Police v Mulitalo [2021] WSSC 1 (28 January 2021)

SUPREME COURT OF SAMOA
Police v Mulitalo [2021] WSSC 1

Case name:	Police v Mulitalo
Citation:	[2021] WSSC 1
Decision date:	28 January 2021
Hearing date:
Parties:	POLICE v PA’U TAFAOGALUPE MULITALO male of Lalovaea and Samatau
File number(s):	Charging Document/2020 .
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the charge of obtaining by deception the possession and control of properties, namely construction tools and machinery, you are convicted and fined $1,500.00. You are also ordered to pay prosecution costs of $500.00. The total sum of $2,000.00. must be paid by 2pm tomorrow 29 January 2021, in default 6 months imprisonment
Representation:	V Faasii for Prosecution Lefau H Schuster for Accused
Catchwords:
Words and phrases:	aggravating factors – gravity of the offence – obtaining by deception –
Legislation cited:	Crimes Act 2013 s.172(1)(a) Sentencing Act 2016 s.69 Lawyers and Legal Practice Act 2014
Cases cited:	AG v. Ropati [2019] WSCA (15 April 2019)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

PA’U TAFAOGALUPE MULITALO male of Lalovaea and Samatau.
Defendant

Counsel:
Ms V Faasii for Prosecution
Mr Lefau H Schuster for Accused

Sentence: 28 January 2021

SENTENCING OF JUSTICE ROMA

Charge

[1] After a defended hearing in March 2020, you were found guilty of one charge of obtaining by deception, namely by making a false representation to obtain possession and control of the complainant’s construction tools and machinery, under s172(1)(a), Crimes Act 2013. The maximum penalty is 7 years imprisonment.

Offending

[2] The circumstances relating to your offending are referred to in detail in my decision of 10 July 2020. The material facts however are that:

(i) In May 2015 pursuant to an agreement between you and the complainant, he commenced the construction of your building on land at Togafuafua. The complainant brought onto the site machinery and tools to be used in the construction;
(ii) Three (3) weeks into the project, following a dispute between you and the complainant concerning the price you had paid and the status of works, you stopped the complainant’s workers from coming onto the site and taking back the tools and equipment;
(iii) You informed the workers that you had a Court Order allowing you to keep possession of the tools. You also informed the complainant by way of a letter that his tools and equipment would remain with you until your money was refunded;
(iv) The complainant sought help from police who made contact with you and suggested that you return the properties and file a claim to recover your money. You told police however that you had an Order allowing you to keep possession of the properties;
(v) On 3 separate occasions, you informed the complainant and police that you had the said Order but failed to produce it when demanded. The fact is, in July 2015 you filed an ex parte motion seeking an Order for possession of the tools and equipment. But no such Order was granted and you were never able to produce any when given the opportunity by police;
(vi) It was only after Police turned up with a search warrant around September / October that they were able to retrieve the complainant’s properties from the site.

Accused

[3] You are a 58 year old barrister and solicitor and a member of the Samoa Law Society. You are a father of 3 children and the youngest of 10 siblings who has worked hard to get to where you are now. You have qualifications in Social Work and Law from Universities in New Zealand. You have lectured at Massey University in Auckland and co written publications on Social Work in the Samoan context in New Zealand.

[4] You were admitted to the Bar in New Zealand in 2013. You returned home the following year with the intention of serving your family and people of Samoa. You were admitted to the Samoan bar and practiced with a couple of law firms here from 2014 until 2018 when your practicing certificate was suspended. You have since been teaching part time at Maluafou College.

[5] Obviously, you are a highly qualified and very talented individual. But you have also had a challenging time professionally and personally. Following your suspension from legal practice, you have struggled to make ends meet financially.

[6] Since the Court’s finding of guilt, you have apologised to complainant.

[7] The testimonials provided through Probation speak highly of your character and service to your family village and church. You have no previous conviction but there is record of an unrelated offending for which you were discharged without conviction in the Family Violence Court in 2019.

Aggravating Factors

[8] In relation to your offending, the following are the aggravating features:

(i) Continuous offending - On at least 3 separate occasions over a 5 months period, you falsely told both the complainant and police that you had a Court Order so that you could keep possession of the tools and equipment. You neither produced the Order in the opportunities and time allowed by police, nor came clean at any stage that there was no such Order, and police had to resort to a search warrant to retrieve the complainant’s property;
(ii) Nature of the deception - As a lawyer, you knew very well the effect of a Court order and expected that police would rely on your false representation that you had one. Despite the nature of your dealing with the complainant, there was also an expectation, given your past lawyer - client relationship that the complainant would rely on your representation albeit false;
(iii) Loss to the complainant - For 5 months, the complainant was denied the use of his tools and equipment in his other projects. In the VIR, he says that he lost income from the hirage of his equipment; some of the equipment were lost when you had their control and possession; and some were not in the condition they were before when returned. You do not also deny that the equipment were used by your replacement builder in the completion of your project;
(iv) Impact on victim – Apart from his loss, the steps he took and time spent to recover his properties also took a toll on the complainant mentally.

[9] You claim through Counsel that none of this would have happened had the complainant not breached your agreement and done works worth the amount you paid. That may be so, but you knew you had options other than to falsely inform both the complainant and police that you had an Order to negotiate a refund of your money.

[10] There are no aggravating factors relating to you as Offender.

Mitigating Factors

[11] There are no mitigating features of your offending.

[12] As Offender I take into account your personal circumstances as I have referred to earlier, your previous good character and your apology to the complainant.

Discussion

[13] The main question is whether I should grant your application for a discharge without conviction under s69, Sentencing Act 2016.

[14] The law on discharges without conviction is well settled. (see AG v. Ropati [2019] WSCA (15 April 2019). The approach is that the Court must:

(i) Assess the gravity of the offence, a task which includes having regard to the aggravating and mitigating factors;

• (ii) Identify the direct and indirect consequences of a conviction;
• (iii) Decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending;
• (iv) Exercise a discretion as to whether a discharge without conviction should be the outcome.

[15] Applying the 4 steps to your offending, I find as follows:

(i) Gravity of offending

[16] I do not assess your offending to be at the low end of the scale. On at least 3 separate occasions over a 5 months period, you falsely informed the complainant and police that you had an Order to keep possession of the equipment. You failed to produce the Order in the times and opportunities granted to you and police had to obtain and execute a search warrant to retrieve the properties from your home. It is true that you applied for an Order but no such Order was ever granted, not when you made the representations and certainly not anytime subsequently.

[17] I accept that you had issues with the complainant’s workmanship and had kept the equipment to negotiate a refund of your money. To do so however by intentionally and continuously misleading police of the existence of a Court order when you could have recovered your money through the proper process of a civil claim must not be viewed lightly.

[18] Whilst no evidence was heard on the extent of the complainant’s loss, the length of time that he was denied the use of his tools and possible income from their hirage and the condition of the tools upon return to the complainant indicate that his loss was not insignificant. It was also not denied that the equipment were used to your benefit in the completion of your project by the replacement builder.

(i) Consequences of a Conviction

[19] I accept your Counsel’s submission that from a reading of the Lawyers and Legal Practice Act 2014 and the correspondence between you and the Samoa Law Society, a conviction for an offence involving dishonesty like the charge against you, will have a likely impact on your ability to practice law. I am not satisfied however on the material before me that it will have the same impact on your ability to practice as a teacher and continue teaching at Maluafou College.

[20] As to the impact of a conviction on your ability to practise law, I bear in mind the remarks of the Court of Appeal in Ropati at paragraph 65 where it said:

“Whether or not a conviction is entered, the Law Society can make up its own mind as to his fitness to practice. It is not the function of the Court to conceal offending from proper authorities by declining to enter convictions where they would otherwise be appropriate.”

(ii) Disproportion between gravity and consequences

[21] Despite your explanation, this was serious offending on your part. As a lawyer, you knew the impact of a Court order and expected that the complainant would rely on your false representation that you had one to keep the equipment. You further took police along the same representations and despite opportunities allowed to you to produce the Order, you never did and police had to resort to a search warrant from the Court to retrieve the tools. Meanwhile the complainant was denied possession, use and hirage of the equipment for 5 months.

[22] Whilst I accept that a conviction will have an impact on your ability to practise law, I am not satisfied that such would be out of all proportion to the gravity of your offending. I am also mindful that the Law Society will have to make its own determination and that the Court must not conceal offending from the proper authorities by declining to enter convictions where they would be otherwise appropriate.

(iii) Overriding discretion

[23] Given my conclusion on the proportionality of the consequences of a conviction and the gravity of the offending, it will not be necessary to exercise the statutory discretion that would otherwise follow.

[24] But even if I found that the consequences of a conviction would be out of all proportion to the gravity of the offending, I am not satisfied that this is an appropriate case to exercise the discretion in favour of a discharge. Lawyers are expected to conduct themselves to a high ethical standard in their dealings with clients but also with members of the public. To grant a discharge without conviction in the circumstances of your offending in my view would be sending out a very wrong message.

Penalty

[25] Prosecution recommend a fine of $3,000.00. I have reviewed the sentencing authorities cited in their submissions and agree that a fine is an appropriate penalty.

[26] On the charge of obtaining by deception the possession and control of properties, namely construction tools and machinery, you are convicted and fined $1,500.00. You are also ordered to pay prosecution costs of $500.00. The total sum of $2,000.00. must be paid by 2pm tomorrow 29 January 2021, in default 6 months imprisonment

JUSTICE FEPULEA’I A. ROMA