Police v Finau [2012] WSSC 95 (3 September 2012)

SUPREME COURT OF SAMOA

Police v Finau [2012] WSSC 95

Case name: Police v Finau

Citation: [2012] WSSC 95

Decision date: 03 September 2012

Parties:
THE POLICE v ALENI FINAU, male of Moataa

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution

Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Timu [2006] WSSC 1
Police v Tinifu 07 May 2012

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND

ALENI FINAU, male of Moataa.

Defendant

Counsel: Ms L Taimalelagi for prosecution

Defendant unrepresented

Sentence: 03 September 2012

SENTENCE

The defendant is a 19 year old male of the village of Moataa and appears for sentence on one charge of kidnapping and one charge of threatening words. Kidnapping is not a common offence in this country. Even less common is the kidnapping of a 4 year old child as carried out by the defendant.

The child in question is the son of the complainant who began living with the defendant in October 2011, when the defendant moved in to the complainants family and began living with her. However the relationship did not go smoothly because the documents before the court indicate that by November 2011 the defendant had been evicted by the complainant and her family because as she says in her statement:

“Tusa e le’i atoa lelei se lua masina ua ma nonofo ae ma toe tetea ona ua iloa e le matou aiga le leaga o lana amio ma le matagaoi. Mai lava i lena taimi ma te le’i toe nonofo ua le toe mananao iai le matou aiga e oo foi ia te a’u ua leai ma sou toe fiafia iai.”

The material before me also indicates that the defendant had been banished from his village of Moataa for various other misbehaviours and that he faces a raft of criminal charges in the District Court to which he has pleaded guilty and for which he is awaiting sentence. The defendant is obviously a problematic individual.

The police summary of facts which the defendant has confirmed states that on Saturday 16th of June this year the defendant met up again with the complainant in Apia. Despite her not wishing to talk to him he followed her around that day. Even to following her to her cousins house at Fagalii where she was then residing. The complainant felt sorry for the defendant and relented and allowed him to spend the night there. The next day the complainant went to work at Vaitele and left her son in the care of her cousin.

The complainant did not return to Fagalii that night and slept over at some friends. The next day after work she rang her cousin to check on her son. She was informed by her cousin that the defendant had come earlier that day and taken the child saying that he would return him but that has not occurred. The defendant is not the natural or the biological father of the child and only knew the child through his association with the complainant. The day turned into night and the defendant had still not returned with the child, at which point the complainant became concerned and began looking for the two of them.

The summary of facts relates that she was able to make contact with the defendant by telephone and asked for the child to be returned. His reply was “ ua ou malie e fasioti le tama e taui ai le mea a le tou aiga lea e fai ia te a’u”. The complainant immediately reported the matter to the police and the police began looking for the defendant and the missing child. At some point they managed to contact the defendant by phone however the defendant kept giving them misleading information as to their whereabouts.

The police kept looking and another 24 hours passed before at about 5:00pm on Friday 22 July the police received a report of the defendant being sighted at a family at Maagiagi. By this time the child had been missing for about a day and a half. On arrival at the family at Maagiagi they discovered the defendant and the child and the defendant when he spotted the police ran away. Whereupon the police were able to collect the child and return him safely to the complainant. There is nothing in the material before me to indicate that the child was in any way harmed or injured or any worse the wear for his ordeal.

At some subsequent date the police were able to locate and apprehend the defendant. Charged him and placed him into custody. When his case was called he pleaded guilty to the charge of kidnapping and the charge of using threatening words.

The crime of kidnapping carries a 10 year maximum penalty according to law. In Police v Timu [2006] WSSC 1 a defendant who kidnapped an 8 year old for sexual purposes was imprisoned by this court for 2 years for what he did. A similar term was imposed in Police v Tinifu on the 07 of May this year. Both those cases involved first offenders who had pleaded guilty. While this was a kidnapping not for a sexual purpose it is clear the defendants aim was to use the child to get back at the complainant and/or her family. I cannot say whether he genuinely intended to harm the child or whether he would have carried out his threat to kill the child. It seems to have been an empty threat because there is no evidence he harmed or mistreated the child. But it was a threat to do harm nevertheless. It is that aspect which makes the offending no less serious than the abduction in those previous cases of children for sexual purposes.

Having regarded to the gravity of the offending and the circumstances of the matter in particular the young age and vulnerability of the child. Plus the fact that the defendant was known to the child and would therefore have been trusted by the child. Knowledge which the defendant doubtless exploited to take and keep the child under his control for almost two days. A penalty of 6 years in prison is appropriate for what you did. However I deduct from that one-third of the term which is a period of 2 years for your guilty plea. Because that has saved the time of the court and the need for the mother and the young child to come to court and relive their horrible and traumatic experience. From the balance of 4 years of sentence I will make a further deduction in acknowledgment of the fact that you are only a young man, 19 years of age and have a clean record. For that I deduct a period of one year leaving a 3 year balance.

In respect of that I will make allowance for what is contained in the victim impact report in relation to the reconciliation where it says as follows: it says that the defendant apologized to the complainants mother over the phone and the mother indicated that the defendant cried and was very remorseful. It further states the defendant requested that they visit him while he was in custody and the child and his mother did visit where he again apologized and cried to them and also apologized to the young boy. The report further says that the mother accepted the apology and told the defendant not to ever contact her and her child again. For those matters I will make a further deduction from your 3 year balance of 1 year leaving two years.

On the charge of kidnapping information S1280/12 you will be convicted and sentenced to a period of 2 years in prison. Your time spent in custody awaiting sentence is to be deducted from that. I also issue as part of the courts judgment in this matter a non-molestation order prohibiting you from ever contacting either personally or through any medium electronic, telephonic or otherwise either the complainant or her son. This order extends to any effort by you to use any intermediaries to make contact with either the complainant or her son. That order is to remain in force permanently until modified by any further order of this court. And be warned Mr Finau break this order at your peril.

In respect of the second charge against the defendant information S1281/12 of threatening words, curiously although the words used were serious the prosecution have chosen to charge the defendant not under the criminal legislation but telecommunications legislation. Under that legislation the maximum penalty is some minor fine only. On that information S1281/12 the defendant will be remanded in custody to be the District Court to be dealt with on 14 September 2012 with all the other charges pending against him in that court.

............................

JUSTICE NELSON