Police v Menefata [2016] WSFVC 7 (5 October 2016)

FAMILY COURT OF SAMOA
Police v Menefata [2016] WSFVC 7

Case name:	Police v Menefata
Citation:	[2016] WSFVC 7
Decision:	5 October 2016
Parties:	POLICE v Sione Menefata, male of Fasitoo tai
Hearing date(s):	8 September 2016
File number(s):	D1039/15.D1040/15.D1043/15.
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	JUDGE LEIATAUALESÃ D M CLARKE
On appeal from:
Order:	- Pay $400.00 Prosecution costs within 14 days and on payment of those costs, you are to be discharged without conviction.
Representation:	I Atoa and Ms F. Lagaaia for National Prosecution Office R. Papalii for defendant
Catchwords:	Possession of unlawful weapon – common assault – Adultery – Possession of an Unlawful Weapon
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123 & s.65 Arms Ordinance 1960 s.12 (1)(2)(3)
Cases cited:	Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011) R v Hughes [2000] NZCA 544,
Summary of decision:

IN THE FAMILY COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

SIONE MENEFATA, male of Fasitoo tai
Defendant

Counsel:
Ms I Atoa and Ms F Lagaaia for National Prosecution Office
Ms R Papalii for defendant

Decision: 5 October 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Sione Menefata, you appear for sentencing on the following charges:
   • (i) One count of possession of an unlawful weapon pursuant to section 12 of the Arms Ordinance 1960 which carries a maximum penalty of 5 years imprisonment or a fine not exceeding $10,000;
   • (ii) one count of common assault in breach of section 123 of the Crimes Act 2013 which carries a maximum penalty of 1 year imprisonment; and
   • (iii) one count of adultery pursuant to section 65 of the Crimes Act 2013 which carries a maximum penalty of $100.00.
2. You initially entered not guilty pleas but these were vacated on 12 July 2016 by leave and substituted with pleas of guilty.

The Offending

3. According to the amended Summary of Facts together with your affidavit dated 7^th September 2016 which was admitted by consent of Prosecution, you were the Officer-In-Charge at the Lotofaga Police Post (“Police Post”). On the 7^th March 2015 at between 10.00pm and 11.00pm, your wife became suspicious of you and believed that you were being unfaithful. She went to the Police Post, you were not present but she found women’s clothing in your office. Your wife stayed at the Police Post overnight and early the next morning at approximately 7.00am, she left. Not long after she left, you returned to the Police Post with a fellow female Police Officer. You both went in to your office together. Your wife returned, went into your office and found you together with the female Police Officer. You accept that you committed an act of adultery. A verbal confrontation occurred between you and your wife and you then left together with your wife.
4. On the 21^st of March 2015, your wife again became suspicious of you. She came with your daughter to the Police Post and a dispute occurred between your wife and yourself. Your wife then scratched your face leaving scratch marks and uttered words to you including ailalafa, paumuku and fia kama mamafa. These statements were made in the presence of your child and within hearing of other Police Officers at the Police Post. You tried to calm her down but as she continued to lash at you and insult you, you slapped her on the cheek.
5. Due to your dispute, your wife reported you to Police for possession of an unlicensed firearm, a 357 revolver. In your affidavit, you have told the Court that the revolver was a Police exhibit in a matter under investigation. As guns in other matters had gone missing from Faleolo Police Station, you said you kept the revolver with you to protect the revolver as evidence. It had first been kept by you in a box in your office at Faleolo Police Station. When you were transferred to Lotofaga Police Post, you took the revolver with you to ensure it did not go missing. You left the revolver in a box at your wife’s family home at Gagaifoilevao in a sealed bag “for safety”. You were subsequently kicked out of that home by your wife and banished from Gagaifoilevao. Your wife reported you to Police for possession of the revolver and the revolver was subsequently recovered when Police executed a warrant on the family home at Gagaifoilevao.
6. As a result of your offending, you were banished from your wife’s village of Gagaifoilevao Lefaga. You were also fined $7,000.00.

