Police v Tausili [2015] WSSC 70 (14 July 2015)

SUPREME COURT OF SAMOA
Police v Tausili, Wilson and Lototau [2015] WSSC 70

Case name:	Police v Tausili, Wilson and Lototau
Citation:	[2015] WSSC 70
Decision date:	14 July 2015
Parties:	POLICE (prosecution) v ATONIO TAUSILI male of Palisi, HETA CHARLENE WILSON female of Matautu-uta, and LUISA LOTOTAU female of Falelauniu.(accused)
Hearing date(s):
File number(s):	S1835/14-S1837/14
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused Atonio is convicted of the charge against him and sentenced to 5 months imprisonment. - The accused Heta is discharged without conviction and ordered to pay $250 costs to the prosecution. - The accused Luisa is also discharged without conviction and ordered to pay $150 costs to the prosecution.
Representation:	R Titi and L Tavita for prosecution S Leung Wai for accused Atonio Tausili T Peniamina for accused Heta Wilson F E Niumata for accused Luisa Lototau
Catchwords:	official corruption - accessory after the fact – maximum penalty - conspiracy to defeat the cause of justice – guilty pleas – aggravating features relating to the offending – mitigating features relating to the accused as offenders – breach of trust – public image of the police – previous good characters – remorse – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.137 (1) s.37 s.39 Criminal Procedure Act 1972 s.104 (1) (b) Narcotics Act 1967s.18
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1835/14-S1837/14

BETWEEN

P O L I C E
Prosecution

A N D:

ATONIO TAUSILI male of Palisi, HETA CHARLENE WILSON female of Matautu-uta, and LUISA LOTOTAU female of Falelauniu.
Accused

Counsel:
R Titi and L Tavita for prosecution
S Leung Wai for accused Atonio Tausili
T Peniamina for accused Heta Wilson
F E Niumata for accused Luisa Lototau

Sentence: 14 July 2015

S E N T E N C E

The accused

1. All three accused in this matter are police officers. The accused Atonio Tausili (Atonio) appears for sentence on one charge of official corruption, contrary to s.137 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. The accused Heta Wilson (Heta) appears for sentence on the charge of accessory after the fact, contrary to s.37 of the Act, which carries a maximum penalty of 7 years imprisonment by virtue of s.39 of the Act and s.18 of the Narcotics Act 1967. The accused Luisa Lototau (Luisa) appears for sentence on the charge of conspiracy to defeat the cause of justice, contrary to s.141 of the Act, which carries a maximum penalty of 3 years imprisonment. All three accused had initially pleaded not guilty but subsequently vacated their not guilty pleas on the morning of the trial after some of the charges against them had been withdrawn and pleaded guilty to the remaining charges.

The offending

2. The prosecution’s summary of facts, as amended and admitted by the accused, shows that on 26 December 2013 at around 11:00am in the morning while the accused were on duty at the Faleata police post, they received a call from a female of Vaitele named Maria that a neighboring woman named Christina was causing a commotion at her house. The accused Atonio, Heta and another police officer then attended the call. The accused Luisa was not involved. The accused Atonio was in command of the police team that attended the call being the most senior officer with the rank of senior sergeant. The accused Heta is a constable.
3. When the police arrived at Maria’s house, Christina who had been causing the commotion in that house had gone back to her own house. The reason for this commotion was that Christina suspected that her husband Jeffrey was hiding at Maria’s house.
4. The accused Atonio then instructed Heta and the other police officer to go and bring Christina from her house so that they could sort out the problem which caused the commotion. When Heta and the other police officer arrived at Christina’s house, Christina gave them two marijuana joints and told them they belonged to her husband Jeffrey. Just at that time, Jeffrey arrived and Christina told him that she has given his marijuana joints to the police. Jeffrey then went straightaway and brought a 3lb corned beef.
5. In the meantime, the accused Heta had taken the two marijuana joints and showed them to senior sergeant Atonio. Not long afterwards, Atonio saw a 3lb corned beef inside the police vehicle which must have been put there by Jeffrey. Atonio then explained to Jeffrey the consequences of being found in possession of marijuana. Atonio then turned to the accused Heta and the other police officer and said to them “vaai na mea e aua nei o’o ile Ofisa” (watch those things so that they don’t reach the Office). However, the marijuana joints did reach the office because the accused Heta put the marijuana joints in the pocket of her skirt and took them back to the office with her.
6. When Atonio, Heta, and the other police officer arrived back at the Faleata police post, Heta went straight to the rest rooms. She came across the accused Luisa who was having a casual conversation with another police officer. Heta took out the marijuana joints and showed them to Luisa and the police officer Luisa was conversing with. She said to them that she had been instructed to throw them away. Luisa then reached out and took the marijuana joints from Heta. At that time, a call came from the front desk and Heta and the police officer who had been conversing with Luisa immediately left the rest room while Luisa went straight to the toilet and flashed down the marijuana joints destroying what were potential exhibits for a narcotic prosecution.
7. The whole event concerning the marijuana joints from where they were obtained to the time they were destroyed was never reported to the officer in charge of the police shift at the Faleta police post at the time or to the officer who was overall in charge of the Faleata police post.

