Police v Pa'u [2014] WSSC 53 (29 September 2014)

SUPREME COURT OF SAMOA

Police v Pa’u [2014] WSSC 53

Case name: Police v Esera Pa’u

Citation: [2014] WSSC 53

Decision date: 29 September 2014

Parties: P O L I C E Prosecution A N D ESERA PA’U male of Taumeasina and Salelologa. Accused

Hearing date(s):

File number(s): S632/14, S633/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo and B Faafiti-Lo Tam for prosecution
Accused in person

Catchwords:

Words and phrases:
Cause damage to property, Threatening words, Aggravating and Mitigating factors, sentence

Legislation cited:
Crimes Act 2013(s.184(2)(a) and (b))
Police Offences Ordinance 1961( s.4(g))

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S632/14, S633/14

BETWEEN

P O L I C E
Prosecution

A N D

ESERA PA’U male of Taumeasina and Salelologa.
Accused

Counsel:
L Su’a-Mailo and B Faafiti-Lo Tam for prosecution
Accused in person

Sentence: 29 September 2014

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of internationally causing damage to property, contrary to s.184(2)(a) and (b) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one charge of using threatening words, contrary to s.4(g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment or a fine of $40. The accused pleaded not guilty to both charges but was found guilty at trial.

The offending

2. The accused is 40 years old and the complainant is 46 years old. They are first cousins and originated from the village of Lalomanu, Aleipata. The houses of their respective sides of their family are close by to one another.
3. The accused is married and lives with his wife and children at Moataa. The complainant is also married and resides with her family in Australia. The accused and the complainant happened to be both at their family at Lalomanu on 31 December 2013. The complainant and her husband had not long before built a new house of her side of the family. On 31 December 2013, the complainant’s husband had already returned to Australia but the complainant stayed behind. The complainant then adopted a 17 year old boy and a 19 year old girl as her children. The accused said that the complainant was having an affair with this boy. The accused told the probation service that he was concerned for his family’s reputation within the village and any village punishment that might follow because of the complainant’s conduct.
4. On the evening of 31 December 2013, the accused and the other men of his family were drinking alcohol in the vicinity of the complainant’s house while the complainant and her 17 year old adopted son were inside the complainant’s house. As the complainant and her adopted son were leaving the house to get into the complainant’s car for the complainant to go to a dance that was held at the Sigalu bar in Lalomanu, the accused walked over and called to the complainant’s adopted son “Ke koe oo mai loa ii ile fale ou fasiokia ma oe” (If you come again to his house I will kill you). The complainant and her adopted son got into the car and drove away.
5. At the Sigalu bar, the complainant’s adopted daughter met up with the complainant and the complainant’s adopted son. They then got into the complainant’s car to return to the complainant’s house for the adopted daughter to change her dress. The complainant got into the driver’s seat, the adopted daughter into the front passenger’s seat, and the adopted son was lying down on the back seat. When they arrived back at the complainant’s house, the accused and the other men of his family were still drinking nearby.
6. When the car stopped in front of the complainant’s house, the accused walked over and tried to open one of the back doors of the car. The door did not open because it was locked. So the accused tried hard and vigorously to open the door. As a result, the door was damaged. At the same time, one of the men who was drinking with the accused came over, opened the driver’s door, and pulled out the complainant. The complainant estimated the costs of repairing the damaged door of her car to be around $1,900.

The accused

7. The accused is a taxidriver by occupation. He earns $120 a week. He is the sole breadwinner of his family. He lives with his wife and five children in his wife’s family at Moataa. The testimonials from the accused’s wife, an elderly father of his family, the pulenuu of Moataa, a pastor of Moataa, and the manager of the taxi stand where the accused works all show the accused to be a person of good character prior to the commission of these offences. He is also a first offender.
8. The accused, according to the pre-sentence report, has apologised to the complainant and his apology was accepted.
   

Aggravating and mitigating features

9. The aggravating features of this offending are the over-vigorous actions of the accused in trying to open the back door of the complainant’s car where the complainant’s adopted son was lying on the back seat, the damage to that door, and the accused’s threatening behavior. The accused was clearly under the influence of alcohol. The only mitigating feature in relation to the offending is that there was an element of provocation from the complainant’s conduct.
10. In relation to the accused as offender, the mitigating features are the fact that the accused is a first offender and had been a person of good character prior to the commission of these offences. He has also apologised to the complainant and his apology was accepted.

Discussion

11. Having considered both the aggravating and mitigating features, I have decided to impose a monetary fine in this case.
12. For the charge of intentionally causing damage to property, the accused is convicted and fined $350 and for the charge of using threatening words the accused is convicted and fined $40. The total fine to be paid by the accused is $390.

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CHIEF JUSTICE