The Accused

7. You are a 44 year old male of Fasitoo-tai. You are married with 3 children and are a serving Police Officer. You have been a member of Police Service since 1993. Since these incidences occurred last year, you have been suspended from the Police Service. From the Bar table through your counsel, I am told you have been suspended with pay since approximately April 2015.
8. Your member of Parliament for Aana Alofi No. 3 Constituency which includes the village of Fasitootai addressed the Court at your sentencing hearing and also provided a written reference in support of your character. He speaks of your dedication to your community, you being a devout member of your village council and as a responsible and disciplined man. He spoke of the serious crime issues in the constituency and the important role you have played in your village council in educating your fellow matai and addressing crime in the constituency.
9. The Acting Commissioner of Police Afamasaga Michael Soonalole has also provided a written reference in support of you. He speaks of you as a self-disciplined, mature, reliable and honest person. He says that you are “a talented person with very good leadership and management skills.” In his further reference dated 1 October 2016, he outlines the extensive work you have carried out in the Ministry of Police in respect of counter-terrorism, disaster management, customer service, investigations and leadership. You have also been commended by your superiors on deployment overseas in Solomon Islands for your professionalism and commitment according to Afamasaga Soonalole. He concludes that your chances of further training locally and internationally may be hindered if you are convicted.
10. Similar glowing references as to your character are given by Le Mamea Su’a Tiumalu from Faleolo Police Post, Su’a Mataali’i Pasina your family matai and Lumafu Tagoiaega Maotua Levi of the Alii and Faipule of Fasitotai.

The Victim

11. The victim of your offending is your wife. She is a 41 year old female of Gagaifolevao Lefaga. The Probation Service confirms that you have apologized and reconciled with your wife. She has addressed the Court this morning and reiterated this and has asked the Court for leniency.

Aggravating features of Offending

12. The aggravating features of your offending are as follows:
    • (a) The offending occurred in your workplace and whilst you were apparently on duty;
    • (b) Your assault on your wife is a matter of domestic violence which by itself is an aggravating feature of your offending;

(c) Your assault was in the presence of your daughter; and

(d) The firearm was evidence in a Police investigation.

The mitigating features of your offending

13. In respect of the assault, I accept that there is an element of provocation in the statements made to you by your wife and in her assaulting you.

The aggravating factor relating to you as an Offender:

14. You are a first offender and there are therefore no aggravating features personal to you as an offender.

The mitigating factors relating to you as an Offender:

15. Firstly, I take into account that you entered a guilty plea. Whilst this was not at the earliest opportunity, you nevertheless receive some credit for your guilty plea.
16. Secondly, I take into account that you had been banished by Gagaifo Lefaga and paid a fine to that village of $7,000.00 as I am required by the Village Fono Act 1990 and the Community Justice Act 2008.
17. Thirdly, I accept that you are genuinely remorseful and have taken responsibility for your actions. This was evident in your presentation and demeanor before the Court, through what your counsel submitted to the Court, your guilty plea, apology to your wife and in what has been said in the Probation Service Pre-Sentence Report and by your wife herself.
18. Fourthly, I take into account your reconciliation with your wife and her forgiveness of you and her request for leniency. You have taken the steps necessary to rebuild your family and your life.
19. This matter was not listed before the Family Violence Court and you did not therefore get the benefit of the programs available there in mitigation of sentencing. Given the very long delay in reaching this point for your matter and the fact that you have reconciled with your wife and are genuinely remorseful, I have not referred you to programs as that would simply add further delay and uncertainty to you and your family and would not in the end meet the interests of justice.

Application for a discharge without conviction

20. You have asked the Court to exercise its discretion in favour of a discharge without conviction under section 104(1) of the Criminal Procedure Act 1972. The basis of your application is because of your remorse. You said if convicted, your employment would be terminated.