The accused Atonio

8. The accused Atonio is 39 years. He is married and has four children from his marriage. He holds the rank of senior sergeant in the police service but is currently under suspension with pay because of this offending.
9. It appears from the pre-sentence report on Atonio that he joined the police in 2001. In 2010 he had reached the rank of senior sergeant which shows that he has had a rapid rise in the Samoan police force.
10. Atonio is a first offender. The testimonial given by his wife to the probation service shows that he is a loving and caring husband who provides for his family financially. He also attends church regularly. He is a committed member of his church and participates in the activities of his church.
11. The testimonial from the priest of Atonio’s church also shows that Atonio attends church regularly and participates in the activities of the church. He is a member of his church choir and is a Sunday school teacher. He is also a dependable and trusted member of his church.
12. The testimonials from the pulenuu of the village of Malie where Atonio is staying with his wife at his wife’s family, shows that the Atonio serves the village of Malie well through its aumaga (the untitled men of the village) and is a person with a pleasant personality).

The accused Heta

13. The accused Heta is also a first offender. She is 30 years. She was married but now lives as a solo mother with her 7 year old son. Her pre-sentence report shows that she had a good level of education having graduated from the Institute of Technology of the National University of Samoa with a certificate in tourism and technology. In 2005 she joined the police service as a constable which rank she has held up to now. She is currently under suspension because of this offending and she is now staying at home caring for her elderly mother and 7 year old son.
14. The testimony given by Heta’s sister to the probation service shows that Heta is a person with a pleasant personality and is a helpful and hardworking member of her family. The testimonial from police superintendent Tuaena Lomano Paulo who was Heta’s supervisor at the Faleolo police post from 2011 to 2013 shows that Heta is a dedicated and trustworthy police officer with a good personality. The testimonial from the minister of Heta’s church shows that she is an active, committed, and trustworthy member of her church.

The accused Luisa

15. The accused Luisa is 26 year old. She finished school at Year 13 and then left for New Zealand for more than a year. In 2010 she joined the Samoa police service as a constable which rank she still holds up to now. She is currently under suspension with pay due to this offending.
16. Luisa is also a first offender. The testimonial given by her mother to the probation service is that Luisa is a responsible and hardworking person in their family. The testimonial from the senior pastor of Luisa’s church shows that Luisa is an active member of her church particularly in youth matters and she uses her talent to change the lives of many of the youth of her church.

The aggravating features relating to the offending

The accused

17. The following are the aggravating features relating to the offending by the accused Atonio:

(a) Breach of trust

18. The breach by Atonio, as a senior police officer and the leader of the police team that attended the call from Maria, of the trust placed in him as a law enforcement officer is an aggravating feature relating to his offending.
19. When Atonio saw the 3lb corned beef inside the police vehicle after the accused Heta had shown him the two marijuana joints said to belong to Christina’s husband, he must have known as an experienced police officer where the 3lb corned beef came from and what it was for because he explained to Jeffrey, the husband of Christina, the consequences of being in possession of marijuana. After doing so, Atonio then turned to Heta and the other police officer and said “vaai mea na e aua nei o’o ile Ofisa” (watch those things that they don’t reach the Office). Given the surrounding circumstances, that was a clear intimation that the marijuana joints were to be discarded and not to reach the Faleata police post because of the 3lb corned beef already inside the police vehicle.

(b) Setting a bad example for junior police officers

20. In the circumstances of what happened, the instruction by Atonio to Heta and the other police officer to discard the marijuana joints which were potential exhibits for a narcotic prosecution was setting a bad example for junior police officers and that is also an aggravating feature relating to Atonio’s offending.

(c) Involving other police officers in the offending

21. Because of the action by Atonio as the senior police officer, the junior officers Heta and Luisa became involved in this offending. I am of the clear view that if Atonio had not given the instruction to the effect that the marijuana joints were to be discarded, Heta and Luisa would not have been in Court today. This is another aggravating feature relating to Atonio’s offending.

(d) Public image of the police

22. I accept the submission by Ms Titi for the prosecution that the instruction by Atonio to Heta and the other police officer to discard the marijuana while Jeffrey was present tends to lower the image of the police in the eyes of the public and is therefore an aggravating feature relating to Atonio’s offending.

The accused Heta

(a) Breach of trust

23. The fact that Heta held on to the marijuana joints and brought them back with her to the Faleata police post and then showed them to Luisa and another police officer saying that she had been instructed to throw them away is a breach of trust and is an aggravating feature relating to Heta’s offending. In the circumstances, Heta knew why she was instructed by Atonio to throw away the marijuana because she was a member of the police team that attended the call from Maria about a commotion at her place. However, her culpability must be at the very low end of the scale. As a junior police officer holding the rank of constable, she must have been much influenced by the fact that the instruction to her came from a much more senior officer who was the leader of their police team that attended the call from Maria.

