Police v Salesa [2015] WSSC 64 (13 July 2015)

SUPREME COURT OF SAMOA
Police v Salesa [2015] WSSC 64

Case name:	Police v Salesa
Citation:	[2015] WSSC 64
Decision date:	13 July 2015
Parties:	POLICE (prosecution) v POE SALESA male of Utualii (accused)
Hearing date(s):
File number(s):	S1460/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused is convicted of the charges against him and sentenced to 10 months probation.
Representation:	O Tagaloa for prosecution
	Accused in person
Catchwords:	intentionally destroying or damaging property, namely, cattle –maximum penalty – guilty on both charges – cattle trespass – injuries to the cattle – provocation – persistent inability of the complainant to act – aggravating and mitigating features – previous good character – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.184 (2)
Cases cited:	Police v Salamo [2015] WSSC 160
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1460/14

BETWEEN

P O L I C E
Prosecution

A N D

POE SALESA male of Utualii.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 13 July 2015

S E N T E N C E

The charges

1. The accused stood trial on two charges of intentionally destroying or damaging property, namely, cattle, contrary to s.184 (2) of the Crimes Act 2013. Each charge carries a maximum penalty of 7 years imprisonment. At the trial, the accused did not deny the charges against him but said that he simply wanted to explain why he damaged or destroyed the complainant’s cattle. He was accordingly found guilty of both charges.

The offending

2. The complainant in this matter is the Congregational Christian Church in Samoa (the church) which has a cattle farm at Malua. The evidence adduced by the prosecution at the trial suggests that at the material time there were about 69 or 70 cattle in the church farm.
3. On a day in April 2014, the workers at the cattle farm of the church found two dead young bulls and two dead pregnant cows which belonged to the church inside the cattle farm. They also found another dead young bull which belonged to the church outside the fence of the cattle farm on land which belongs to a family of the adjoining village of Utualii. These cattle appeared to have died from stab wounds and severe cuts inflicted with a knife. The tails of some of the animals were badly cut. When the cattle farm workers of the church went to burn the dead animals, they met the accused who admitted that it was him who inflicted the injuries to the animals.
4. When the accused was later interrogated by constable Misiluni Uesile, he readily admitted to inflicting the injuries on the animals. He told the police officer that since 2013 he had been requesting the workers at the church cattle farm and the manager of the farm about the church’s straying cattle that were damaging his vegetable farm. In January, February, March, and April 2014 when the farm workers started work in the morning, the accused would be chasing the church cattle into the farm. When he talked to one of the farm workers about the cattle, he was told to go and beat up the worker who was looking after the cattle farm. But the accused would not do that. Then on 2 April 2014 at about 6:00am in the morning, he again saw the church cattle on his land. So he picked up his bushknife and ran at the cattle and struck the first animal he came to cutting its tail. The other animals had run away. Then in the early hours of Saturday morning 5 April 2014 at about 3:00am, he knew from the barking of his dogs that the church cattle were again coming onto his land. He then picked up his bushknife and ran at the cattle and struck out with his bushknife. The accused told constable Misiluni Uesile that about 3 or 4 animals were injured. He also told the police officer that the gate of the church cattle farm where the cattle might have come out is opposite his farm.
5. In his evidence to the Court, the accused said that the cause of this incident is that for all of 2013 he had been telling the church and its cattle farm workers about their cattle straying onto his farm at night time and damaged and destroyed his vegetable farm by walking on his vegetables and eating his tomatoes, cabbages, and pumpkins. The church had paid him $800 compensation but nothing appeared to have been done about the fence of the farm as the animals continued to come out at night and destroyed his vegetables. As a result, he had shifted his vegetable farm to near his house and he had put a fence around his land to protect his vegetables from the straying cattle. However, the church cattle continued to come out at night and damaged and destroyed his vegetables. The evidence of the prosecution witness Mulagolago Malele Anesi about chasing church cattle away from his family’s plantation at Utualii shows that the plantations of other villagers of Utualii are also affected because of the church’s straying cattle.
6. The accused also testified that he has already approached his village about this matter but he was advised by his village to approach the church cattle farm manager.

