Police v Puni [2014] WSSC 57 (16 October 2014)

SUPREME COURT OF SAMOA

Police v Puni [2014] WSSC 57

Case name: Police v Puni

Citation: [2014] WSSC 57

Decision date: 16 October 2014

Parties: P O L I C E Prosecution, A N D LEMAMEA EMOSI PUNI male of Pu’apu’a and Tiapapata, Accused

Hearing date(s): 19 & 20 August 2014

File number(s): S2197/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia for prosecution
P A Fepulea’i for accused

Catchwords:

Words and phrases:
Theft of animals, aggravating and mitigating features, sentence

Legislation cited:
Crimes Act 2013ss.161 and 163

Cases cited:
Police v Ainini Auapaau (2014) (unreported decision)
Police v Hinemoa Toia (2014) (unreported decision)
Police v Savili Kili et al (2014) (unreported decision)
Police v Toefiliga Pitolua Fauega Sua (2013) (unreported decision)

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2197/14

BETWEEN

P O L I C E
Prosecution

A N D

LEMAMEA EMOSI PUNI male of Pu’apu’a and Tiapapata.
Accused

Counsel
F Lagaaia for prosecution
P A Fepulea’i for accused

Sentence: 16 October 2014

S E N T E N C E

The charge

1. The accused Lemamea Emosi Puni appears for sentence on the charge of theft of animals, namely, cattle, contrary to ss.161 and 163 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. He pleaded not guilty to the charge but was found guilty at trial.

The offending

2. The complainant Siaosi Apelu had three cattle which he kept on his family’s land which is inland of the village of Puapua in Savaii. These were a bull with an estimated value of $1,200, a cow with an estimated value of $1,200, and a calf with an estimated value of $600.
3. Except for Sundays, the complainant or his son Faatauvaa would go to their land to change the grazing place for their cattle. On Monday 17 February 2014 when the complainant went to change the grazing place for his cattle, he could not find them. He looked for his cattle on that day and again on 18 and 19 February but still could not find them. So on Saturday 22 February 2014 he sought the assistance of the police at Tuasivi in finding his missing cattle.
4. The police then searched for the complainant’s cattle. They discovered that the complainant’s bull and cow had been shot and killed by the accused on his cattle farm which is a long way further inland from the complainant’s land at Puapua. The bull and the cow were then sold by the accused to a butchery. The complainant’s calf was found dead at the foothills of a mountain not far from the accused’s farm.

The accused

5. The accused is 67 years old. He is married. He holds more than one matai title. He had been a prominent doctor but has ceased practising as a doctor since he was convicted and sentenced to 12 months imprisonment in 2012 for a different kind of offence.
6. Counsel for the accused in his submissions told the Court that the accused has paid $2,000 to the complainant plus a cattle beast. However, the complainant told the Court that what happened was that his family had a funeral and the accused provided $2,000 for that funeral. If this is true, and I accept what the complainant told the Court, it appears to me that the $2,000 was a subtle way by the accused to provide atonement for his actions without openly acknowledging to the complainant and his family that it was reparation for the complainant’s cattle he had taken. The accused also promised the complainant that he would provide a cattle. A young cow was subsequently provided by the accused for the complainant. Even though the complainant still appears painful about what had happened to his animals, he told the Court that he has accepted the young cow from the accused.
7. The accused has also apologised to the family of the complainant in the presence of the complainant and his mother and this matter has been reconciled.
8. The accused has also been penalised by the Alii and Faipule of the village of Puapua and he presented 50 boxes of hearings, 2 large cattle beasts, and one large fine mat for his penalty.
9. On the other hand, the accused is not a first offender. He has a previous conviction for a different kind of offence from his present offence.

