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Police v Moananu [2024] WSDC 3 (5 July 2024)

IN THE DISTRICT COURT OF SAMOA
Police v Moananu [2024] WSDC (05 July 2024)


Case name:
Police v Moananu


Citation:


Decision date:
05 July 2024


Parties:
POLICE (Informant) v SALALE MOANANU (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
District Court- CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Atoa-Saaga


On appeal from:


Order:
For the charge of Presentation of a firearm and being armed with a dangerous weapon I hereby convict the Defendant to come up for sentence in 12 months. In respect of the charge of threat to kill which he pleaded guilty to, he is discharged without conviction.


Representation:
Mr. Natia for Prosecution
Ms. Lui for Defendant


Catchwords:
Presenting firearm-armed with dangerous weapon-threat to kill


Words and phrases:


Legislation cited:


Cases cited:
Attorney General v Ropati [2019] WSCA 2;
Police v Kalolo [2019] WSFV 2;
Police v Sua [2014] WSSC 80.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U


BETWEEN:


P O L I C E


Informant


A N D:


SALALE MOANANU male of
Vaitele Uta


Defendant


Counsels: Inspector Solomona Natia for Prosecution

Ms. Lui for Mr. Moananu


Hearing of Submissions: 7th June 2024
Decision: 5th July 2024


DECISION OF JUDGE ATOA-SAAGA

INTRODUCTION


  1. The Defendant is the Chief Executive Officer of the Samoa Sports Facilities Authority (SSFA). After a defended hearing, he was found guilty of two charges of presenting firearm and armed with a dangerous weapon. He also pleaded guilty to one charge of threat to kill.
  2. Presentation of a firearm under Section 15 of the Arms Ordinance 1960 attracts a maximum imprisonment term of 2 years.
  3. Armed with a dangerous weapon under Section 25 of the Police Offences 1961 which attracts maximum imprisonment term of 1 year.
  4. The Defendant also pleaded guilty to one Charge of Threat to Kill pursuant to Section 188 of the Crimes Act 2013 which carries a maximum imprisonment term of 5 years.
  5. He is now applying for a discharge without conviction.

PERSONAL CIRCUMSTANCES

  1. The Defendant is 58 years of age. He is married and has 4 children and 4 grandchildren. He lives at Vaitele with his family.
  2. Mr Moananu holds 3 paramount chiefly titles. Iuli from Falefa, Moefaauo from Lulilufi and Fea from Musumusu Fagaloa.
  3. The Defendant was born and raised at Falefa until he was 8 years old. He also schooled at Falefa until they moved to Toomatagi where he attended Magiagi Primary School, Marists Primary School, St Josephs College, Catholic Senior School, National University. He was awarded a scholarship to study at the University of South Pacific in Suva. He graduated from Fiji with a BA in accounting and economics.
  4. He has been the Chief Executive Officer for SSFA since 2010. This is his fifth term as a CEO. He has been involved in the coordination of all major events at these facilities. Prior to his appointment as CEO, he has worked at Samoa Land Corporation, Price Waterhouse and Government Audit Office.

