Police v Apineru [2013] WSSC 89 (24 December 2013)

SUPREME COURT OF SAMOA

Police v Apineru and Feliuai [2013] WSSC 89

Case name: Police vs Apineru and Feliuai

Citation: [2013] WSSC 89

Decision date: 24 December 2013
Parties:
POLICE (prosecution) and SEUSEU APINERU and ALAVINE FELIUAI males of Nono’a, Saleimoa

Hearing date(s):

File number(s): S1269/13, S1268/13, S1087/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
F Lagaaia and O Tagaloa for prosecution
Accused in person

Catchwords:
Words and phrases:
Sentence, intentionally causing damage to property, mitigating and aggravating features,

Legislation cited:
Crimes Act 2013s.184 (2) (a)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE Nos S1269/13, S1268/13, S1087/13

BETWEEN

P O L I C E

Prosecution

A N D

SEUSEU APINERU male of Nono’a, Saleimoa, Tiapapata and Auala Savaii

A N D

ALAVINE FELIUAI male of Nono’a Saleimoa

Accused

Counsel

F Lagaaia and O Tagaloa for Prosecution

Accused in persons

Sentence: 24 December 2013

S E N T E N C E

The charges

1. The accused Seuseu Apineru and Alavine Feliuai are jointly charged with one count of intentionally causing damage to property, contrary s.184 (2) (a) if the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. The accused Alavini Feliua’i is further charged with one count of being armed with a dangerous weapon, namely stones, contrary to s25 of the Police Offences 1961, which carries a maximum penalty of one year imprisonment and one count of throwing stones at a thing, contrary to s.26 of the Police Offences Ordinance 1961, which also carries a maximum penalty of one year imprisonment. To the joint charge, both accused pleaded guilty at the earliest opportunity and to the two additional counts with which only the accused Alavine Feliua’i is being individually charged, he also pleaded guilty at the earliest opportunity.

The Offending

2. Around 7.00pm in the evening of 5 July 2013, the first complainant in this matter, Bob Afamasaga, sent his driver Malo, the second complainant, to return two employees to Saleapaga in a vehicle owned by him (Bob Afamasaga). On his way back from Saleapaga to Apia, Malo came through the cross-island road or the Tiavi route. When Malo arrived at Malololelei, the engine of the vehicle started rattling. So Malo stopped the vehicles and parked it on the side of the main road at Malololelei. It was then getting late at night and it was very dark at Malololelei.
3. Not long after Malo had parked his vehicle on the side of the road, a white pick-up vehicle came by and stopped next to Malo’s vehicle. Malo asked the driver of the white pick-up vehicle as to where he was going and the driver of the pick-up vehicle replied that he came to pick up a relative who lives nearby. The white pick up vehicle then continued to a nearby house. Soon afterwards, the white pick up vehicle returned to the main road and stopped next to Malo’s vehicle.
4. It was then that Malo saw two men, subsequently identified as the accused, approaching his vehicle and the white pick up. One of the men was holding a machete and the other was holding stones. At that time, the white pick up vehicle drove off at high speed leaving only Malo and his vehicle. Malo tried to explain to the accused that he did not come with the men in the white pick-up but that did not stop the accused from approaching Malo’s vehicle. Fearing for his own safety, Malo fled the scene and sought refuge in one of the families at Malololelei. The accused then damaged Malo’s vehicle using the machete and stones.
5. From what the accused told the Court and the probation service, they had been drinking a large bottle of Niu Vodka since around 5.00pm of that same evening. Around 11.00pm they were very drunk. They then heard people shouting and swearing from the main road in front of their house. The accused Seuseu Apineru then picked up a machete and the accused Alavine Feliua’i picked up stones and went to the main road. When they got to the main road, they saw someone running away from a vehicle that was parked on the side of the road. Thinking that he was the person responsible for the shouting and swearing that they had heard from their house, and being angry at not being able to catch him, they then damaged his car. The damage was quite extensive.
6. Evidently, Malo was not the person responsible for the shouting and swearing. It must have been the men in the white pick-up vehicle that fled when the accused came on to the scene. But the drunken accused must have thought that it was Malo whom they saw running away from the scene who was responsible for the shouting and the swearing. So they damaged his vehicle.