Previous decisions on cattle theft

10. The offence of theft of animals was previously dealt in the District Court pursuant to the provisions of ss.85 and 86 of the Crimes Ordinance 1961. Since the enactment of the Crimes Act 2013 which has repealed the Crimes Ordinance 1961, this offence has been brought under the jurisdiction of this Court with a maximum penalty of 7 years imprisonment.
11. Both counsel for the prosecution and the defence refer in their written submissions to the recent decisions of this Court on theft of animals and the sentences that were passed in those decisions. In Police v Toefiliga Pitolua Fauega Sua (2013) (unreported decision of Nelson J delivered on 11 November 2013) the accused was charged with the theft of two cows and one hog valued at $2,600. The Court found that the accused did not make any effort to reconcile and make reparation with the complainant. The accused was convicted and sentenced to 6 months imprisonment. In Police v Savili Kili et al (2014) (unreported decision of Nelson J delivered on 13 January 2014), the accused were charged with theft of animals, namely, killing and stealing two bulls. The Court took into consideration the request by the complainant for leniency and the fine imposed by the village council on the accused. Each of the accused was then convicted and fined $200 and ordered to pay costs of $50. All of the accused were also ordered to pay a further sum of $250 as reparation to the complainant. They were further ordered to pay those sums of money within 14 days, in default 6 months imprisonment. In the case of Police v Hinemoa Toia (2014) (unreported decision of Nelson J delivered on 24 February 2014), the accused was charged with the theft of two cows which he killed and sold to a supermarket in the Apia area. After taking into consideration the aggravating and mitigating factors, the accused was convicted and given a suspended sentence of 12 months on the condition that he does not re-offend within that period. In Police v Ainini Auapaau (2014) (unreported decision of Nelson J delivered on 28 April 2014), the accused was charged with the theft of one cow valued at $1,500. In passing sentence, the Court took into account the reconciliation between the accused and the complainant as well as the fact that the accused had replaced the complainant’s cow with another cow. The accused was then given a suspended sentence of 2 years on the condition that he does not re-offend within that period.

The aggravating and mitigating features

12. In relation to this offending, the aggravating features are: (a) the level of pre-mediation that must have been involved in removing the complainant’s cattle from his land to the accused’s cattle farm which is a long way away, (b) the number of cattle that were stolen and killed and then sold to a butchery, (c) the estimated values of the bull, cow and calf that were stolen, and (c) the emotional distress suffered by the complainant as a consequence of the accused’s actions. There is no mitigating feature in relation to the offending.
13. In relation to the accused as offender, I have decided for present purposes not to take into account as an aggravating feature personal to him his previous conviction which was for a sexual offence which is a different kind of offence. On the other hand, there are mitigating features personal to the accused as offender. These are: (a) his apology to the complainant and his family, (b) the reparation of $2,000 and a young cow which he has made though under the guise of a presentation to a funeral of the complainant’s family, and (c) the penalty imposed by the village council which the accused has paid. I have also not overlooked the fact that the accused is 67 years of age and suffers from certain ailments as shown from his pre-sentence report.

Discussion

14. I must point out that killing another person’s cattle with the intent to steal its carcass is a serious offence. The maximum penalty of 7 years imprisonment provided by the legislature for this offence is a reflection of the seriousness with which the community views this offence. Simply because non-custodial sentences have been imposed in the recent past by this Court for this type of offence is not to be taken by those people who are mindful of killing and stealing other people’s animals as a guarantee that they can kill and steal other people’s animals without going to prison. Such an attitude would be a mistake.
15. Whilst previous sentences in comparable cases are a relevant consideration for sentencing purposes, it is a cardinal principle of criminal sentencing that the sentence in each case depends primarily on the facts of that case.
16. For this case, I have given careful consideration to the aggravating as well as the mitigating features in determining what should be the appropriate sentence. In doing so, one of the lessons that comes out clearly from this case is that in the end crime does not pay. The accused has obviously suffered more in terms of money, stress, and time wasted as a result of his unlawful actions than he had hoped to gain from killing and selling the complainant’s cattle.

The result

17. The accused is convicted and fined $600. He is also ordered to pay a further $400 reparation to the complainant for the value of his bull and cow. These sums of money are to be paid within 7 days, in default 6 months imprisonment.
    

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CHIEF JUSTICE