SUMMARY OF THE OFFENDING

  1. On the 2nd July 2022, the Defendant while driving a Ford Ranger with number plate SSFA 02 swerved suddenly in front of the vehicle driven by the Complainant in a queue of vehicles on the main road in front of Maota o Samoa. The Complainant was in the vehicle with his wife. The Defendant’s actions caused the Complainant great anxiety and anger as the vehicle was a Government vehicle.
  2. The Complainant chased after the vehicle driven by the Defendant and at the corner of the road opposite Jehovah’s Witnesses’ Compound, he overtook the Ford Ranger and yelled out, “Keke faalelei ou maka I luma o le auala kele ma le kupu o le lavevea o kaavale.”
  3. The sudden overtaking of the Ford Ranger caught the Defendant by surprise and resulted in the Ford Ranger vehicle driven onto the pedestrian footpath and off the road.
  4. The Defendant immediately after driving off the footpath, chased after the Complainant’s vehicle. Just before the intersection at Nuu, the Complainants heard the Defendant yell out, “E te fia ulavale?” and “Vaai oe I ou alu atu faga oe.”
  5. The Complainant and his wife continued driving up the road to Nuu. They drove off the main road and parked their vehicle on the side of the main road at Nuu.
  6. The Defendant drove up to the vehicle and parked adjacent to their vehicle while still on the main road. He yelled out to them, “E te fia ulavale?”Vaai oe I ou alu atu faga oe.” The Complainant responded, “ Aua le faatautala I taavale a le Malo ma le tutupu o faafitauli.”
  7. The Defendant reached to the back of the vehicle. The Complainant and his wife both saw the barrel of the gun through the window of the vehicle before they saw him throw the gun to the back of the vehicle.
  8. The Complainant was momentarily stunned but after recovering from the shock, exited his vehicle and walked towards the Defendant’s vehicle. He challenged the Defendant to shoot him.
  9. The Defendant drove off with the Complainant following after him. The chase stopped for a while near the intersection at Vaitele opposite the Horse Racing Track. There was a confrontation of the Defendant by the Complainant. As the Traffic cleared, the car chase continued and ended at the Sports Complex.
  10. After exiting the vehicle, the Defendant approached the Complainant and tried to apologise to the Complainant. The Complainant refused to engage in a conversation with the Defendant and called the Police and reported the gun at the back of the SSFA 02 vehicle.
  11. the Police arrived they found the gun at the back of the Ford Ranger. The gun was loaded. The safety of the gun was on.
  12. It was only then both the Complainant and the Defendant were cognizant of their respective professions. The Complainant is a Police Officer. The Defendant is the Chief Executive Officer of SSFA. Both were at the time of the incident off duty.

APPLICATION FOR A DISCHARGE WITHOUT CONVICTION

  1. The grounds for filing of the application for a discharge without conviction:
  2. Prosecution opposes the application on the grounds that:
  3. Police seeks a conviction. Prosecutor further submits that should the Court should consider a discharge without conviction, then the Defendant is to pay court costs of more than $2,000.

LAW ON DISCHARGE WITHOUT CONVICTION

  1. Section 69 of the Sentencing Act 2016 provides:
  2. Section 70 of the Sentencing Act provides that, “The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.
  3. The Court of Appeal in Attorney General v Ropati [2019] WSCA 2 stipulated the factors that the Court must consider:

GRAVITY OF THE OFFENDING

Aggravating Factors of the offending

  1. Being armed with a gun in a vehicle on the main road is a threat to the general public.
  2. The Defendant pointed a loaded firearm at the unsuspecting victims. The victims were in their vehicle and were a meter away. The loaded gun was pointed at them from the window of a Government vehicle.
  3. Prior to brandishing the gun, the Defendant yelled out to the Complainants, “Vaai oe I ou alu aku iga faga oe.”
  4. The Defendant should have managed his anger. He was in a Government vehicle. He had a gun in his car. Irrespective of whether he had a legitimate reason for carrying that gun in the car and that he had a valid license to use a gun, a gun should never be pointed at another person or people in a public place.

Mitigating factors of the offending

  1. Defence Counsel submits that the safety of the gun was on and that there was no intention on his part to follow through with his threat, “Vaai oe I ou alu aku iga faga oe.
  2. There was an element of provocation on the part of the Complainant. The Complainant was the initiator of the dispute. He chased after the Defendant and his actions in driving up to the close to the Defendant to voice his anger, caused the Defendant to drive off the road onto the footpath.

Aggravating factors as an offender

  1. None

Mitigating factors as an offender

  1. The Defendant is a first offender.
  2. It is submitted that the Court consider the Defendant’s humble beginnings and his personal circumstances as earlier outlined.
  3. The good character of the Defendant is attested in six supporting references from
  4. The commonality across all the references is that the Defendant is an outstanding leader within the Community. He is a long serving Chief Executive Officer who is known for his reliability, trustworthiness and dependability. The Defendant played a pivotal role in the development of SSFA. He also played a key role in the successful hosting of major events in Samoa.
  5. The Defendant was ordained as a lay preacher in 2020. He is co Chairperson of his congregation. He is also part of the Church Choir and the Youth Ministry. He is seen as a role model in his community and in his Congregation. He also plays an instrumental role in the Multipurpose Committee (“Komiti of Feau Eseese”) which oversees all the major developments for the Churches within his constituency. He provides counselling and mentoring for the young men of the village.
  6. The Defendant is a respected chief within the village. He has faithfully served his village and his constituency. He also gave $5,000 to the village council for bringing into disrepute the title Iuli.
  7. The Defendant is a devout husband, father and grandfather. He is the main provider for his immediate family and contributes also to the development of his extended family and community. He has developments to assist him financially.
  8. The Defendant is fully remorseful for his actions.
  9. He apologized to the Defendant on the date of the incident and on 4th October 2023.
  10. The Defendant voluntarily attended a rehabilitation program conducted by SVSG. Sister Jacinta Fidow has provided a supporting reference vouching of the successful completion of the program. She describes the Defendant as a humble person who willingly interacted with other men also attending the anger management program and shared openly with them his story and lessons learnt from the program.
  11. In assessing the gravity of the offending, I find the mitigating factors have shifted the gravity of the offending from high to moderate.

Direct and indirect consequences

  1. The Defendant is the Chief Executive Officer of SSFA. There is a proposed merger between the SSFA and the Ministry of Sports and Recreation which requires the readvertising of the Chief Executive position of the merged Ministry. It is submitted that a conviction on his record will affect the reconsideration of the Defendant for this position and affect other job opportunities that he may wish to apply for including travelling opportunities
  2. The Defendant further submits that he may also lose his position as a Aoao Fesoasoani as it is unacceptable for someone with a conviction to hold this position. The same reason will also affect his position within the General Committee of the EFKS Church.
  3. The Defendant has also considered running in the future elections for his Constituency and it is submitted that a conviction will affect his opportunity to run in the elections.
  4. Additionally, it is submitted that the Defendant’s chief orator role will be undermined if a conviction is entered against the Defendant as the role demands respect.
  5. Having considered the submissions, I find that there is a real and appreciable risk that the Defendant will not be eligible to reapply for the Chief Executive Officer position of the new Ministry if a conviction is entered
  6. Nevertheless, I do not find that there is a real and appreciable risk that his political aspirations will be compromised. The Defendant is still a Chief Executive Officer. There is no confirmation that he will be running in the next upcoming elections. Similarly, if a conviction is imposed, there is a stand down period of 8 years[1] should the Court impose a conviction on the charge of threat to kill.
  7. As submitted by Defence Counsel, this matter has been in the public forum and on social media. The non imposition of a conviction is not going to change the narrative of what has already been reported. It is part and parcel of being a Senior Public Official that any inappropriate actions of any Official is reported and is subject to public scrutiny. In this case, a public vehicle was involved.
  8. The Church leaders have provided supporting references acknowledging the commission of the offence by the Defendant but seeking the leniency of the Court. The mayor of the Village has acknowledged the receipt $5,000 from the Defendant in acknowledgement of the offence which further attests of the integrity of the Defendant. They all vouch for the good character of the Defendant and attest of their unwavering support for the Defendant.
  9. It is my respectful view, that it is the leaders who have vouched their continual support for the Defendant to determine the eligibility of the Defendant to continue with his duties within the Church Ministry and within the Community. It is not for the Court to make that determination or not to impose a conviction to assist the Defendant in rebuilding his reputation within the Community that was adversely affected when this matter was reported by the media.

