Police v Matagi [2018] WSSC 1 (15 January 2018)

SUPREME COURT OF SAMOA
Police v Matagi [2018] WSSC 1

Case name:	Police v Matagi
Citation:	[2018] WSSC 1
Decision date:	15 January 2018
Parties:	FELISE PETELO MATAGI male of Matautu Falelatai and Lefaga.
Hearing date(s):	15 November 2017
File number(s):	S817/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- Convicted of all the charges against him and placed on probation for 18 months on the special conditions that he is to perform 75 hour of community service as directed by the probation service and to attend the Toe Afua Se Taeao Fou programme to address his use of alcohol.
Representation:	A Matalasi for prosecution Accused in person
Catchwords:	aggravating features relating to the offending – armed with a dangerous weapon – burglary – indecent act – mitigating features relating to the accused as offender – obscene language ––Toe Afua Se Taeao Fou programme –
Words and phrases:
Legislation cited:	Crimes Act 2013s.174, s.59 (3) and s.25 Police Offences Ordinance 1961, s.4 (a) and s.25
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FELISE PETELO MATAGI male of Matautu Falelatai and Lefaga.
Accused

Counsel: A Matalasi for prosecution

Accused in person

Sentence: 15 January 2018

S EN T E N C E

The charges

1. The accused appears for sentence on the following four charges:-
   • (a) burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment;
   • (b) doing an indecent act on a young person, contrary to s.59 (3) of the Act, which carries a maximum penalty of 10 years imprisonment;
   • (c) using obscene language, contrary to s.4 (a) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment or a fine of $40; and
   • (d) being armed with a dangerous weapon without a lawful purpose, contrary to s.25 of the Ordinance, which carries a maximum penalty of one year imprisonment.
2. The accused pleaded guilty to the charge of being armed with a dangerous weapon without lawful purpose and not guilty to the other three charges. At trial on 15 November 2017, he was found guilty of those three charges.

The offending

3. The first victim in this matter is a 16 years old female who is a student and the second victim is her 11 year old brother who is also a student. At the time of the offending, they were living with their parents at Matautu, Falelatai, where their parents were serving as Catholic catechists.
4. On Saturday afternoon 6 May 2017, the first victim was at home with the second victim and her two other young siblings while their parents were attending a wedding at another sub-village of Falelatai. She was doing her schoolwork on a table when the accused came to the door of their house and called out to open the door. She refused to open the door as the accused appeared drunk. The accused managed to damage the door and entered the house. At that time he was holding a bushknife and wearing only a lavalava. The first victim became scared ran away from the house but the accused chased after her with the bushknife. He called out “Today I will have sex with you” (Ole asō ou te meaga ai oe). When she came to a shop she opened the door and jumped inside. The shopkeeper was taken by surprise and asked the first victim what is happening. She told the shopkeeper about the accused chasing after her with a bushknife. When the shopkeeper looked outside, she saw the accused. The first victim remained in the shop for a while until it was safe for her to return home.
5. On the same Saturday afternoon 6 May 2017, the accused exposed himself and showed his penis to the second victim.

The accused

6. As the pre-sentence report shows, the accused is 27 years old, single, and currently unemployed. His father passed away when he was quite young. He dropped out of school at Year 11. He then stayed home and helped out with family chores. In 2011 he found a job as a bus assistant. At the time of this offending, he was unemployed and was staying home with his mother and sister who works at a resort and is now the sole provider for the family. The accused is also a first offender.
7. The accused told the probation service that on Friday night prior to this offending, he and six other boys of his village had been drinking five bottles of Russian vodka. They did not finish drinking until Saturday morning. So he must have been heavily drunk when he went to the house of the victim’s family. He has been drinking alcohol since the age of 21 years. As a result of this offending, the accused has been banished from his village.

The victims

8. As early mentioned, the first victim is 16 years old and the second victim is 11 years old. They are sister and brother and both attend school. There are no victim impact reports.

The aggravating features relating to the offending

(a) Home invasion

9. The first aggravating feature relating to this offending is that it involved home invasion.

(b) Place of offending

10. This offending occurred in the house of the village Catholic catechist who is the father of the victims. In Samoan custom, the house of the “faifeau” is highly respected and it is a serious offence for any member of the village to enter or invade the faifeau’s house without justification, especially if it is for the purpose of committing an offence.

(c) Use of a weapon

11. Even though the accused is separately charged with being armed with a dangerous weapon without any lawful purpose, I consider the fact that the accused was armed with a dangerous weapon as an aggravating feature relating to the other offences with which the accused has been charged.

(d) Age difference

12. The age difference of 11 years and 16 years between each of the two victims and the accused is another aggravating feature relating to this offending.
    • (e) Vulnerability of the victims
13. At the time of the offending the victims and their young siblings were by themselves at their house as their parents were attending a wedding at another sub-village of Falelatai.

The mitigating features relating to the accused as offender

(a) Ifoga and Reconciliation

14. The accused’s mother apologised to the victims family. The village church has also performed a ifoga to the victims family and this matter has been settled.

(b) Banishment

15. The accused has also been punished by his village by banishing him from the village.

(c) Punishment by Matautu, Lefaga

16. When the accused was banished from his village, he went and lived with his uncle at Matautu, Lefaga. As a result, his uncle was banished from Matautu, Lefaga. His uncle has, however, been reinstated after he has presented the village with two large fine mats, money, and food.

(d) Guilty plea

17. The accused’s guilty plea to the charge of being armed with a dangerous weapon without any lawful purpose is of limited value as he had pleaded not guilty to the other three charges against him and this matter had to go to trial.

Discussion

18. In considering an appropriate sentence, I have decided to look at the offending as a whole and in particular its aggravating features. I have also considered the mitigating features relating to the accused as offender. In the end, I have decided to give the accused one more chance to redeem himself. But this may be his last chance. If he reoffends and appears in Court again, he is likely to go to prison.

Result

19. The accused is convicted of all the charges against him and placed on probation for 18 months on the special conditions that he is to perform 75 hour of community service as directed by the probation service and to attend the Toe Afua Se Taeao Fou programme to address his use of alcohol.

CHIEF JUSTICE