The accused Luisa

24. Luisa is the most junior police officer of the three accused. Her involvement came at the very end of this offending. It is clear from the prosecution’s summary of facts that she was not a member of the police team that included Atonio, Heta, and another police officer. There is also nothing in the summary of facts to show that Luisa knew of the circumstances by which Heta came to be in possession of the marijuana joints. All that Luisa knew about the marijuana joints, as it appears from the summary of facts, is what Heta said to her that she had been instructed to discard the marijuana.
25. As earlier mentioned, when the police team arrived back at the Faleata police post, Luisa was having a casual conversation with another police officer. Heta then showed her the marijuana joints and said she had been instructed to discard them. When Heta had to leave again because of another call, Luisa took the marijuana joints and flushed them down the toilet. On these facts, I do not see any aggravating feature in Luisa’s offending if, indeed, she had committed any offence of conspiracy to defeat justice. In one way, her conduct may be interpreted as obeying an instruction from a superior officer without enquiring about the reason for the instruction.

The mitigating features relating to the accused as offender

26. The following are the mitigating features relating to all three accused as offenders:

(a) Previous good character

27. The respective testimonials relating to the three accused show that they had been persons of good character prior to the commission of these offences. This is a mitigating feature relating to each of them as offender.

(b) Remorse

28. I accept the submissions by all three defence counsel that the accused are remorseful. This is another mitigating feature relating to the accused as offenders.

(c) Guilty pleas

29. The guilty pleas by all three accused is another mitigating feature relating to each of them as offender. However, it should be noted that the accused had initially pleaded not guilty to the charges against them. The not guilty pleas were only vacated on the morning of the trial. But this was after some of the charges against the accused were withdrawn. Whether the accused would have pleaded guilty at the earliest opportunity if those charges had been withdrawn earlier is not clear.

Discussion

30. It should be clear from what has been said that the accused Atonio has the greatest level of culpability. As a senior and experienced police officer holding the rank of senior sergeant, a high degree of trust was placed in him as a law enforcement officer. Unfortunately, he has broken the law. Because of him, the other accused Heta and Luisa who are junior officers holding the rank of constable became involved in this matter. He must bear ultimate responsibility for what happened even though only a small quantity of marijuana substances was involved.
31. I have to say that the impact of any custodial sentence imposed on the accused Atonio on his children is not a mitigating factor relating to him as offender as the submissions of counsel for Atonio seem to suggest. It is a common fact that a custodial sentence imposed on a father would inevitably impact on his young children. But that on its own cannot be regarded as a mitigating feature.
32. Furthermore, I do not accept that a custodial sentence may endanger the life of the accused Atonio because he has been a police investigating officer and a custodial sentence would place him together with other prisoners. It is a known fact that two or three officers had been sentenced to prison in the recent past. But nothing to my knowledge has been reported to have endangered their lives in prison because of other prisoners. Those officers have been released from prison safe and well.
33. In respect of Atonio, I will take 10 months as the starting point for sentence having regard to the aggravating features relating to his offending. I will deduct 3 months for previous good character. That leaves 7 months. I will deduct 2 months for his guilty plea. That leaves 5 months.
34. In respect of the accused Heta, her involvement in this matter was at the low end of the scale. She apparently took heed of the instruction given to her by the accused Atonio. However, the prosecution’s summary of facts shows that she did not discard the marijuana joints. She brought the marijuana joints with her in the pocket of her skirt to the Faleata police post contrary to the instruction that the marijuana were not to reach the Office. Due to a turn of events, she handed the joints to the accused Luisa who disposed of the substances. I have given direful consideration to the circumstances of Heta’s offending and the consequences of a conviction which would inevitably end her career as a police officer. In this regard, I have considered the gravity of Heta’s offending, the consequences of a conviction on her and her career as a police officer, and whether the entering of a conviction would be a hardship out of proportion to the particular circumstances of her offence. In the result, I have decided to apply s.104 (1) (b) of the Criminal Procedure Act 1972 and discharge her without conviction but to pay costs.
35. In respect of the accused Luisa, she had the lowest level of involvement in this matter even though it was her who disposed of the marijuana joints. According to the prosecution’s summary of facts, Heta showed the marijuana to Luisa and another police officer and said to them she had been instructed to discard them. Heta then had to leave because of another call and Luisa disposed of the marijuana. There is nothing in the summary of facts to show that Luisa knew about how Heta had got the marijuana or the reason for the instruction to discard the marijuana.
36. In the circumstances, I have come to the conclusion that having regard to the special circumstances of Luisa, the entering of a conviction will inevitably end for career as a young police officer would be a hardship out of proportion to the particular circumstances of her offence. She therefore discharged without conviction under s.104 (1) (b) of the Criminal Procedure Act 1972 but to pay costs.

The result

37. The accused Atonio is convicted of the charge against him and sentenced to 5 months imprisonment.
38. The accused Heta is discharged without conviction and ordered to pay $250 costs to the prosecution.
39. The accused Luisa is also discharged without conviction and ordered to pay $150 costs to the prosecution.
    

CHIEF JUSTICE