareko as an accused especially his freedom to liberty. The breach of Mareko’s constitutional rights cannot be condoned nor continue. It should be condemned. Any further delay in releasing Mareko will only contribute to the gross infringement of his fundamental right to liberty thereby compounding the injustice that has already had a ripple effect on him.
  21. The sentencing decision by the FF Court was unlawful, unreasonable, unconstitutional and an abuse of process. There has been a gross miscarriage of justice and this Court will act promptly to remedy it in an effort to stem the injustice to the accused. Lest it be forgotten that a Court must not abdicate its statutory function. It must pass lawful sentences in accordance with the law and ensure constitutional rights of those affected are not trampled on regardless who it is. A recidivist does not deserve prejudicial or harsher treatment on that ground alone. Justice does not discriminate. Everyone is equal before the law.
  22. Unfortunately, incidents of this nature could have been easily avoided by exercising due diligence and checking first the maximum imprisonment penalty in the charging provision. Section 53 of the Sentencing Act is permissible and gives the Court discretion to pass a term of imprisonment to either the maximum term or a lesser time under the charging provision. It does not say a court can go over and above that limit bearing in mind the limited jurisdiction of lower courts. FF court must bear this in mind as well.
  23. It is unfortunate as well that the error was recorded undetected. Prosecution is reminded of their utmost important duty to the Court and to the public to prosecute with fairness, independence and integrity. They are urged to be more vigilant and alert to situations of this nature especially in the FF Court. This includes rising quickly to draw the attention of a Faamasino Fesoasoani to the correct prescribed imprisonment penalty if a sentencing error in excess of the maximum time is detected. Judges after all are humans and prone to err.
  24. Perhaps it is timely that composition of the FF Court be revisited to consider having legally trained senior lawyers with at least 8 years’ experience or have more District Court Judges to preside in the FF Court to prevent a recurrence of this incident. In saying this, mean no disrespect to other sitting Faamasino Fesoasoani in making this recommendation. However, the prevention of abuse of process and miscarriage of justice is critical in any justice system. A Court should never be a party to curtailing and abrogating fundamental rights or freedoms unless there is just reason to do so. There is none present here and there is no excuse for it.
  25. The accused Mareko who is unrepresented by counsel has every right reserved under the law to seek independent legal advice regarding the 1 month 10 days he erroneously served in jail due to the sentence passed. It is the least this court could do to see to it that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”[13] This is a judicial measure undertaken pursuant to Article 9(5) ICCPR to protect the rights to liberty and to provide an effective remedy. I will not allow anyone to bully me into thinking that I cannot do this in a court that I sit in. In simple terms, this is called JUSTICE.
  26. This case is indeed a harsh lesson for all concerned and collaborative efforts must be put in place to ensure it does not recur. It is trite to say that it is not only brutally costly to the life of a person wronged but also the State. One need only to read up on the unlawful detention cases of Nnamdi v AG[14] and others to know of the adverse repercussions and ramification.

Instant Charges

  1. I do not intend to dwell much on this given the turn of events plus Mareko has already suffered enough. For the present charges for sentence, the court notes the following aggravating factors:
  2. The mitigating factors are:
  3. I must say the remand in custody for approximately 4 weeks on minor charges of this nature is of grave concern. Because of the disproportionate remand in custody pending bail, I am now forced to take that into account as sentence when I had originally entertained a conviction and discharge. But even if I was to sentence Mareko to imprisonment on these charges, it would not be for 1 month. The circumstances of the offending simply do not call for such a sentence even if he was a recidivist.

Orders

1 July 2021 Faamasino Fesoasoani Sentence

  1. The additional two months the FF court unlawfully ordered the defendant Mareko to serve in prison in excess of the prescribed imprisonment term of 3 months’ under s4(g) Police Offences Ordinance, is quashed.
  2. The defendant Mareko has to date, effectively served a custodial time of 4 months and 10 days. The 1 month and 10 days he served in prison in excess of the maximum penalty time is unlawful.
  3. Accordingly, Mareko must be released forthwith without any further delay.

Instant Charges for sentence

  1. On the present charges before me for sentence today, Mareko is convicted and the time he spent in custody from 16/03/21 to 13/04/21 is his penalty noting the lengthy remand in custody is grossly disproportionate to the minor nature of the offences here.

JUDGE A R VIANE PAPALII

[1] Note Clarke J undertook the same approach in P v Agafili when he discovered at mentions that the defendant had served 4 years 8 months in detention in excess of his actual sentence
[2] P v Ludwig Wendt [2018] WSDC 16
[3] Asian Taste v Ah Sam [2017] WSDC 8
[4] Mataafa v Ministry of Revenue [2017] WSDC 21
[5] AG v Otahuhu District Court [2001] NZCA 187
[6] Toailoa v Duffy [2005} WSSC 7
[7] Sapolu v Saaga [2018] WSCA 9
[8] Elias v The Queen [2013] HCA 31; [2013] 248 CLR 483 at [27]
[9] In Markarian v Queen [2005] 228 CLR at [31
[10] Supra n 7
[11] Ibid
[12] See the Purpose statement
[13]R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233
[14] Nmandi v AG [2011] WSSC 91

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