Police v Faafetai [2013] WSSC 55 (5 September 2013)

SUPREME COURT OF SAMOA

Police v Faafetai [2013] WSSC 55

Case name: Police v Faafetai

Citation: [2013] WSSC 55

Decision date: 5 September 2013
Parties:
POLICE (prosecution and TAFUA LAPALII FAAFETAI male of Vailoa and Tafua (accused)

Hearing date(s):

File number(s): S1395/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
F E Niumata for prosecution

Catchwords:

Words and phrases:
Legislation cited:
Crimes Act 2013

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S1395/13

BETWEEN

P O L I C E

Prosecution

A N D:

TAFUA LAPALII FAAFETAI male of Vailoa and Tafua.

Accused

Counsel: F E Niumata for prosecution

Accused in person

Sentence: 5 September 2013

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of causing intentional damage to property, contrary to s.184 (2) (a) of the Crimes Act 2013, which carries a maximum penalty of seven years imprisonment. She pleaded guilty to the charge at the earliest opportunity.

The offending

2. In June 2013, the accused cut down or damaged about fifteen posts of the complainant’s cattle farm at Vailoa, Aleipata. The posts of the complainant’s fence were tree branches.
3. The accused told the Court that the complainant’s fence trespasses on her family’s land and her family had filed a petition in the Land and Titles Court seeking an order to have the complainant’s fence removed. On 30 September 2011, the Land and Titles Court delivered its decision that the pule of the land in question belongs to the matai title of the accused’s family. However, since the decision of the Land and Titles Court the complainant has not removed his fence. The family of the accused has approached the police and the office of the Land and Titles Court on a number of occasions to enforce the Court’s decision but no assistance has been forthcoming. The complainant still keeps his fence on the land decided by the Court to belong to the accused’s family. This must have been extremely frustrating for the accused and her family. So in June this year, about one year and nine months after the Land and Titles Court’s decision had been delivered, the accused had had enough and therefore cut down or damaged about fifteen posts of the complainant’s fence.
4. The conduct of the complainant in building his fence on the land of the accused’s family and of failing for one year and nine months to comply with the decision of the Land and Titles Court must be highly provocative to the accused and her family.

The accused

5. The accused is 54 years old. She is a first offender. As it appears from the pre-sentence report and the testimonials from the pastor and pulenu’u of the accused’s village, she is a person of good character.

Discussion

6. The complainant has been trespassing on the land of the complainant’s family by building and keeping his fence on the land of the accused’s family for a long time. The matter was taken to the Land and Titles Court for an order against the complainant to remove his fence. On 30 September 2011, the Land and Titles Court ordered the complainant to remove his fence. Up to now the complainant has not removed his fence. The accused says that her family has been to the office of the Land and Titles Court and the police on a number of occasions for assistance in enforcing the decision of the Land and Titles Court. No assistance has been forthcoming. The accused, in June 2013, then damaged about fifteen posts of tree branches of the complainant’s fence. The complainant then lodged a complaint with the police against the accused. The police then charged the accused for causing damage to the complainant’s fence even though the accused and her family had been complaining to the police on a number of occasions about the complainant’s fence. Obviously, there is something wrong here.
7. If the complainant wants the protection of the law for his fence, then he should have first obeyed the law and remove his fence. It seems wrong for the complainant to seek the assistance of the law for his fence when such fence is being kept on the land of the accused’s family contrary to the decision of the Land and Titles Court. To punish the accused who has been seeking assistance from the office of the Land and Titles Court and the police on a number of occasions is likely to give the impression that this Court is condoning the continuing disobedience by the complainant of the decision of the Land and Titles Court for him to remove his fence from the land of the accused’s family. A conviction against the accused’s name would still be a form of punishment.

The decision

8. Having given careful consideration to all the circumstances of this matter, the accused is discharged without conviction. The accused, however, must take a copy of this decision to the police so that the decision of the Land and Titles Court be enforced so that there will be no further offending arising from this matter.

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution