Police v Samuelu [2021] WSSC 77 (3 December 2021)

SUPREME COURT OF SAMOA
Police v Samuelu [2021] WSSC 77

Case name:	Police v Samuelu
Citation:	[2021] WSSC 77
Decision date:	03 December 2021
Parties:	POLICE (Prosecution) AND MUTIMUTI TELEIA’I SALI SAMUELU male of Samatau (First Defendant) AND TELEIA’I ENOSA MALAGA ELIA @ SE’EVAE ELIA male of Samatau. (Second Defendant)
Hearing date(s):
File number(s):	S1611/21, S1610/21, S1609/21, S1607/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- The first defendant Mutimuti has three charges against him, he is convicted and fined $500 on each charge that is a total of $1,500. He is also the primary offender in this matter because his is the one who carried out the forging. He will therefore in addition to that pay the costs of this matter Police costs of $200, Probation Office costs of $100, Court costs of $100 and general costs of $100, that is a total sum of $500 costs. This $2,000 in total is to be paid by 12:00 noon Monday, 06 December 2021 in default he will serve three (3) months on each charge at Tanumalala Prison. - Lau susuga Teleia’i Enosa e tasi le moliaga lea e fa’asaga ia oe e $500 lau sala e tatau foi ona totogi ae lei ta le 12:00 i le Aso Gafua A iai se fa’aletonu e te nofosala foi i le toese mo le tolu (3) masina. Talosia ua uma ai ii le tatou feiloai. Aua a tatou toe feiloai e iai le tagata e alu matuā le fiafia lava.
Representation:	I Taielu for prosecution M Tuimalealiifano for both defendants
Catchwords:	- Forgery – false document – maximum penalty – start point for sentence – sentence
Words and phrases:
Legislation cited:
Cases cited:	Police v Lavea [2017] WSSC 146 Police v Stowers [2011] WSSC 23
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TELEIA’I ENOSA MALAGA ELIA @ SE’EVAE ELIA male of Samatau.
First Defendant

AND:

TELEIA’I ENOSA MALAGA ELIA @ SE’EVAE ELIA male of Samatau.
Second Defendant

Counsel:
I Tanielu for the prosecution
M Tuimalealiifano for both defendants
Sentence: 03 December 2021

S E N T E N C E

1. The defendants have pleaded guilty to a number of charges. In relation to Mutimuti Teleia’i Samuelu of Samatau information S1611/21 that during the month of November 2019 he made a false document namely a pepa lesitala o matai, Tusi Lisiti Numera 2/069 knowing it to be false with the intent that it be used and acted upon as genuine. He also pleaded guilty to S1610/21 alleging that also in the same month of November 2019 he made another false document of the same kind Number 2/070 knowing it to be false and intending that it be used or acted upon as genuine. The third charge he pleaded guilty to is S1609/21 alleging that in the same month he did present the said documents knowing it to be a forgery intending for it to be acted upon as if it were genuine.
2. The co-defendant Teleia’i Enosa Elia pleaded guilty to one charge namely S1607/21 that between the 01^st of November 2019 and 31 January 2020 knowing a saofai certificate reference no.02/070 to be forged presented it intending for it to be acted upon as if it were genuine.
3. We have asked the prosecution to note that the wording of these charges are not well laid out and had the pleas been not guilty perhaps would have been a matter in issue. But given the defendants pleas it is a matter of the prosecution ensuring that wording of their charges are properly drawn up in the future.
4. The Police summary of facts which is uncontested states that first defendant Mutimuti Teleia’i is 64 years of age from Samatau married with six (6) children. Second defendant Teleia’i Enosa Malaga is 69 years of age also of Samatau married with four (4) children.
5. The first victim or the complainant in this matter at the relevant time was the Pulenuu of the village Teleia’i Toa Matauaina. He was pulenuu from April 2019 to July 2020 but he is no longer the current pulenuu of the village.
6. The second complainant is the Ministry of Justice and Courts Administrations here at Mulinuu. These forged documents were presented to the Ministry. In particular the Land and Titles Courts Division of the Ministry.
7. The Police summary says that both defendants hold matai titles as Samatau and at the relevant time the first defendant Mutimuti Teleia’i was the Sui Pulenuu or the Deputy Pulenuu. Part of the Pulenuus role and responsibility in a village is to register Matai titles of the village by filling in the required form and lodging them with the Land and Titles Division of the Ministry of Justice and Courts Administration (“MJCA”). The pulenuu is also required to sign these documents.
8. It seems from what I have read at the relevant time the pulenuu was overseas and the first defendant was assuming the duties of pulenuu in his absence. It is alleged that while the first defendant was in this role that he forged the signature of the absent pulenuu on the matai pepa saofai for himself and the other defendant. During the month of November 2019 he then presented the document in relation to himself to the Ministry of Justice which acted upon it, advertised and in due course registered his matai title. Between 01^st of November 2019 and January 2020 the second defendant in relation to his pepa saofai did the same thing leading to registration of his title.
9. When the pulenuu returned to the country he found out about the registration of these titles and the fact that his had been forged. The defendants say that they were the ones who advised him and complaint was then laid before the police.