The accused

7. The accused is a 43 year old male of Utualii. He has a wife and five children. He is a first offender and the testimonials from his wife, the paramount matai of his family, the EFKS pastor of his village, and the pulenuu of his village show that he had been a person of good character prior to the commission of these offences.
8. The testimonial from the paramount matai of the accused’s family also shows that the accused works as a planter in partnership with the Ministry of Agriculture and he often wins prizes at agricultural competitions held by that Ministry.
9. The pre-sentence report also shows that the accused has apologised to the principal of Malua Theological College but the reply from the principal was that the matter was already with the police.

The complainant

10. As earlier mentioned, the complainant in this matter is the Congregational Christian Church in Samoa. The value of each animal that was destroyed as obtained by the police from the church is $2,000. The total value of the five dead animals would therefore be $10,000.

Cattle trespass

11. This case is similar to Police v Salamo [2015] WSSC 160 which involved the injuring and killing by plantation owners of straying cattle that had been damaging their plantations for a very long period of time. In terms of the civil law, both cases appear to lie in the tort of cattle trespass. No doubt there are many instances around Samoa where plantations and crops are damaged by straying cattle. However, there seems to be a general lack of awareness of the tort of cattle trespass. As a consequence, people whose plantations are damaged or destroyed by straying cattle resort to harming the animals, often as a last resort, when they do not know that the civil law provides them with a remedy in damages or an injunction or both. The tort of cattle trespass is explained in The Law of Torts in New Zealand (2009) 5th ed by Todd et al where the learned authors state at p. 453, para 9.4.01:
    • “Cattle trespass is an ancient common law action which imposes strict liability where cattle or other livestock stray on to a person’s land and cause damage. Cattle trespass is distinguished from the tort of trespass to land by the fact that it is not necessary to show that the intrusion by the animals on to the plaintiff’s land resulted directly from a conscious positive act on the part of the defendant; it is sufficient that the animal strayed on to the plaintiff’s land of its own volition”.
12. As also pointed out in The Law of Torts in New Zealand (supra) at pp. 453 – 454, para 9.4.01, the action for cattle trespass has been abolished in the United Kingdom and some of the Australian states but still remains as part of the common law of New Zealand which has been modified by s.26 (1) Impounding Act 1955 (NZ0. The text The Law of Torts in New Zealand (supra) at pp. 453 – 460 provides a full account of how the common law action in the tort of cattle trespass applies in New Zealand.

The aggravating features relating to the offending

(a) Injuries to the cattle

13. The severe injuries inflicted on the five cattle with a bushknife resulting in all of them being killed is an aggravating feature relating to the offending.

(b) Number of cattle affected

14. The fact that three young bulls and two pregnant cows were severely injured and killed is another aggravating feature relating to the offending.

(c) Use of a bushknife

15. The use of a bushknife to inflict the injuries to the cattle is another aggravating feature relating to the offending.

The mitigating features relating to the offending

(a) Provocation

16. The provocation to the accused because of the complainant’s cattle causing damage to his vegetable plantation for about sixteen months starting in 2013 until April 2014 is a mitigating feature relating to the offending. This provocation must have been increased by the frustration resulting from the persistent inability of the complainant to do something to secure its cattle within its farm despite numerous complaints from the accused.

(b) Persistent inability of the complainant to act

17. The persistent inability of the complainant to do something to secure its cattle within its farm despite repeated complaints by the accused to its farm workers and the church is another mitigating feature relating to the offending.

The mitigating features relating to the accused as offender

(a) Previous good character

18. The fact that the accused is a first offender and the testimonials presented on his behalf show that he had been a person of good character prior to the commission of these offences is a mitigating feature relating to the accused as offender.

(b) Cooperation with the police

19. The accused’s ready admission to the police of his involvement in these offences and his full admission of his offending to the Court are a mitigating feature relating to the accused as offender. The accused said that the reason why he had pleaded not guilty to the charges was because he wanted to explain to the Court why he had committed these offences.

Discussion

20. After due consideration of the aggravating and mitigating features, I have decided that a custodial sentence would not be appropriate.

The result

21. The accused is convicted of the charges against him and sentenced to 10 months probation.
22. A copy of this decision is to be given to the probation service so that the tort of cattle trespass of which the accused could have resorted to for a remedy is further explained to the accused.

Chief Justice Sapolu