Police v Vaosa [2014] WSSC 67 (14 October 2014)

SUPREME COURT OF SAMOA

Police v Vaosa [2014] WSSC 67

Case name:	Police v Vaosa
Citation:	[2014] WSSC 67
Decision date:	14 October 2014
Parties:	P O L I C E Prosecution, A N D TAUFONO VAOSA male of Fasitoo-tai and Vailuutai, Accused
Hearing date(s):
File number(s):	S1450/14
Jurisdiction:	CRIMINAL
Place of delivery:	MULINUU
Judge(s):	CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation:	F Lagaaia for prosecution T Peniamina for accused
Catchwords:
Words and phrases:	Intentionally destroying property, maximum penalty, retaliate, reconciliation, aggravating and mitigating features, sentence
Legislation cited:	Crimes Act 2013, ss184(2)(a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1450/14

BETWEEN

P O L I C E
Prosecution

A N D

TAUFONO VAOSA male of Fasitoo-tai and Vailuutai.

Accused

Counsel:
F Lagaaia for prosecution
T Peniamina for accused

Sentence: 14 October 2014

S E N T E N C E

The charge

1. The accused Taufono Vaosa a matai of Vailuutai appears for sentence on one charge of intentionally destroying property, namely, crops, contrary to ss184(2)(a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. He initially pleaded not guilty to the charge but on the date of trial he vacated his not guilty plea and substituted it with a guilty plea.
2. A feature of this case which is not plain from the submissions of both counsel for the prosecution and the defence which should be noted in order to avoid any possible injustice to the accused in passing sentence on him is as follows. The accused had first been charged that on 21 February 2014 he intentionally destroyed crops belonging to the present victim’s father which were growing on land that is the subject of a land dispute between the accused and the victim. The accused pleaded guilty to that charge and on 9 July 2014 was given a suspended sentence of 12 months by Nelson J.
3. The charge on which the accused is now appearing for sentence alleges that on 31 March 2014 the accused intentionally destroyed property, namely, crops belonging to the victim which were growing on the same land as mentioned in the first charge. What the prosecution should have done was to bring these two charges together so that the Court would have dealt with them together in passing sentence. This is because of the close relationship between the victims of the two charges being father and son, the proximity in terms of time between the incidents alleged in the two charges, the fact that the two charges arose from the same land, and the substantial similarity between the two charges in other respects. This would also avoid any possible mistaken impression that the accused re-offended while the suspended sentence of 12 months imposed by Nelson J on 9 July 2014 was still in force. It also reduces the impact of the argument that the offending which was the subject of the first charge is a previous conviction for the purpose of passing sentence in relation to the present charge.
4. The fact of the matter is that since Nelson J had imposed a suspended sentence of 12 months on the accused on 9 July 2014 in relation to the offending which occurred on 21 February 2014, the victim and the accused, who are joint holders of the matai title Taufono of their family at Vailuutai, have reconciled and there has been no more reported incident between the two of them. In other words, the accused has not re-offended since the sentence of 9 July 2014.

The offending in relation to the present charge

5. The accused is a 40 year old male and the victim is a 42 year old male. Both are from the village of Vailuutai. They are joint holders of the matai title Taufono of their family at Vailuutai. Both are also unemployed and married with children. So they have a few things in common.
6. The accused and the victim occupy the same customary land at Vailuutai pertaining to the title Taufono. They have plantations next to each other. The disputes which arose between the accused and the victim concerning the land ended up in the Land and Titles Court. However, that did not end the friction between them.
7. On Monday afternoon 31 March 2014, the victim was attending a different case at the Land and Titles Court in Mulinuu while his wife and children stayed at home. During the absence of the victim, the accused walked over to the victim’s side of the land and cut down some of the victim’s crops using a bushknife while the victim’s wife was looking on. These were one hundred and forty (140) taro plants with an estimated total value of $700, seven (7) small banana plants with an estimated total value of $70, and eighteen (18) small taamu plants with an estimated total value of $90. The total estimated value of these crops is $860.
8. According to the pre-sentence report, the accused told the probation service that he was provoked because the victim had also destroyed some of his crops. So he decided to retaliate by destroying the crops of the victim and his son in February and March 2014. He also told the probation service that he has filed a complaint with the police regarding the damage done by the victim to his crops.

Reconciliation

9. The accused and the victim have forgiven one another in accordance with Samoan custom and Christian principles. This reconciliation was formally carried out on 11 September 2014 before senior sergeant Sione Menefata at the Faleolo Police post. The fact that the reconciliation was reduced to writing and signed by both parties and witnessed by senior sergeant Sione Menefata shows that the parties have taken their reconciliation seriously. They have also pleaded with the Court to have this matter withdrawn as they have reconciled, they are from the same family, and they are the joint holders of the title Taufono of their family. In a separate letter dated 13 September 2014, the victim pleads for this matter to be withdrawn as it has been settled in accordance with Samoan custom and the parties have reconciled. The accused has also told the probation service that he is willing to abandon his complaint to the police against the victim for destroying his crops.
10. There have been a number of criminal cases of lesser severity than homicide and serious sexual offences where reconciliation has been allowed by the police to take place within the criminal process. It is encouraging to see from this case the police being active again in allowing reconciliation, and perhaps mediation, to take place within the criminal process especially as the parties are related to one another, they hold the same matai title of their family, and they are next door neighbours occupying the same land pertaining to the matai title Taufono which they jointly hold.

Discussion

11. Having given careful consideration to this matter, I have decided in the interests of peace, harmony, and stability between the parties and their respective sides of the family not to disturb the reconciliation that has been effected by the accused and the victim themselves. It is also not correct that the present offending was committed by the accused after Nelson J had imposed a suspended sentence of 12 months on him on 9 July 2014. The present offending was committed on 31 March 2014.
12. In all the circumstances, I have decided that the proper thing to do is to impose another suspended sentence but this will be for 8½ months. This sentence is to be concurrent with the suspended sentence of 12 months imposed by Nelson J on 9 July 2014. In this way, the present suspended sentence of 8½ months will end at the same time as the suspended sentence of 12 months.

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CHIEF JUSTICE