(HH: E iai le aao lea e sii mai sei tulai mai poo le a le faafitauli

Former Pulenuu: O lo’u igoa o Teleiai Toa Matauaina, ua ou tula’i ona o le mea e fia faamanino i lau afioga. O le tuuaiga lea faapea sa ou i fafo e leai ou te lei malaga i fafo, e fai o lea ou te i Samoa. Ae leai se faamatalaga o nei faamatalaga uma lau afioga e faamaonia.

HH: Ia ua lelei o lea e faamoemoe le Fa'amasinoga i tolaulauga lea e aumai mai le Ofisa o Leoleo ae a faapea o le sa’o lena o le a faasa’o le vaega lea. Ae o le mea moni lava pe na ei fafo pe na e iinei e le silafia e oe le mea lea na faatino e e o loo molia I le mataupu lenei a o le sa’o lena?

Former Pulenuu: O lea lava.

HH: Ia lelei faafetai,

(Point of clarification: the first complainant has appeared personally today and confirmed that at the relevant time of this offending he was in country he was not overseas.)

10. As the result of the complaint lodged by the two complainants the police investigated the matter leading to the charges against the two defendant who have now pleaded guilty thereto.
11. Both defendants have clean police records and it is apparent from the documents before the court that the titles they hold in the village are of high standing and they have held them for some time. The first defendants title was conferred in 2011 and the second defendants title earlier than that in 2006. It appears they have actively participated in village affairs using these titles over the years but for reasons not made clear to the court these titles were not registered as they should have been.
12. It is helpful for the court to remind everyone including the matais of this particular village that it is an offence under the Land and Titles Act 1981 to use an unregistered matai title. Pulenuu of the village is also under a statutory duty once he finds out about a saofai being held to attend to a registration of a title with the Lands and Tittles Court in the National Register of matais. In other words registration of titles is not an option it is a mandatory requirement under the law and if you do not do it you can be prosecuted.
13. It is clear from the summary of facts that for whatever reason the defendants did not proceed to register their titles until a court case in 2019 where they were required to appear as witnesses necessitated them taking steps to register these titles and thereby regularise their legal status.
14. Instead of going to the current pulenuu at that time who is the first complainant they chose to forge the complainants signature on their saofai certificate. They then presented these forged documents to the Registrar of the Lands and Titles Court who has no ability to know that these documents were forged. And the Registrar acted upon the document as genuine and did his job, advertising the titles and in due course registering it when there were no objections received.
15. So what the defendants did was unnecessary and with due respect to them quite stupid. There were probably other reasons why they did it. But there is no information apparent or placed before the court as to why they did not register their titles properly. What is before the court is they used these forged documents for their benefit and advantage. They must now answer for their actions.
16. Gentlemen the law requires me today to hold you accountable for your actions. And to denounce what you did as unacceptable. And in order to send a message to you and to others that what you did was wrong. For the first defendant Mutimuti the law says you can today be sent to prison for up to ten (10) years for forging this pepa saofa’i. And for you co-defendant Teleia’i Enosa the law says you can be sent to prison for up to seven (7) years for using this forged document.
17. I can tell you there are many cases where people have been sent to prison for forging saofai certificates. And for presenting saofai certificates to the Office of the Registrar causing the Registrar to wrongly act upon them. The prosecution have in their sentencing memorandum cited a number of these cases, for example the case Police v Stowers [2011] WSSC 23 where the forged document was presented to the Lands Division of the Ministry of Natural Resource and Environment (MNRE) for registration on a title to a piece of land. In that case the court sent that person to prison for twelve (12) months. I did the case of Police v Lavea [2017] WSSC 146 a few years ago where he forged a saofai certificate to register a title without a saofai. I sent him to prison for eighteen (18) months. Based on these sorts of cases the prosecution are seeking an imprisonment term for the two of you of at least eighteen (18) months. Their memo says eighteen (18) years but it has been clarified from the prosecutor that is a typographical error they are seeking a term of at least eighteen (18) months in prison.
18. Your counsel on the other hand in a well-constructed plea in mitigation has drawn the courts attention to other cases where non-imprisonment penalties were imposed by this court. Your counsel argues that because of the particular circumstances of this case and because of the mitigating factors in your favour a non-custodial penalty should be imposed. In fact your counsel seeks a discharge without conviction but I believe that would be trivialising very serious offending. I am not prepared to go down that track.
