Police v Tanielu [2015] WSSC 12 (27 February 2015)

IN THE SUPREME COURT OF SAMOA
Police v Tanielu [2015] WSSC 12

Case name:	Police v Tanielu
Citation:	[2015] WSSC 12
Decision date:	27 February 2015
Parties:	POLICE v SUSI TANIELU
Hearing date(s):
File number(s):	S4161/14 – S4165/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 8 months imprisonment. - Time he accused has already spent in custody is deducted from that sentence. - All sentences to be concurrent
Representation:	L Su’a-Mailo and B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	Intentional damage - armed with a dangerous weapon-insulting and threatening words- maximum penalty – guilty at earliest opportunity – mitigating and aggravating features – home invasion - offending while on bail – provocation – starting point for sentence - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013
	Police Offences Ordinance 1961
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S4161/14 – S4165/14

BETWEEN

P O L I C E
Prosecution

A N D

SUSI TANIELU male of Lotofaga.
Accused

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

Accused in person

Sentence: 27 February 2015

S E N T E N C E

The charges

1. The accused Susi Tanielu of Lotofaga appears for sentence on two charges of intentional damage, contrary to s.184 (2) (a) of the Crimes Act 2013, each of which carries a maximum penalty of 7 years imprisonment; one charge of being armed with a dangerous weapon, namely, a stone, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment; one charge of throwing stones to the danger of persons, contrary to s.26 of the Ordinance, which carries a maximum penalty of one year imprisonment, one charge of using threatening words, contrary to s.4 (g) of the Ordinance, which carries a maximum penalty of 3 months imprisonment; and one charge of using insulting words, contrary to s.4 (g) of the Ordinance, which carries a maximum penalty of 3 months imprisonment. To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts, the complainant is the brother of the accused’s mother. The accused resides with his other next door to the complainant on family customary land at Lotofaga, Aleipata. On 21 November 2014 in the afternoon, the accused walked over to the complainant’s house while only the complainant’s daughters and nephews were at home having a meal and laughing with each other. The accused yelled out “kefe”. One of the complainant’s nephews called out whether he had any brains because there were girls in the house. The accused replied to the complainant’s nephew “Koikiki ou alu aku kipi lou ulu ile sapelu” and walked away.
3. A short time later, the accused returned to the complainant’s house, went inside one of the bedrooms, and slammed the door shut. One of the complainant’s daughters tried to open the door to see what the accused was doing inside the bedroom but the door was jammed. Suddenly, the door opened when the accused kicked it leaving a hole in the door. The estimated value of the damage to the door is $50. The accused then went out of the complainant’s house, picked up a stone, and threw it at the house which caused a window to break.
4. After this matter was called for mention on 15 December 2014, and was further adjourned on bail to 19 January 2015 for the accused to apply for legal aid, the accused on 8 January 2015 picked up a stone and threw it at the complainant’s house causing four louvers of the complainant’s house to break. The estimated value of each louver is $4. The accused also called out to the complainant’s daughters and nephews “Kefe, o i se mea aua nei koe kefe mai sesi iigei”. The complainant’s daughters and nephews were afraid and went to a nearby house and called the police. The accused was apprehended by the police the same day.

The accused

5. According to the pre-sentence report, the accused is 39 years of age. He is single and lives with his mother and two young children on their family’s land at Lotofaga, Aleipata, next door to the complainant’s house. The complainant told the probation service that the accused and his mother only moved in to stay permanently with their family at Lotofaga in 2010 and their relationship has been tumultuous mostly because of the accused stirring trouble within the family.
6. The pre-sentence report also states that there have been other related incidents concerning the accused and the complainant before the Family Violence Court and were referred to the probation service to facilitate a family group conference for reconciliation. However, at that family group conference, the accused rudely walked out saying “Ou ke le kalagoa i lea maile ma lea puaa”. (I would not talk to this dog and this pig). This was in spite of the fact that the complainant is the accused’s uncle, the matai of the family, and is seven years older than the accused. This was also in spite of the fact that the probation service was present. The accused’s behaviour shows lack of respect, remorse, and willingness to change his attitude towards the complainant. I share the concern expressed by the probation service that there is a potential risk that something worse could arise from the accused’s relationship with the complainant if nothing is done soon to defuse the present situation.
7. When this matter was recalled on 19 January 2015 after the accused was given the opportunity on 15 December 2014 to apply for legal aid, the accused also failed to appear. A warrant was then issued for his arrest.
8. The pre-sentence report also shows that the accused had a difficult upbringing relying mainly on his mother’s work as a housemaid. He left school at Year 11 and worked as an assistant at a pancake stall at the Savalalo flea market. However, most of his time was spent working on his plantation. He seems to be a low income earner. When asked by the Court as to why he committed these offences, he said it was because the complainant has ceased providing food for him and his mother.
9. In 2010, the accused was convicted of burglary and ordered to come up for sentence within 18 months.

The complainant

10. The complainant is 46 years of age. As earlier mentioned, he is the accused’s maternal uncle and the matai of their family at Lotofaga.

The aggravating features of the offending

(a) Home invasion

11. On the first occasion of this offending, the accused entered the complainant’s house and went inside one of the bedrooms and slammed the door shut. He then kicked the door open creating a hole in the door and went out of the house. After that, he picked a stone and threw it at the complainant’s house breaking a window. On the second occasion, the accused picked up a stone and threw it at the complainant’s house breaking four louvers.

(b) Insulting and threatening words

12. On the first occasion, the accused uttered swear and threatening words at the complainant’s daughters and nephews while at their house. These were very bad and provocative swear and threatening words. On the second occasion, the accused again uttered swear words at the complainant’s daughters and nephews while at the house.

(c) Offending while on bail

13. The second incident occurred while the accused was on bail to apply for legal aid. It shows lack of remorse for what he did in the first incident.

(d) Provocation

14. Both incidents in these matter show that the accused lacks any respect for the complainant who is his maternal uncle and the matai of his family at Lotofaga. The accused’s conduct was highly provocative in the context of Samoa custom.

The mitigating features relating to the offender

15. The only mitigating feature relating to the accused as offender is his guilty plea. However, from the material placed before the Court, I am satisfied that the guilty plea is not a genuine sign of remorse.

Discussion

16. In determining a starting 9ont for sentence, I take into account the totality principle and the aggravating features relating to the offending. I also take into account the need for deterrence given what is related in the pre-sentence report about the history behind this offending and the outcome of the attempt at reconciliation by the probation service. I will set the starting point for sentence at 10 months.
17. I will deduct 2 months for the guilty plea. That leaves 8 months.

The result

18. (a) On each of the two charges of intentional damage, the accused is sentenced to 8 months imprisonment.
    • (b) On the charge of being armed with a dangerous weapon, namely, a stone, the accused is sentenced to 4 months imprisonment.
    • (c) On the charge of throwing stones to the danger of persons the accused is sentenced to 4 months imprisonment.
    • (d) On the charge of using threatening words, the accused is sentenced to 2 months imprisonment.
    • (e) On the charge of using insulting words the accused is sentenced to 2 months imprisonment.
19. All sentences to be concurrent. The accused will therefore serve a total sentence of 8 months imprisonment. The time the accused has already spent in custody to be deducted from that sentence.
    

Honourable Chief Justice Sapolu