Disproportionality Test

  1. The disproportionality test requires the weighing by the Court of the consequences of the conviction on the Defendant against the gravity of the offending which I have found to have shifted from high to moderate because of the mitigating factors in favor of the Defendant.
  2. The application for the Court not to enter a conviction against the Defendant premises on the impact of a conviction on his eligibility to reapply for the Chief Executive Officer position of the newly created Ministry of Sports and Recreation and to pursue his political aspirations in the future. It has also been submitted that a conviction will affect his leadership position in church and in the village as an orator.
  3. The Defendant was found guilty of three charges the most serious of which is presentation of the firearm. While the maximum imprisonment for the charge of threat to kill is five years, the words were to the Complainant and his wife empty threats. The Complainant and his wife were both unaffected and were not apprehensive when the Defendant uttered the words. The words spoken by the Defendant also were proportionate to the sudden intervention by the Complainant on the road and the words the Complainant uttered against the Defendant on the road. It was only when the gun was pointed at them that the words became a reality to them.
  4. The brandishing of a gun on a public road at people in a vehicle is serious and irrespective of whether I have found the gravity as moderate it does not diminish the seriousness of the offence. There have been increasing number of firearms brandished in the public recently which is a cause of serious concern. Guns must not be brandished in public under any circumstances. It is a matter of public safety.
  5. It is the public safety also that I must weigh against the personal circumstances. It is my respectful view, that there is no disproportionality in a conviction being imposed on the Defendant for the presentation of the firearm at the Complainant and his wife and for being armed with a gun on the public road.
  6. In Attorney General v Ropati [2019] WSCA 2, the Court of Appeal stipulated that
  7. At para 65

EXERCISE OF MY DISCRETION.

  1. Defence Counsel referred the Court to Police v Sua [2014] WSSC 80 in support of the application for a discharge without conviction. In that matter, the Defendant was charged with intentional damage, threatening remarks and threat to kill. The Defendant found his mother crying, threw a rock at the window and threatened to kill the victim. The Defendant was a Police Officer. The Court discharged the Defendant without conviction.
  2. I wish to distinguish that case from this case. There is a difference in being armed with a stone in a private setting and being armed with a gun on a public road. To discharge the Defendant without conviction on the charge of presenting of firearm at members of the public on a public road is a precedent that I do not want to set. Senior public officials are role models. They set the standard for every citizen to follow and uphold and the Court must not set a standard in which the interest of a Senior Public Official outweighs the need to deter people from the commission of this type of offence which is a public safety issue. It is unfortunate that this Defendant who has had an impeccable and unblemished record and who has served the Government wholeheartedly may now lose the opportunity to re-apply for the Chief Executive Officer position of the newly merged Ministry. Nevertheless, everything rises and falls on leadership.
  3. There should not be partiality in the administration of justice. There should not be a different standard that is applied to public officials and a different standard for ordinary citizens of Samoa who are found guilty of pointing firearms at other members of the public on the road.
  4. Road rage can happen to anybody. If the Court should consider appropriate to discharge the Defendant without conviction to secure his eligibility to reapply for the Chief Executive Officer of the newly created Ministry and to pursue in the future his political aspirations, then the Court is bound to discharge other ordinary citizens of this Country who commit the same offence of pointing loaded guns at members of public on a public road. I have also imposed custodial sentences in two cases involving presenting of firearm in a public place[2]. The distinguishing factor between those two cases and this case however is that there are compelling mitigating factors and personal circumstances in favor of this Defendant which justifies the imposition of a non custodial sentence.

APPROPRIATE SENTENCE

  1. For the charge of Presentation of a firearm and being armed with a dangerous weapon, I hereby convict the Defendant to come up for sentence in 12 months.
  2. In respect of the charge of threat to kill which he pleaded guilty to, he is discharged without conviction.

JUDGE ATOA-SAAGA

[1] Section 8(2)(d)(i) of the Electoral Act 2019.
[2] Police v Kalolo [2019] WSFV 2.

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