IN THE SUPREME COURT OF SAMOA
Police v Meleisea [2017] WSSC 40

Case name: 	Police v Meleisea	
		
Citation: 	[2017] WSSC 40	
		
Decision date: 	 11 April  2017	
		
Parties: 	POLICE (Prosecution)
NELSON MELEISEA male of Aleisa. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S1040/16, S1039/16, S1095/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	-	In respect of the two counts of unlawful practice as a medical practitioner you are convicted on both charges, you will pay Prosecution costs of $100, Probation Office costs of $100, that is a total of $200 again payable forthwith in default 2 months in prison.  

-	In respect of those two charges the court is also ordering a Reparation Report from the Probation Office pursuant to section 25 of the Sentencing Act 2016 in respect of the twenty eight (28) victims of this offending.  Your counsel will explain to you Nelson what that means, but essentially it means you will also be required to make reparation to the victims of your crime and the amount is going to be recommended to the court by the Probation Office and then we will settle the question of reparation. 

-	But they will need time to prepare those reports. This matter is further adjourned to 12:30 noon on the 01st of May for the Probation Office to produce that report Nelson. You and your counsel will have to see the Probation Office to work out the details of this report that the court is requesting. But until the 01st of May your bail will continue.  O lea e te saini i le Ofisa o Leoleo? (Defendant said he signed every Friday at the Police Station). Ia leai o le a sui lau saini, e te sainii i le Ofisa Faanofo Vaavaaia i le Aso Faraile ae se’i taumafai e tapena mai le lipoti mo le aso 01 o Me.  Ua e malamalama i le faaiuga o lau mataupu Nelson? (Defendant indicated he understood).  	
		
Representation: 	O Tagaloa for prosecution
A Su’a for defendant	
		
Catchwords: 	-	
		
Words and phrases:	Theft - unlawful practice as a Medical Practitioner - surgical procedures – circumcisions – reparation report – pleaded guilty - convicted	
		
Legislation cited:	Sentencing Act 2016	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:

POLICE
Prosecution

AND:
	NELSON MELEISEA male of Aleisa.
Defendant
Counsel:	
O Tagaloa for prosecution
A Su’a for defendant

