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Police v Siaosi [2014] WSSC 19 (30 May 2014)

SUPREME COURT OF SAMOA
Police v Siaosi [2014] WSSC 19

Case name: Police v Siaosi

Citation: [2014] WSSC 19

Decision date: 30 May 2014

Parties:
POLICE (prosecution) AND FOTU SEMEATU SIAOSI male of Manono-uta and Faleatiu

Hearing date(s):

File number(s): S1198/14, S1199/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia for prosecution
Accused in person

Catchwords:

Words and phrases:
using a firearm against a law enforcement officer, armed with a dangerous weapon, maximum penalty, aggravating and mitigating features, sentence

Legislation cited:
Crimes Act 2013 s.127
Police Offences Ordinance 1961 s.25(1)

Cases cited:
R v Collier CA27/92
R v Hartley [2012] NZHC 2124
R v Samuels [2009] NZCA 153
R v Taylor CA407/88

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NOS: S1198/14, S1199/14

BETWEEN:

P O L I C E

Prosecution

A N D:

FOTU SEMEATU SIAOSI of Manono-uta and Faleatiu.

Accused

Counsel:

F Lagaaia for prosecution

Accused in person

Sentence: 30 May 2014

S E N T E N C E

1. The accused appears for sentence on one count of using a firearm against a law enforcement officer, contrary to s.127(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one count of being armed with a dangerous weapon, contrary to s.25(1) of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. The accused pleaded not guilty to both charges and the trial was held on 15 May 2014. The accused was found guilty of both charges and he is now appearing for sentence.
2. The offence of using a firearm against a law enforcement officer is a new offence introduced into our criminal law under s.127 of the Crimes Act 2013 which provides:

“(1) A person is liable to imprisonment for a term not exceeding seven (7) years who uses any firearm in any manner whatever against any police officer, or any traffic officer, or any prison officer, acting in the course of the police officer’s duty knowing that, or being reckless whether or not, that person is a police officer or a traffic officer or a prison officer so acting.

“(2) A person is liable to imprisonment for a term not exceeding seven (7) years who uses any firearm in any manner whatever with intent to resist lawful arrest or detention of himself or herself or of any other person”.

3. Section 127 is in terms similar to s.198A of the Crimes Act 1961 (NZ) which was enacted in 1986.
4. In the case of R v Collier CA27/92, 21 May 1992 at p3, Richardson J in delivering the judgment of the New Zealand Court of Appeal stated:

“The sentencing Judge reviewed a number of sentencing appeal decisions in which this Court emphasised that in enacting s198A Parliament demonstrated a firm intention that those using firearms against law enforcement officers would be dealt with severely and that deterrence must be a major consideration in sentencing in such cases”.

5. In R v Samuels [2009] NZCA 153, Fogarty J in delivering the judgment of the New Zealand Court of Appeal said of s.198A at para [13]:

“As this Court said in R v Taylor CA407/88, 9 May 1988 at 6: ‘Section 198A was enacted in 1986 and shows a firm legislative intention that those using firearms against law enforcement officers should be dealt with severely. Clearly deterrence must be a major consideration in sentencing for this offence. The maximum penalty is one of 14 years imprisonment, and the section does not distinguish between different kinds of use, indeed it speaks of using a firearm in any manner whatever. Presenting a firearm, even an unloaded one, is thus clearly within the terms of the section, and any instance of it must be treated seriously’”

6. Further on, Fogarty J said at para [14]:

“Police officers on patrol are routinely unarmed, and are vulnerable to attacks of this sort. Presenting firearms against law enforcement officers is intended by Parliament to be dealt with severely”

7. In the subsequent New Zealand case of R v Hartley [2012] NZHC 2124 at para [22], Collins J in the High Court, when passing sentence on a conviction under s.198A, cited the same passage from R v Taylor CA 407/88, 9 May 1988 at 6 cited by the Court of Appeal in R v Samuels [2009] NZCA 153 at para [13].
8. The New Zealand authorities thus show that using firearms against law enforcement officers is a serious offence which must be dealt with severely with deterrence being a major consideration in sentencing. I propose to apply the New Zealand approach to this case bearing in mind that the maximum penalty for the offence in New Zealand is 14 years imprisonment whereas the maximum penalty in Samoa is 7 years imprisonment.

