Police v Liu [2014] WSSC 14 (3 March 2014)

SUPREME COURT OF SAMOA

Police v Liu [2014] WSSC 14

Case name: Police v Liu

Citation: [2014] WSSC 14

Decision date: 3 March 2014
Parties:
POLICE (prosecution) and MALOTUTOATASI LIU male of Nono’a, Saleimoa.

Hearing date(s):

File number(s): S3021/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
O Tagaloa and J Nelson for prosecution
Accused in person

Catchwords:
sentence, intentionally causing damage to property, throwing a stone,

Words and phrases:

Legislation cited:
Crimes Act 2013 s.184 (1) and (2)
Police Offences Ordinance 1961 s.26

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S3021/13

BETWEEN

P O L I C E

Prosecution

A N D

MALOTUTOATASI LIU male of Nono’a, Saleimoa.

Accused

Counsel: O Tagaloa and J Nelson for prosecution

Accused in person

Sentence: 3 March 2014

S E N T E N C E

1. The accused appears for sentence on one charge of intentionally causing damage to property, contrary to s.184 (1) and (2) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment and one charge of throwing a stone, contrary to s.26 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To both charges the accused pleaded guilty at the earliest opportunity.
2. On Thursday 5 September 2013 at around 5:00pm, the accused boarded a bus at Utualii to come to Apia. He paid his fare of $2 and sat down on a seat close to the front. As the bus drove off, the busdriver noticed that the accused was in an intoxicated state. The busdriver knows the accused and that he lives at Nono’a, Saleimoa. So when the bus arrived at Nono’a, Saleimoa, it stopped and the busdriver asked the accused more than once to leave the bus as his bus would not carry intoxicated passengers as it was contrary to law. The accused, however, would not leave the bus. The bus then continued on its way. When the bus shortly arrived at the Farmer Joe supermarket at Lotoso’a, Saleimoa, the busdriver stopped the bus again and asked the accused to leave the bus as he was intoxicated and his bus would not carry intoxicated passengers as it was contrary to law. After several requests from the busdriver to leave the bus and the accused would not leave, two male passengers who were sitting at the back of the bus walked over and pulled (toso) the accused out of the bus. The bus then continued on its way to Apia. In the meantime, the accused did not go home but waited in front of the Farmer Joe supermarket at Lotoso’a for the return of the bus. His intention was to throw a stone at the bus. When he saw the bus returning, he picked up a stone and threw it at the front windscreen of the bus which was shattered into pieces. The value of the windscreen was about $1,150.
3. When this matter was first called for sentence on 13 January 2014, the accused said that when the bus stopped at the Farmer Joe supermarket at Lotoso’a, the busdriver assaulted him by punching him on the face. The busdriver and other men who were inside the bus then dragged him and threw him out of the bus. He felt hurt and humiliated and became very angry. That was why he threw a stone at the bus when it returned. This is different from what is stated in the prosecution’s summary of facts. As a result, I ordered the prosecution and the accused if he wishes to do so, to call evidence on this factual conflict.
4. On Thursday 27 February 2014, at the disputed facts hearing I heard evidence from the busdriver who was called by the prosecution. He testified that he never punched or assaulted the accused. He simply asked the accused several times to leave the bus as he was intoxicated and it was contrary to law for him to carry intoxicated passengers on his bus but the accused would not leave. Two young men who were sitting at the back of the bus then came over and pulled (toso) the accused out of the bus. When questioned by the accused, the busdriver did not change his evidence and continued to deny that he ever punched or assaulted the accused. After the evidence by the busdriver, the accused was given the opportunity to give evidence. He did not want to go to the witness stand to give evidence. He simply said from the dock that the busdriver punched him and ejected him from the bus and that was why he was angry and threw a stone at the front windscreen of the bus. As the accused did not want to go to the witness stand to give evidence but remained in the dock, he could not be cross – examined by counsel for the prosecution. After the evidence of the busdriver and the statement by the accused from the dock, I decided to accept the busdriver’s evidence.
5. The accused is now 55 years of age since the end of January this year. He is single and works on his family’s plantation and performs domestic chores. The accused is a first offender. The oral testimonial from one of his relatives shows the accused to have been a person of normal character. There is also a testimonial from the assistant pastor of a church at Moamoa where the accused has been staying since these offences were committed. But this assistant pastor has only known the accused for a few months after the commission of these offences.
6. The aggravating features of this offending are the repeated refusal by the accused who was intoxicated to leave the bus when asked to do so by the busdriver, the accused waiting for the return of the bus with the intention of throwing a stone at the bus, the actual throwing of a stone at the bus which shattered its front windscreen, and the value of the windscreen. There is no mitigating feature of the offending. In terms of the mitigating features personal to the accused, there is nothing impressive about his previous character. However, I take note of the fact that at age 55 years these will be his first convictions. The accused’s guilty plea at the earliest opportunity is also a mitigating feature personal to him.
7. I have to say that since this offence of intentionally causing damage to property came within the jurisdiction of this Court since the enactment of the Crimes Act 2013, I have noticed the high rate of this type of offending. Often what is damaged are the windscreens of motor vehicles which are quite expensive items of property. This calls for deterrence in the circumstances of this case. But deterrence is not an aggravating feature in relation to the offending. However, deterrence is relevant to sentencing and it has been taken into consideration by this Court in a number of cases for determining the appropriate starting point for sentence.
8. Having regard to the aggravating features of the offending and the need for deterrence, I will take a starting point of 7 months for sentencing. I will deduct 2 months for previous good character due to the fact that at the age of 55 years this will be the accused’s first convictions. That leaves 5 months. I will further deduct 2 months for the accused’s guilty plea. That leaves 3 months.
9. For the offence of intentionally causing damage to property, the accused is sentenced to 3 months imprisonment. For the offence of throwing a stone, the accused is also sentenced to 3 months imprisonment. Both sentences to be concurrent. This means the accused will serve a total sentence of 3 months imprisonment. Any time the accused has already spent in custody is to be further deducted from that sentence.
   

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution