Police v Lavea [2017] WSSC 152 (22 December 2017)

SUPREME COURT OF SAMOA
Police v Lavea [2017] WSSC 152

Case name:	Police v Lavea
Citation:	[2017] WSSC 152
Decision date:	22 December 2017
Parties:	POLICE (Prosecution) AND HAWAII LAVEA male of Moataa (Defendant)
Hearing date(s):	-
File number(s):	S3645/15, S3600/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of forgery of the pepa saofai convicted and sentenced to 18 months or 1½ years in prison. On the second charge of using a forged document convicted and sentenced to 12 months in prison, concurrent term. You will accordingly serve 18 months in prison for these offences. Any remand in custody time to be deducted from that period.
Representation:	L Sio for prosecution L R Schuster for defendant
Catchwords:	defended hearing - found guilty - forging saofai certificate - forgery - Samoan custom and tradition - using this false saofai certificate - proper bestowment - committed the crimes of forgery and using a forged document - serious offences - valued cultural institution - ‘faamatai’ system of governance - offending strikes at the very heart of this structure and constitutes an assault on the core and integrity of the precepts governing our way of life - overwhelming, consistent and persuasive – criminality - the innocent debris of your offending - previous conviction -
Words and phrases:
Legislation cited:
Cases cited:	Police v Lavea [2017] WSSC 146 Police v Seuala Pitone 16 May 2013
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

