Police v Salamo [2015] WSSC 60 (16 June 2015)

SUPREME COURT OF SAMOA
Police v Salamo, Salamo and Sefo [2015] WSSC 60

Case name:	Police v Salamo, Salamo and Sefo
Citation:	[2015] WSSC 60
Decision date:	16 June 2015
Parties:	POLICE (prosecution) v SALAMO PAIAUA SALAMO, MOLI PAIAUA SALAMO and ASOFA SEFO all males of Matavai, Safune (accused)
Hearing date(s):
File number(s):	S1271/15-S1272/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Each of the accused is convicted of the offences with which they are jointly charged and sentenced to 7 months supervision.
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	joint charge of causing intentional damage to property – cruelty to animals – maximum penalty - fine not exceeding two penalty units – aggravating and mitigating features – provocation – previous good character – persistent failure of the complainant to act – penalty imposed by village council – early guilty pleas – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013- s.184 (3), Police Offences Ordinance 1961 - s.6 (a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1271/15-S1272/15

BETWEEN

P O L I C E
Prosecution

A N D

SALAMO PAIAUA SALAMO, MOLI PAIAUA SALAMO and ASOFA SEFO all males of Matavai, Safune
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 16 June 2015

S E N T E N C E

The charges

1. The accused Salamo Salamo, Moli Salamo, and Asafo Sefo all of Matavai, Safune, appear for sentence on one joint charge of causing intentional damage to property, contrary to s.184 (3) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and one joint charge of cruelty to animals, contrary to s.6 (a) of the Police Offences Ordinance 1961, which carries a maximum penalty of 12 months imprisonment or a fine not exceeding two penalty units. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As it appears from the pre-sentence reports of the accused and what the accused told the Court, the complainant lives at their village of Matavai, Safune, but holds a matai title in the village of Faletagaloa, Safune.
3. The complainant owns a number of cattle. He does not keep his cattle in a secure fence. As a result, his cattle roam around and cause much damage to the plantations and crops of other villagers of Matavai. This includes the plantations and crops of the families of the three accused. The complainant’s cattle even come to the village proper and roam around the village grounds. The accused told the Court that this situation has been going on for ten years. It has caused great annoyance to the people of the village.
4. The accused have approached the complainant on numerous occasions to do something about his cattle as they were damaging and destroying their plantations and crops but nothing has been done by the complainant. The accused and other people of their village whose plantations have been damaged or destroyed by the complainant’s cattle have also requested the help of their village council. The village council has instructed the complainant on several occasions to put his cattle in a secure fence but again nothing has been done by the complainant. His cattle still roam around causing damage to the plantations and crops of the accused’s families and other people of the village. So the accused Asofa Sefo approached the police for help. Other people of the village also approached the police for help. Despite police interventions, the complainant has still done nothing to put his cattle in a secure fence. His cattle still roam around causing damage or destruction to the plantations and crops of the people of the village including the accused. And this has been going on for ten years, as the accused told the Court. The accused could no longer tolerate the complainant and his cattle. Their patience had been stretched well beyond breaking point.
5. On the night of 4 or 5 March 2015, while the accused were at their plantations which adjoin one another, they noticed the complainant’s cattle coming again onto their plantations and damaged their crops. They then went after the cattle with machetes. According to the prosecution’s summary of facts, six of the complainant’s cattle were inflicted cuts on the backs and tails. One cow had its tail completely cut off. The accused told the probation service, as shown from their pre-sentence reports, that one of the cattle was so severely injured that it died on the spot. The accused then reported to the complainant what they had done to his cattle and the matter was reported by the complainant to the police.

The accused

6. The accused Salamo Salamo is 19 years of age, the accused Moli Salamo is 22 years of age, and the accused Asofa Sefo is 30 years of age. All of them are first offenders and the testimonials from their parents, the pastor of their church, the pastor of the Seventh Day Adventist Church in their village, the pulenuu of their village, and the women representative of the government in their village all show that the accused are persons of good character .
7. The testimonial from the pastor of the accused’s church also mentions that the village has been greatly affected by the complainant’s cattle which roam around the village and damage or destroy the plantations of the village. The village has been patient for a long time but the complainant has done nothing to secure his animals. The complainant’s cattle have become a grave nuisance to the village.
8. The accused, however, were penalised by the village council for these offences and each of them has paid a penalty of twenty boxes of canned fish to the village as confirmed by the pulenuu of the village in his testimonial.

The complainant

9. I do not accept that the complainant is the true victim in this matter. He has brought this matter upon himself by his inaction and persistent failure to do something for many years to secure his cattle in spite of numerous complaints to him from the accused and other people of the village about his cattle. The real victims are the poor cattle which have been injured or killed and the people of the village whose plantations and crops have been damaged or destroyed by the complainant’s cattle for many years.

The aggravating features relating to the offending

(a) Injuries to the cattle

10. The severe injuries inflicted on the complainant’s cattle resulting in one cow being killed is an aggravating feature relating to the offending.

(b) Number of cows affected

11. The fact that six cows were affected is another aggravating feature relating to the offending.

(c) Use of machetes

12. The use of machetes to inflict the injuries to the animals is another aggravating feature relating to the offending.

The mitigating features relating to the offending

(a) Provocation

13. The provocation to the accused because of the complainant’s cattle causing damage and destruction to their plantations and crops for a very long time is a mitigating feature relating to the offending. This provocation must have been increased by the persistent failure of the complainant to do something to secure his cattle despite numerous complaints from the accused.

(b) Persistent failure of the complainant to act

14. The persistent failure of the complainant to do something to secure his cattle despite repeated complaints from the accused and requests from the village council and the police approached by the accused is another mitigating feature relating to the offending.

The mitigating features relating to the accused as offenders

(a) Previous good character

15. All three accused are first offenders and their character testimonials show that they had been persons of good character prior to the commission of these offences is a mitigating feature relating to the accused as offenders.

(b) Penalty imposed by village council

16. The penalties imposed on the accused by their village council and which have been paid is another mitigating feature relating to the accused as offenders.

(c) Early guilty pleas

17. The early guilty pleas by all three accused is also a mitigating feature relating to the accused as offenders.

Discussion

18. Having considered the aggravating and mitigating features of this case, I have decided that custodial sentences would be inappropriate, particularly given the nature and extent of the provocation.

Result

19. Each of the accused is convicted of the offences with which they are jointly charged and sentenced to 7 months supervision.
    

Chief Justice Sapolu