Police v Palemene [2007] WSSC 59 (6 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

LAFAELE PALEMENE
male of Moataa and Iva Savaii
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Lui for prosecution
Mr Latu for defendant

Sentence Date: 06 August 2007

SENTENCE BY JUSTICE VAAI

Defendant you now appear for sentence on two charges, one of theft as a servant for which you are liable to 7 imprisonments and one charge of possession for which you are also liable to 7 years imprisonment. Both offences occurred in 2005. I will deal first with the charge of theft as a servant.

This offence took place on the 23rd of September 2005 when you were caught trying to steal some cartons of corned beef to the value of $762.00. You concealed these goods elsewhere for the purpose obviously of taking them away when you finish work but luckily for you for purpose of this sentence you did not manage to move those goods away. You were caught. By stealing from your own employer you breached the trust that your employer placed upon you as a worker. It also appears to me that this was a premedidated offence. You were stacking them somewhere else for later removal from the place of work. I have read the probation report and I have also listened to your counsel. You have two previous conviction one was committed in 2003 and one was in 2004, this is the first time that you have been convicted of an offencing involving dishonesty. In your favour I take into account that you pleaded guilty to the offence. There was no loss to employer and the value of the goods is relatively small. I do not intend to impose a custodial sentence accordingly I will adopt the recommendation of the probation service and place you on probation for 12 months.

I now come to the offence of possession of narcotics. For this offence anybody who is convicted must expected a term of imprisonment. On the 21st May you were released from Tafaigata Prison for the weekend parole. As a result of a telephone call received by the police, the police came and arrested you and took you back to Tafaigata Prison. You were searched and narcotics were found on you. Despite that search you enter a not guilty plea and the defendant hearing was conducted. The police were taken to the expense of sending those samples of the illegal drugs to New Zealand for testing. As a result of the defended hearing which was done heard me on the 29th June 2007 I found you guilty and remanded you in custody that day. You have been in custody for a period of 4 weeks. As I have said the normal punishment to impose custodial sentence for anyone who appears for sentence on this type of offence. It is a very privalent offence and that is why the court must always impose custodial sentence and in the circumstances a custodial sentence should be imposed here. My task this morning therefore is how long I should send you to prison.

During the defended hearing of the charge, a police officer who has served at the prison for the last 19 years told the court in his testimony that the accused was placed in the punishment cell commonly known as No 9 cell. He was placed in there naked for 7 days. Upon questioning from the bench he frankly told the court that it has been the practice for the 19 years he served at the prison to place naked prisoners in that cell for punishment. This practice which is obviously considered by prison authorities as normal and not out of the ordinary has been kept secret from the public eye for many years. Counsel for the defendant told the court that for the 7 days the defendant was in the punishment cell he was not given food.

As a matter of curiosity I visited the prison after obtaining the necessary permission; I was accompanied by Deputy Registrar Latu Kioa and upon arrival at the prison we were at our request escorted by Chief Inpsector Ulugia Mata’u Matafeo and several other police officers to a concrete building which housed the remand cells and the punishment cell. We entered the concrete building at about 3:15pm. The main and only door to the building is in the middle on the eastern side. The windows (about 4 of them) which are the only source of light and ventilation into the building are located at the top of the wall; they are openings in the concrete walls with steel bars across them.

We entered the main door and turned right. The holding cells were to our left; they were concrete cells with one open window on the steel door. The open windows are similar to the windows of the building ie. steel bars across. I saw inmates with their faces by the window behind the steel bars but could not identify them due to lack of light.

At the very end of the corridor is the punishment cell. It is similar to the holding cell except the only source of light and verletilation is a small square opening the top of the steel door about 6 square inches. When I looked inside I could not see anything. It was dark. When the door was opened I saw a naked youth on the concrete sitting leaning against the wall. He naturally reacted by covering his private part with his hands. The cell was a bare concrete structure. The only other object in the cell was a small container which the prison authorities termed a toilet. The cell stank. I did not ask questions whether he was deprived of food as alleged by the accused in this case. I cannot imagine anyone eating in a solitary cell where the smell of urine and excrement is prevalent. He sleeps naked on the concrete floor and subject himself to the mercy of mosquitoes at night. With a small square hole as the only source of light the prisoner lives in darkness most of the time.

To strip naked any person and place him in a concrete cell, termed the punishment cell and leave him naked for 7 days and 7 nights in almost total darkness for that period of time is beyond comprehension, unthinkable to say the least and in human indeed. For a nation which boasts to be founded on God and christian principles; a nation with a written constitution which guarantees basic human rights to all its citizens, the practice within our prison to subject our prisoners to isolation in total nuditity in almost total darkness for 7 days and 7 days surely should not be condoned. You have served over 4 weeks in custody and I deem that sufficient together with the harsh punishment that was place on you by the prison authorities to be the sufficient punishment for this offence.

You have been in custody for over four weeks. You were placed in the punishment cell for seven days before you charged with this offence. I deem that to be sufficient punishment for this offence.

JUSTICE VAAI

Solicitors
Attorney General’s Office Apia, for prosecution
Latu Ey for defendant