Attorney General v Taatiti [2014] WSSC 185 (24 October 2014)

IN THE SUPREME COURT OF SAMOA
Attorney General v Taatiti [2014] WSSC 185

Case name:	Attorney General v Taatiti
Citation:	[2014] WSSC 185
Decision date:	24 October 2014
Parties:	ATTORNEY GENERAL(Applicant) v FINEASO TAATITI male Aleisa. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	R Titi and O Tagaloa for prosecution Defendant unrepresented
Catchwords:	negligent driving causing death - tainted property – instrument - involved in the commission of two criminal offences
Words and phrases:
Legislation cited:	Proceeds of Crimes Act 2007
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

ATTORNEY GENERAL
Applicant

AND:

FINEASO TAATITI male Aleisa.

Defendant

Counsel: R Titi and O Tagaloa for prosecution
Defendant unrepresented

Ruling: 24 October 2014

ORAL RULING OF NELSON J

1. Defendant is the registered owner of a Toyota Hilux pick-up registration number 7411. The pick-up has been involved in the commission of two criminal offences.
2. The first occurred on the 19^th of November 2013 when the pick-up driven by the defendant was carrying passengers on the tray. The passengers were seated on a bench on the tray. The bench was higher than the walls of the tray. And there were more than one person seated on the bench. Such a bench does not normally come as part of the tray of the vehicle. The inference being that it was inserted by the defendant who is the owner of the pick-up.
3. As the defendant sped around a corner, one of the passengers seated on the bench fell off. This person struck her head on the road causing fatal injuries. Injuries from which she subsequently died. As a result the defendant pleaded guilty to a charge of negligent driving causing death. A charge for which he was convicted and sentenced in the District Court to community service.
4. The second offence the vehicle has been involved in occurred on the 9^th of January 2014. At about mid-night on that day the police stopped the defendants vehicle on suspicion that he was driving drunk. A search of the vehicle revealed alcohol and marijuana on the front seat. As a result of that matter the defendant pleaded guilty to a charge of possession of marijuana and was convicted and ordered to come up for sentence by this court on the 2^nd of May 2014. It is relevant that at the date of the second offence the defendant had not yet been sentenced on the first matter. The first matter was still pending when he committed the second offence.
5. As a result of the vehicles involvement in these two offences the Attorney General on behalf of the State has applied for a forfeiture order pursuant to part 3 of the Proceeds of Crimes Act 2007. Section 14(1)(a) of that Act allows the Attorney to do this following a persons conviction for a serious offence. And in respect of “tainted property” as defined under the legislation. Pursuant to section 14(3) an application can also be brought against the same defendant in respect of multiple offences.
6. There is no question the two offences the defendant has been dealt with by the court are serious offences. Section 19(1) of the Act provides that where the court is satisfied the property in question is tainted property in respect of which a serious offence has been committed and a person has been duly convicted, the court may order the property to be forfeited to the State. “Tainted property” is defined under section 2 as not only proceeds of a crime but also an “instrument.” An “instrument” is defined under the said section 2 in relation to property as being property used in connection with the commission of a serious offence. There is no question the Toyota hilux pick-up owned by the defendant was an instrument used in the commission of a serious offence, on not only one but two occasions.
7. I am satisfied all the requirements of section 19(1) of the Act have been complied with and the vehicle is “tainted property” within the statutory definition.
8. The unrepresented defendant has argued to the court that it should not exercise its discretion to grant the Attorney Generals application. He argues the vehicle is relied upon by his family and is not being used for the delivery of marijuana.
9. I understand the defendants argument quite clearly and they are relevant as per section 19(4) of the legislation. However the defendants arguments are outweighed by the fact that the vehicle has been used in the commission of not only one but two serious crimes. One of which resulted in the loss of a persons life. As such the law says the vehicle is liable to be forfeited to the State. There is no reason to exercise discretion against the granting of the application.
10. The application is accordingly granted and the vehicle is forfeited. Section 19(3) also requires that I assign a value to the vehicle for the purposes of this application. For the purposes of section 19(3) of the legislation and in accordance with a valuation dated 3 September from ASCO Motors I find the value of the vehicle as is to be $1,500. I will record that value as part of the courts finding and I will also direct that a written copy of this ruling be made available to the unrepresented defendant.
11. Ia masalo o lena ua e fa’afofoga i le fa’aliliuga o le fa’aiuga o le tatou mataupu, ua talia le talosaga a le Malo. O lau ta’avale o lea ua tu’u atu i le Ofisa o le Loia Sili tusa ai ma le talosaga. O le vaega lona lua o le talosaga e tatau ona fa’amaonia e le fa’amasinoga le tau o le ta’avale i le taimi lenei. O lea ua fa’amaonia foi e le fa’amasinoga o le tau lea e iai i le taimi lenei e $1,500 le tau o le ta’avale lea. Ua fa’atonu foi ma poloai le Resitara e tu’u atu se kopi o le fa’aiuga lenei mo lau susuga ina ia e malamalama ma e silafia atili ia mafuaaga o le fa’aiuga. A’o le fa’aiuga lena o le tatou mataupu.
12. Ou te le’o ma iloa po’o le a le fuafuaga a le ofisa o le Loia Sili i mataupu fa’apenei, pe tu’u atu se avanoa e te alu atu ai e totogi le tau o le ta’avale e toe maua ai lau taavale. O le vaega lena ia o le va o oe ma le ofisa o le loia sili. Ae mo le asō ma le talosaga lea na tu’u mai, o le fa’aiuga lena ua talia le talosaga ona o le ta’avale sa a’afia i solitulafono, e le na’o le tasi le solitulafono ae lua, na ua e silafia lelei. Lea ua talia le talosaga e fa’amotu le ta’avale i le Ofisa o le Loia Sili a’o le fetu’unaiga mulimuli ane o le mea lena a outou. Ua e malamalama i le fa’aiuga o le mataupu? (Defendant said yes). Ia fa’afetai ua maea.
    

JUSTICE NELSON