Discussion

21. Section 104 of the Criminal Procedure Act 1972 provides as follows:
    • "If after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence, is of the opinion that, although the charge is proved:

(a) the offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment; or

(b) Having regard to the age or some other special circumstance of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed; it may discharge that person without convicting her or him unless a minimum penalty is expressly provided for the offence by any enactment. ”

22. In Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011), a sentencing decision of His Honour Sapolu CJ, the Supreme Court granted a discharge without conviction to an officer who was found guilty of common assault after a defended hearing. The relevant approach in determining the question of whether to discharge an accused without conviction under 104 (1)(b) under Criminal Procedure Act 1972 adopted in Police v Papalii and Moalele (op. cit) is the three step approach that was indentified in the case of R v Hughes [2000] NZCA 544, as derived from the judgment of Richardson, J in Fisheries Inspector v. Turner [1978] 2 NZLR 233. The three step approach is such that the Court must firstly consider the gravity of the offending; secondly, the consequences of a conviction, and finally whether these consequences are out of all proportion to the gravity of the offending.
    • (i) The gravity of your offending
23. In terms of your assault, you slapped your wife once. This occurred in the precincts of the Police Station at Lotofaga and in the presence of your child. This however followed insults made against you in the Police Post by your wife and your wife having scratched your face leaving scratch marks. There is no evidence of any injuries suffered by your wife from the slap. Whilst your assault cannot be said to be at the lowest end of the scale of this type of assault, it is also not at the most serious or grave. There is an element of provocation. It is however at the lower end of seriousness.
24. In terms of the charge of being in possession of an unlawful weapon, you have set out the reasons why you had possession of the weapon in detail in your affidavit. You say in your affidavit that you kept the gun to the evidence as other guns had disappeared from Faleolo Police Post. You had done the same with another gun that was returned to Police at the end of that matter. That affidavit is not contested by Prosecution. In the circumstances, your possession of the firearm is also at the lower end of of the gravity of offending and falls well short in my view of warranting a custodial sentence.
25. In relation to the charge of adultery, your offending cannot be said to be serious offending in its context.
    • (ii) The consequences of a conviction on you
26. Your counsel submits that “the consequences of a conviction” on you is that it may lead to your termination and refers to 51B of the Police Service Act 2009. She also refers to the termination of Constable Meaalofa Hakai by the Police Commissioner following conviction.
27. If you are convicted, I note that there are various penalties that may be imposed upon you by the Commissioner including no punishment at all, you be fined an amount not exceeding $2,000.00, you be discharged despite the charge proven, you be cautioned or you be dismissed. Where you are dismissed, you have a right of appeal under the Police Service Act 2009 to the Appeal Board presided over by a Judge. I do however accept that there is a risk of termination of your employment by the Commissioner but that you do also have appeal rights if you are terminated.
28. You are a long serving highly trained Police Officer with a distinguished Police record. You have played a critical role both in your village council and as a Police Officer. You have been highly commended by Acting Commissioner Afamasaga Michael Soonalole and your service has been recognized by your superior officers on mission overseas according to AC Soonalole. A conviction against you places your participation at future trainings at risk, particularly those trainings overseas. In my view, given your experience, role and promising future in the Samoa Police Service, a conviction against you will have a significant impact on you.
    • (iii) Whether the consequences of a conviction will be out of proportion to the gravity of your offending.
29. In all and for the reasons that I have stated, I find that the consequences of a conviction are out of all proportion to your offending.
30. I want to make mention of an aspect of this matter for future reference. You pleaded not guilty on the 19^th May 2015. Four hearing dates were then set and vacated due to unavailability of counsels, including Ms Peteru who was counsel for your co-defendant. On the fifth hearing date in July this year, the not guilty pleas were vacated and a guilty plea substituted following withdrawal and dismissal of some charges. More adjournments then again followed before we have reached this stage in October 2016.
31. During the intervening 18 months since you were first charged in April last year, you have been suspended with pay. This is at significant cost to the tax payer. Whilst you have been paid, I have no doubt that the delay will have been a heavy burden on you in terms of uncertainty around your future, your career as well as the stress that these types of proceedings naturally involve. I strongly encourage prosecution and defence counsels to proceed with matters before the Courts in an expeditious manner to avoid unnecessary delay, cost and uncertainty for all involved as has occurred here.

The penalty

32. You are to pay $400.00 Prosecution costs within 14 days and on payment of those costs, you are to be discharged without conviction.
33. I thank all counsels for their helpful submissions and supporting documentation.

JUDGE LEIATAUALESÃ D.M. CLARKE