Police v Atiifale [2020] WSSC 102 (26 June 2020)

SUPREME COURT OF SAMOA
Police v Atiifale [2020] WSSC 102

Case name:	Police v Atiifale
Citation:	[2020] WSSC 101
Decision date:	26 June 2020
Hearing date:
Parties:	POLICE v PISI ATIIFALE male of Taelefaga Fagaloa. AND SOSAIETE FUIAVA TALALUPE male of Taelefaga Fagaloa AND VAAFA’I TULIMA male of Taelefaga Fagaloa
File number(s):	S1827/19, S1828/19, S1829/19
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	JUSTICE FEPULEA’I A. ROMA
On appeal from:
Order:	On the charge of arson, each of you is convicted and sentenced to 3 years and 9 months’ imprisonment. Time in custody to be deducted in respect of the accused Vaafai Tulima.
Representation:	Q. Sauaga for Prosecution M. Soonalole for First Defendant Second & Third Defendant in person
Catchwords:
Words and phrases:	arson – aggravating factors – damage property by a fire – starting point for sentence – sentence
Legislation cited:	Crimes Act 2013 s.182 (1) (b)
Cases cited:	Police v Pogi [2014] WSSC 156 (28 July 2014); Police v. Cooper [2014] WSSC 197 (21 November 2014); Police v Faamanu [2009] WSSC 37 (27 April 2009)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v PISI ATIIFALE male of Taelefaga Fagaloa

First Defendant

AND

POLICE v SOSAIETE FUIAVA TALALUPE male of Taelefaga Fagaloa
Second Defendant

AND
POLICE v VAAFAI TULIMA male of Taelefaga Fagaloa
Third Defendant

Counsel:
Q. Sauaga for Prosecution
M. Soonalole for First Defendant
Second & Third Defendant in person

Sentence: 26 June 2020

ORAL SENTENCE OF JUSTICE ROMA

Charge

[1] You appear for sentence on one joint charge of arson contrary to section 182(1)(b) Crimes Act 2013. You denied the charges and following a defended hearing on the 10^th and 11^th June, I found you all guilty of the charge.

Offending

[2] From the evidence, it was clear that there were differences not just between the complainant and other families in the village but between the complainant and the village council. The differences relate in part to land which has been the subject of disputes before the Land and Titles Court in which the Court ruled in favour of the complainant. In fact, at the time of the offending, the complainant was banished from the village.

[3] On the admissions of Sosaiete and Vaafai to police and Pisi to his uncle Leuta, I found that you were all responsible for setting fire to the complainant’s two residential houses in the early hours of 20 September 2019. On the night before, Vaafai had gone to Pisi to get petrol and hours later, the neighbours and village woke to flames from the two burning houses. Fortunately, no one was hurt or injured.

Accused

[4] For Pisi Atiifale, you are 36 years of age. You are the fifth of seven siblings. You are married and a father to 4 children. You have worked as an operator for EPC’s hydro power plant at Taelefaga Fagaloa for over 14 years now. Two testimonials from the Corporation speak highly of your character. So does your family, the pulenuu and pastor of one of the religious denominations in the village. In the pre-sentence report, you continue to deny responsibility despite your admission to Leuta and the court’s finding of guilt. You are a first offender.

[5] For Sosaiete, you are 39 years of age and the younger of 2 siblings. You are married and have 4 children. You cultivate kava to support your family. Being the only male in your household, you are heavily dependent upon for support. Testimonials from your mother and pulenuu all speak highly of your character and service to your family and village. You also continue to deny responsibility despite your admission to police and the court’s finding of guilt. You are a first offender.

[6] For Vaafai, you are 46 years of age and married with 6 children. You have held a number of jobs previously; you now work on your kava plantation to support your family. Your parents and pulenuu speak highly of your character and contribution to your family and village. Like the others, you continue to deny responsibility despite your admission to police and the court’s finding of guilt after hearing the evidence. You are a first offender.

Aggravating Factors

[7] In relation to the offending, the aggravating features are:

(i) planning and premeditation – you were clearly unhappy with the complainant as were others in the village. Vaafai had gone to get petrol from Pisi and following a discussion amongst you, your plan was carried out in the middle of the night when the village were asleep;
(ii) impact on the complainant’s properties - the two residential houses were completely destroyed. There is nothing before me to indicate their value but I do not doubt that it must be significant. The properties were an enclosed european style house made of concrete and an open meeting fale;
(iii) impact on the complainant’s family - the houses were not just the complainant’s who resides overseas but his family’s.

[8] There are no aggravating factors personal to you as offenders.

Mitigating Factors

[9] There are none relating to the offending. But I consider the following personal to you as offenders:

(i) your personal circumstances including the fact that you are first offenders;
(ii) fine of $3,000 imposed by the village.

Discussion

[10] Arson is a serious criminal offence. It carries a maximum penalty of 14 years’ imprisonment. And this is a very serious case of arson involving substantial damage to and loss of property. It involved not one by two residential houses of the complainant.

[11] The sentence I impose must therefore make you accountable for the harm caused to the complainant and his family. It must also deter you and other members of the community who may be disposed to commit this type of offending.

[12] Prosecution seek a custodial sentence with a starting point of 5 years. They rely on Police v Pogi [2014] WSSC 156 (28 July 2014); Police v. Cooper [2014] WSSC 197 (21 November 2014); and Police v Faamanu [2009] WSSC 37 (27 April 2009). I have reviewed those authorities as well as the other sentencing decisions. In view of the circumstances of the offending including the properties destroyed, the closest to your case is Police v Faamanu [2009] WSSC 37 (27 April 2009) where several matai and taulelea of Matautu Falelatai burnt down what the Court described as a “beautiful European style house valued at $516,000 and furniture valued at $438,000.”

[13] The Court adopted a 3 years starting point. I am mindful however that the maximum penalty of arson then under the old Crimes Ordinance 1961 was 5 years. It has since increased significantly to 14 years under the Crimes Act 2013, a reflection of the seriousness with which Parliament now views the offending of arson.

[14] Having regard to the circumstances and gravity of your offending, I will adopt a starting point of 5 years as recommended by prosecution. For your personal circumstances including the fact that you are first offenders, I deduct 12 months leaving a term of 4 years. I make a further deduction of 3 months for the penalty imposed by the village council. The end sentence is 3 years and 9 months.

Result

[15] On the charge of arson, each of you is convicted and sentenced to 3 years and 9 months’ imprisonment. Time in custody to be deducted in respect of the accused Vaafai Tulima.

JUSTICE FEPULEA’I A. ROMA