The accused

7. The accused Seuseu Apineru is 42 years of age. He is single and stays with his cousin and co-accused Alavine Feliua’i at Tiapapata. He earns income from the welding and fitting service he provides to his friends when requested. He also receives $200 every week from his friend in New Zealand whose property at Tiapapata he looks after. He is a first offender and seems to have been a person of good character prior to the commission of his offence. He has also pleaded guilty to the charge against him at the earliest opportunity.
8. The accused Alavine Feliua’i is 33 years old. He is currently married to his second wife who lives in New Zealand with their daughter. He depends on the remittances from his wife.
9. Alavine has previous convictions in New Zealand. On the 6 September 2010 he was convicted of assault on a female, presumably his first wife, and ordered to make reparation of $150 and ordered to perform 250 hours of community work and was placed under supervision. On 2 August 2011, he was convicted for breach of the conditions of supervision and ordered to pay Court costs. On the 9 October 2011, he was convicted for breach of community work and sentenced to one month imprisonment. On 29 October 2011, he was convicted twice for assaults on a female, presumably his first wife, and was sentenced to 6 months imprisonment on each conviction to be served concurrently. On 3 January 2012, he was convicted for contravention of a protection order and was sentenced to one month imprisonment. On 18 April 2012, he was deported from New Zealand to Samoa.
10. This accused, as earlier mentioned, has also pleaded guilty to all charges against him at the earliest convenience.
11. Both accused have also made substantial partial reparation to the first complainant Bob Afamasaga who is the owner of the vehicle that was damaged. A balance of $460 still remains to be paid for the costs of repairs to the vehicle.

The aggravating and mitigating features

12. The principal aggravating feature in relation to this offending is the extensive damage caused by the accused to the first complainant’s vehicle. The incident that happened was also quite scary for the second complainant Malo when he saw the accused approaching him and his vehicle at Malololelei, one with a machete and the other holding stones. There is no mitigating feature in relation to the offending.
13. In relation to the accused as offenders, there is no aggravating feature personal to the accused Seuseu Apineru but there are such features in relation to the accused Alavine Feliua’i. This is his previous convictions for offences involving the use of violence in 2010 and 2011 while he was in New Zealand.
14. As to mitigating features personal to each accused, the accused Seuseu Apineru is a first offender and had been a person of good character prior to the commission of this offender. Both accused have also made substantial reparation for the damage to the vehicle that they damaged. Seuseu Apineru has also pleaded guilty at the earliest opportunity to the one joint charge which incriminates him.
15. In relation to the accused Alavine Feliua’i, the mitigating features personal to him are the substantial reparation for the damage to the vehicle and his plea of guilty to the charges against him at the earliest opportunity.

Discussion

16. In respect of the accused Seuseu Apineru, I have decided, after weighing the aggravating and mitigating features not to impose a custodial sentence but to give him a second chance to redeem himself.
17. In respect of the accused Alavine Feliua’i, I have decided, after weighing the aggravating and mitigating features in relation to him to take a starting point of 7 months imprisonment. There will be an uplift of 2 months for his previous convictions. That increases the starting point to 9 months. There will be a deduction of 3 months for the substantial reparation for the damage to the vehicle and that reduces the starting point to 6 months. There will be a further deduction of 2 months for his early guilty plea. That leaves 4 months.

The Result

18. The accused Seuseu Apineru is sentenced to 12 months probation.
19. The accused Alavine Feliua’i is sentenced to 4 months imprisonment on the charge of intentionally causing damage to property. For the charge of being armed with a dangerous weapon, namely, a stone, he is sentenced to 2 months imprisonment. For the charge of throwing stones at a thing, he is sentenced to 2 months imprisonment. All these sentences are to be concurrent. That means, the accused Alavine Feliua’i will serve a total sentence of 4 months imprisonment. Any time he has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.
    

CHIEF JUSTICE