HAWAII LAVEA male of Moataa.
Defendant

Counsel:
L Sio for prosecution
L R Schuster for defendant

Sentence: 22 December 2017

S E N T E N C E

1. After a defended hearing the defendant was found guilty of forging saofai certificate number 292 dated 16 January 2012 which asserts that on Saturday, 24 December 2011 at Moataa, he was validly conferred in accordance with Samoan custom and tradition the tulafale title ‘Toafaiga’ in the family of Asi Leulua’iali’i Feagaiga Iva. He was further found guilty of using this false saofai certificate at Mulinuu on 10 February 2014 to effect registration of his Toafaiga title with the Registrar of the Land and Titles Court. Both offences carry maximum penalties of imprisonment. The reasons for the Courts decision can be found in its judgment dated 24 November 2017 reported under Police v Lavea [2017] WSSC 146.
2. The facts are fully traversed in that judgment and I do not propose to repeat them. The salient circumstances are that the defendant himself filled out saofai certificate 292 and that saofai certificate purported to certify the proper bestowment of the title ‘Toafaiga’ upon him at the saofai ceremony held at Moataa on Christmas Eve 2011.
3. The defendant is from the village of Moataa but holds titles in other villages as well. He knew he was not conferred the Toafaiga title on Christmas Eve 2011. And that many of the particulars of the saofai certificate were false. Furthermore he bullied the village pulenuu into signing the certificate on 16 January 2012 as borne out by the evidence. Some two years later on 10 February 2014 following the death of the sa’o of his family, he used the certificate to procure registration of “his” title. In doing so he has committed the crimes of forgery and using a forged document.
4. These are serious offences, they strike at the heart of our social fabric and system. What makes Samoa unique in the world is our “faa-Samoa” a combination of concepts and principles evolved over a thousand years of existence. Residing at the core of our “tu and aganuu” is the institution of the ‘matai’ or family chief. He or she makes all the significant decisions in the family and in the village as part of the saofaiga of Alii and Faipule or Village Council. Matais also make all the important decisions in a District or Itumalo and ultimately in the Parliament which passes the laws we collectively and individually live by as a nation. Together with the concept of family or aiga there is no more valued cultural institution than the ‘faamatai’ system of governance.
5. The defendants offending strikes at the very heart of this structure and constitutes an assault on the core and integrity of the precepts governing our way of life. Because until a matai title is registered pursuant to the law, it cannot be used. The registration process begins with a valid pepa saofai, the document that the defendant in this case forged.
6. Masalo a tuu i le tatou gagana o le fatu ma aano o tatou tu ma aga faa-Samoa, e silafia foi e lau tofā Fofogamua, ua tatou malamalama uma iai, o le tofi matai. O le matai e faia faaiuga i totonu o lona aiga ma i totonu o le saofaiga a matai o alii ma faipule o nuu ma alalafaga. O matai foi e faia tonu i mataupu poo fonotaga a le Itumalo, tainane le Palemene lea e faia tulafono a le atunuu. I lo’u taofi e leai se tofi e sili atu i le tofi matai. O i e faavae ai pulega lelei o afioaga faatasi ma le atunuu atoa. O lou faia la o se pepa matai sese, e olegia ai lou nuu, lou aiga, lou itumalo, le tulafono ma tagata lautele o le atunuu. E le mafai ona tu’u māmā lea tulaga e le Faamasionga. O se solitulafoo matuiā ma ogaoga. I lo’u manatu o se solitulafono e talafeagai iai le faasalaga ua faataatia mai e le Palemene o le tatou atunuu, le saofaiga autu lea o matai e pulea le atunuu. O le faasalaga ua faataatia mai e le Palemene e tusa ai ma le tulafono, o le faasalaga faa-falepuipui.
7. As explained to the defendant the gravity of the offending cannot be understated. To falsify the bestowment of a matai title by forging a pepa saofai must be met by a strong deterrent penalty. There must be no misunderstanding about the message the court is sending to all title holders and would be title holders in the country. You do this and falsify a saofai certificate this is likely your fate. Considering the social and cultural consequences a forged saofai certificate can have, not only for the present but for future generations as well.
8. In reaching this conclusion I have not overlooked the District Court decision in Police v Seuala Pitone 16 May 2013 cited by defendants counsel in support of an application for a non-custodial penalty for his client. The Registrar has been unable to locate the relevant District Court file in the shambles that is the District Court records office. This is not the first time I have encountered this problem. But the database indicates that was a case of forging a signature on a letter confirming registration of a matai title. That is completely different offending to the matter before the court.
9. It is also to be noted that a penalty of imprisonment is consistent with penalties imposed in respect of other cases of forgery. Many of which are cited by the prosecution in their sentencing memorandum. It is further noted some of those cases were decided under the old criminal legislation when the maximum penalty was only 5 years in prison. In 2013 Parliament increased the maximum penalty for forgery by doubling it to 10 years in prison and increased the penalty for using a forged document to 7 years in prison.
10. I deal firstly with the primary offence of forging the saofai certificate. Apart from the cultural implications referred to, the offending is also aggravated by the high level of planning and pre-meditation it would have involved. The defendant persuaded the pulenuu to part with the saofai book which the pulenuu foolishly agreed to. This allowed the defendant free reign to insert whatever particulars he wished which he did in relation to saofai certificate 292. There is no doubt the defendant gave considerable thought to his strategy to obtain a title in this manner without the approval of his family or the village. He then waited until the sa’o of the aiga passed in 2013 before lodging the false certificate in February 2014 with the Lands and Tittles Court for registration. The degree of criminal culpability in the offending is high. This was grossly dishonest behaviour involving misleading everyone. Misleading his family, misleading his village, misleading the Lands and Titles Court. Because the Registrar proceeded on the basis of this false certificate to advertise the bestowment.
11. The prosecution have also advanced breach of trust and nature of the offending as further aggravating factors. I have dealt with the nature of the offending already. Breach of trust has no application to the present matter. The impact the offending has had on the defendants village is also significant as demonstrated by the victim impact report filed by the Alii and Faipule of Moataa. It deals with the unsavoury history of the defendant in the village, how he has disrupted its peace and harmony and set bad examples to younger matais and non-matais. It also confirms the permanent banishment of the defendant and his family. I am not sure why the family has been punished for the defendants wrong doing. Because his family have done no wrong in this matter. But it is clear the village want no further relationship with the defendant.
12. The court must also take into account the previous offending of the defendant. Although committed some time ago it was for an offence of dishonesty for which the defendant was sent to prison. The purpose of sentencing the defendant in accordance with the Sentencing Act 2016 includes holding him accountable for the new dishonesty and the effect it has had on his immediate and the wider community. It is also to denounce the defendants conduct and to send a strong and clear message to the defendant and to the public at large about this sort of behaviour.
13. As stated the maximum penalty now for forgery is 10 years in prison. Even though only one document is involved the nature of that document being a pepa saofai in my view justifies a start point of half of the maximum penalty namely 5 years in prison. However the prosecution are only seeking a start point of 3 years in prison. I will therefore exercise some leniency in your favour and accept that as the start point for sentencing, 3 years in prison.
14. It would not be fair for you to upgrade that start point for a 23 year old previous conviction for which you have already served an imprisonment term. Or to upgrade it for your poor record as per the victim impact report filed by the Alii and Faipule of your village. For those things you have already been dealt with and punished by the village. But this does mean the defendant receives no deduction for previous good character or for a first offender status.
15. The defendant chose to defend these charges. There was no basis for his denials as noted in the courts decision. The prosecution evidence was “overwhelming, consistent and persuasive.”
16. There is very little in your favour in mitigation Fofogamua. Your ability as an orator is undoubted. I have heard you speak many times. You possess a gift not given to many people. Your prowess in sporting events in particular boxing is also commendable. But none of these are mitigating factors for the purposes of sentencing.
17. Your counsel has also tried to argue that the offending amounts to you trying to obtain a matai title without the usual “saogamea”. Unfortunately that argument is unconvincing. The offending arises because you went further than that. You deliberately falsified an official document and led people to believe that in fact you were on the relevant date bestowed this orator title. That is where the criminality of the matter lies.
18. I do however accept you have a good record of service to your family and your church. The references attached to the pre-sentence report allude to this. Some account must be taken of that. For those matters I will deduct 6 months from the start point of sentence, leaves a balance of 2½ years.
19. I also accept that you are now probably permanently banned from your village. That is a significant punishment. The law requires that to be taken account of I will deduct 1 year from your balance, leaves 1½ years.
20. I acknowledge financial and other hardship will result to your wife and your dependents as a result of your imprisonment. I see your father is in court. But those are consequences that you by your criminal conduct have brought upon your own family. No one is to blame for that except you. Your family have become what I commonly refer to as “the innocent debris of your offending.” No other deduction can or ought to be made from your sentence Fofogamua.
21. On the charge of forgery of the pepa saofai convicted and sentenced to 18 months or 1½ years in prison.
22. On the second charge of using a forged document convicted and sentenced to 12 months in prison, concurrent term.
23. You will accordingly serve 18 months in prison for these offences. Any remand in custody time to be deducted from that period.
    

...............................
JUSTICE NELSON