19. I have looked therefore at your case carefully because the forging of saofai certificates and presenting them to the Court office is very serious offending. The Courts duty is to protect the sanctity and integrity of pepa saofai because that is a document that is at the heart of our faamatai system. People who forge and use such documents should not be treated leniently by the court. The degree of dishonesty of a defendants conduct is also a very material consideration. In other words the matter is not just about merely forging a signature, it is also about the surrounding circumstances that led to the forging of that signature. In the Hawaii Lavea case there was a high degree of dishonesty because he forged his signature on a document when there was in fact no saofai conferring the relevant title. In your case you did have saofais but you did not take the final step of registration. Something which you only did years later by this forgery method.
20. The Court also must take into consideration factors in your favour which has been referred to by your counsel, for example the fact that you have pleaded guilty at an early stage saving the Courts time and resources. There are many good references submitted by various faifeaus and also a letter from the Alii and Faipule of Samatau including a letter from the current pulenuu of your afioaga. You also have good pre-sentence reports from the Probation Office which speak of your backgrounds of service to your family village and ekalesia. You have clean Police records and the Probation Office in their reports have confirmed you have made an apology to the first complainant but he has let the matter be dealt with by the Court.
21. In his Victim Impact Report he says that he was unfairly blamed for what happened by his village and his family for not carrying out his duties when in fact it was not him who did this, it was your forgery.
22. In deciding whether a penalty of imprisonment should be imposed or not the Court has to weigh all these facts. And in particular the criminality of the forgery that you undertook.
23. I have come to the conclusion that the circumstances of your case are not as serious or as bad as the circumstances of other kinds of forgeries that have come before this Court. But the penalty must still reflect how serious your offending was.
24. Ia o le fa’aiuga lea ua fa’ata’atia atu o lea e fa’apalagi le tatou fa’aiuga ona o fa’amaumauga a le tatou Fa'amasinoga. Aua o faaiuga a le Fa'amasinoga e le na’o mo tatou ae alu i luga o upega tafa’ilagi i lenei vaitau. Ae ao lava ona fa’aopoopo atu pea se fa'amatalaga i le tatou lava gagana laga o le mataupu lea e feagai ma pepa saofa’i. O pepa saofa’i ma saofa’i e le tau fai atu le Fa'amasinoga i le taua o lea vaega ma o le tiute a le Fa'amasinoga ina ia puipui ia mea fa’apenei ina ia manino a fa’ata’atia mai se pepa o se saofa’i a le matai o lae sa’o uma ma manino mea e manaomia e le tulafono ma e le’o iai ni fa'amatalaga sese poo ni fa’amaumauga pepelo o loo iai. O le tulaga lena e oga oga ai le mataupu. Ae pei ona tau fa’amatala atu e le Fa'amasinoga a fua atu i isi tulaga fa’apenei na tula’i i luma o le Fa'amasinoga i la’u a’u fuafua atu iai e le talafeagai se fa’asalaga fa’a-falepuipui.
25. O le a fa’asala tupe le lua fa’aiuga. Ae o upu a le atunuu Teleia’i ma Teleia’i e le aoa’i e Laupuā Tamafaiga. E leai foi se mafuaaga e umi atu ai se fa'amatalaga, e le’o oulua ni matai fou, e le’o oulua o ni taulele’a poo ni tamaiti. Ua lua silafia lelei le lua mea na fai e matuā sese lava. Afaina ai fua le alii pulenuu ma le ta’uleleia o le pulenuu ma afaina ai foi le tou afio’aga. Aua o mea fa’apenei o lea taute malamalama e ese mea e tula’i mai ii ese mea e ono tutupu i tua. Atonu ua maua ia oulua le salamō i nei solitulafono ma ou te talitonu a fua atu i le lua soifua ma le lua tautua i le afio’aga, ia ailoga e toe tula’i mai se mataupu fa’apenei. Ae tatau lava ona fai atu la’u tala. A toe aumai seisi o oulua i luma o le Fa'amasinoga i se mea fa’apenei sau le tagata ma uu mai lona fala ma lona aluga laga e leai ni fala ma ni aluga i Tanumalala. Ua tatou manino lelei i le tulaga lea Teleia’i ma Teleia’i? (Defendants indicated they understood). Ua lelei o le a fa’apena ona fai. O le a fa’asala tupe le lua fa’aiuga e tatau ona oo atu i le Aso Gafua ua totogi tupe ia a leai o lona uiga lua te toe i’u i Tanumalala.
26. The first defendant Mutimuti has three charges against him, he is convicted and fined $500 on each charge that is a total of $1,500. He is also the primary offender in this matter because his is the one who carried out the forging. He will therefore in addition to that pay the costs of this matter Police costs of $200, Probation Office costs of $100, Court costs of $100 and general costs of $100, that is a total sum of $500 costs. This $2,000 in total is to be paid by 12:00 noon Monday, 06 December 2021 in default he will serve three (3) months on each charge at Tanumalala Prison.
27. O lona uiga a fa’aletonu le totogiina o tau ia ae le’i taina le 12:00 i le Aso Gafua Mutimuti e iva (9) masina e te nofosala ai i le toese.
28. Lau susuga Teleia’i Enosa e tasi le moliaga lea e fa’asaga ia oe e $500 lau sala e tatau foi ona totogi ae lei ta le 12:00 i le Aso Gafua A iai se fa’aletonu e te nofosala foi i le toese mo le tolu (3) masina. Talosia ua uma ai ii le tatou feiloai. Aua a tatou toe feiloai e iai le tagata e alu matuā le fiafia lava.
    

JUSTICE NELSON