Sentence:	11 April 2017

SENTENCE
1.	Mr Meleisea appears for sentence on one count of theft and two counts of unlawful practice as a Medical Practitioner.  To these charges the defendant has pleaded guilty.  The police summary of facts which has been agreed upon states he is a 25 year old male of Aleisa in a defacto relationship with children.  He was at the time of this offending a student at the Faculty of Medicine at the National University of Samoa but is now terminated. The complainant in this case is the Ministry of Health.  
2.	Summary states that while the defendant was a student at the Faculty of Medicine he was attached to the main hospital at Motootua for an 8 month period to observe and to assist doctors at the hospital with surgical procedures.  During this period between 31 November 2015 and 01 January 2016 without the knowledge and authority of the Hospital he stole a number of surgical items from the A& E Department. These items comprise inter alia medication, needles, syringes and bandages to the value of $1,237.70.
3.	On the 9th of December at Vaitele-uta he used these items to conduct circumcisions on two male relatives.  Subsequently he entered an arrangement with a female relative at Lepā, Aleipata to set up a circumcision clinic at her house at Lepā.  Villagers became aware of this clinic and the fact that the defendant would be performing circumcisions for $80.00 per patient.   It is not clear whether the villagers were aware the defendant was not a licensed medical practitioner.  
4.	On the 17th of December 2015 at Lepā he conducted circumcisions on twenty eight (28) young males.  He undertook this by himself without any health care assistant and received approximately $1,600.00 in payment.  Families who could not afford the full monetary payment gave the defendant taro or a pig in lieu thereof.  Unfortunately for the children involved some of them became infected and at least one patient required medical treatment at the hospital.  The charges against the defendant are a result of his actions.  
5.	The charge of theft is not a new charge before the courts but the charge of unlawfully practicing as a medical practitioner in breach of the Medical Practitioners Act 2007 is a novel one.  For your information Mr Meleisea that charge carries a maximum penalty by law of 5 years in prison.  An indication of the seriousness with which Parliament considers such offending.  
6.	The defendants actions are quite inexcusable.  He used the little knowledge that he had gained to perform unauthorized surgical procedures.  His lack of training led to disastrous results with, some of the patients suffering penile infection and in at least one case requiring hospitalization.  The parents involved and the children concerned trusted the defendant, they gave him their “faatuatuaga” to perform these procedures safely and effectively, the defendant breached that trust.  All for the sake of a few tala.  
7.	His expulsion from the medical program of the Faculty of Medicine is an entirely appropriate penalty.  He must now be held to account for breaking the laws of this community.  The courts penalty must soundly condemn such actions and bring home to the defendant and to the general public the seriousness of such conduct.  The court has had to consider carefully whether a prison sentence should be imposed on Mr Meleisea. I note in this respect the police are not seeking a prison penalty and have left the matter to the court.  
8.	I have read Nelson your pre-sentence report from the probation office, it speaks well of your background in particular the references attached to that report indicate you have carried out a lot of work with youths of your village.  I also note that your wife is expecting this month your fourth child, you have a young family, all your children are under 5 years of age.  
9.	You should think of them before you do something like this again.  I have considered your counsels submissions, he makes a number of valid points. You have a clean record, this is your first court appearance.  You have also pleaded guilty which has avoided the children having to come to court to testify about a sensitive subject.  
10.	Counsel has also sought leniency on the basis that you did not instigate the surgeries you merely responded to “talosagas” from a relative to carry them out.  That however Nelson is no excuse or justification for what you did.  You knew you were not authorized or qualified to be a medical practitioner. Yet you chose to go ahead and deliberately engaged in this offending with little or no thought to potential consequences.  For example Nelson if one of these children had died from infection, what would you have done? You would then be facing manslaughter charges, possibly more serious charges.  And this would have all been caused by your actions.  
11.	In weighing all these matters I have however come to the conclusion that imprisonment is not an appropriate penalty to impose on you, I will deal with it by way of financial penalties.  Your client has the ability to meet financial penalties Mr Su’a? (Counsel said yes).  
12.	Your counsel has indicated that you are in a position to meet these financial penalties and I note from the pre-sentence report you have sources of income. So therefore firstly in respect of the charge of theft you will be convicted and ordered to make full restitution for the goods stolen from the Ministry of Health.  (It has been confirmed to me by your counsel you have now made full restitution for the goods stolen in the sum of $1,237.70.)  In addition to that on the charge of theft you will pay a fine of $200, Police costs $50 Probation Office costs of $50, a total sum of $300 payable forthwith in default 3 months in prison.  
13.	In respect of the two counts of unlawful practice as a medical practitioner you are convicted on both charges, you will pay Prosecution costs of $100, Probation Office costs of $100, that is a total of $200 again payable forthwith in default 2 months in prison.  
14.	In respect of those two charges the court is also ordering a Reparation Report from the Probation Office pursuant to section 25 of the Sentencing Act 2016 in respect of the twenty eight (28) victims of this offending.  Your counsel will explain to you Nelson what that means, but essentially it means you will also be required to make reparation to the victims of your crime and the amount is going to be recommended to the court by the Probation Office and then we will settle the question of reparation. 
15.	But they will need time to prepare those reports. This matter is further adjourned to 12:30 noon on the 01st of May for the Probation Office to produce that report Nelson. You and your counsel will have to see the Probation Office to work out the details of this report that the court is requesting. But until the 01st of May your bail will continue.  O lea e te saini i le Ofisa o Leoleo? (Defendant said he signed every Friday at the Police Station). Ia leai o le a sui lau saini, e te sainii i le Ofisa Faanofo Vaavaaia i le Aso Faraile ae se’i taumafai e tapena mai le lipoti mo le aso 01 o Me.  Ua e malamalama i le faaiuga o lau mataupu Nelson? (Defendant indicated he understood).  
JUSTICE NELSON