The offending

9. As the evidence given by the police officers at the trial showed, on Tuesday afternoon, 4 March 2014, at around 12 noon, a police vehicle from the Faleolo police post, which is on the opposite of the road from the Faleolo International airport, went to the Mulifanua wharf to drop off a police officer who was to be on duty at the wharf. As the police vehicle approached the entrance gate to the wharf, a silver mini van was parked near the gate with three men in it. This van belongs to the accused. Something was noticed by the police officers about the three men in the van which made them suspicious that there was marijuana inside the van. After dropping off the officer who was to be on duty at the wharf, the police vehicle returned to the entrance gate to the wharf where the van was still parked.
10. There were then two officers in the police vehicle. As the police vehicle came close to the van, the van suddenly took off at speed onto the road from the Mulifanua wharf heading east towards the Faleolo international airport. The police vehicle then followed the van which was then travelling on the right side of the road which was the wrong side of the road. At times the van zigzagged from the right to the left side of the road and then back to the right side of the right side of the road creating problems for other traffic on the road which had to move onto the side of the road to avoid collision with the van.
11. The two officers in the police vehicle thought that the occupants of the van were drunk and were posing a real danger to other traffic using the road. So they called the police at the Faleolo police post and informed them about the van that was heading towards the airport. Corporal Erika Utumapu who answered the call and two other officers then hurried to the road in front of the Faleolo police post in anticipation of the arrival of the van. At that time, senior sergeant Sione Menefata and another officer were manning a police check-point on the road in front of the Faleolo police post. They were told by corporal Erika about the on-coming van. So there were five officers on the road at that time awaiting the arrival of the van.
12. Not long afterwards, the police officers noticed the van some distance away coming on the wrong side of the road. At that time, a bus went past the police officers heading in the opposite direction. The busdriver must have seen the van coming on the wrong side of the road because he tooted the horn of the bus. However, the van kept coming on the wrong side of the road. The busdriver then turned the headlights of the bus on and off so that the van could see the bus. However, the van still kept coming on the wrong side of the road. The busdriver then turned the bus to the side of the road to avoid a head - on collision with the van. The van then went past.
13. At that time, corporal Erika had moved onto the right side of the road where the van was coming. He waved down the van signalling to the van to move onto the side of the road and stop. The van would not have any of that either. It kept going straight towards corporal Erika. Seeing what was going to happen to him, corporal Erika jumped to the side of the road to avoid being run over. However, he was able to see the accused whom he knows well and who was sitting in the front passenger’s seat of the van aiming a gun at him.
14. The van then veered onto the left side of the road where the police check-point was. Senior sergeant Sione Menefata who was manning the police check-point with another officer signalled to the van to stop. But the van would also not have any of that either. It just kept going and ran over the cones at the police check-point. The police officers then got onto the police vehicle, which is the pick-up vehicle that had been following the van from the Mulifanua wharf and gave chase to the van.
15. The police vehicle soon caught up with the van at Satapuala and drove close alongside the van. At that time, the police said the accused was pointing the gun at them. The police then called out to the occupants of the van to move the van to the side of the road. The van slowed down but was still in motion. The police vehicle also slowed down. Corporal Erika who was on the tray of the police pick-up vehicle then jumped down and hurried towards the gun which was being aimed at the police by the accused who was sitting in the front passenger’s seat of the van.
16. Corporal Erika grabbed the barrel of the gun and tried to pull the gun away from the accused. A struggle for the gun ensued. At that time, the driver of the van also grabbed the gun to prevent the police officer from getting the gun. The van then took off at speed and corporal Erika lost his grip on the gun. The police then called the Faleolo police post from which orders came for the police to return to the post for the safety of the officers.
17. The van then stopped bout 100 to 200 metres away. The accused and the driver of the van then got out of the van. The driver pointed the gun upwards in the direction of the police officers and discharged it five times. The officers had to seek cover behind the police vehicle. As it appeared during the trial, up to now the police have not been able to find the other two occupants of the van or the gun.
18. At the conclusion of the evidence, I found both charges against the accused to have been proved by the prosecution beyond reasonable doubt. I did not accept the evidence of the accused that he did not point the gun at corporal Erika or the police officers.

The accused

19. As it appears from the pre-sentence report, the accused is married and has a four year old daughter. He finished school at Year 12 and then enrolled at the Marine Training School for two years. He is a sailor and was employed as a crew man on a cruise ship. At the time of this offending, he was visiting his family in Samoa.
20. Testimonials have been given by the accused’s mother and pastor of his church to the probation service in support of the accused. However, the accused has previous convictions for offences with similarities to his present offending. In 1999 he was convicted for throwing stones. In 2007 he was convicted for throwing stones, presenting a firearm, being armed with a dangerous weapon, possession of an unlawful weapon, possession of unlawful ammunitions, and threat to kill.
21. The used cartridges discharged from the gun by the driver of the van were collected by a matai of Satapuala and given to the police. Those used cartridges were examined by the police arms officer and found to have been discharged from an unlawful firearm.
22. It also appears from the pre-sentence report that when the accused was interviewed by the probation service for the preparation of that report, he was still denying the charges which have been found proven against him. This is not a sign of remorse on the part of the accused.

Aggravating and mitigating features

23. Even though the accused has been charged with aiming a gun at the police, this has to be viewed in the context of what occurred in this case in order to fully appreciate the gravity of the offending. The accused was in effect trying to frustrate and prevent the police from the execution of their duty of ensuring public safety on the road when he first aimed the gun at corporal Erika as the police officer waved down the van to stop and signalled to it to pull to the side of the road. The accused was also trying to avoid being apprehended and arrested by the police on both occasions he aimed the gun at the police. When corporal Erika tried to remove the gun from the accused he held on to the gun and struggled to retain possession of it until the van took off again at speed causing the police officer to lose his grip on the barrel of the gun. This was potentially a dangerous situation.
24. The gun was also aimed at the police at close range and the police officers being human must have been traumatised by the actions of the accused.
25. What may be said in favour of the accused is that he did not discharge the gun at the police which seems to suggest that he was trying to avoid being arrested by the police. But this was still a dangerous situation. Anything could have happened to turn the situation into a fatal incident. So dangerous was it, that the Faleolo police wisely directed the police to return to the police post for the safety of the officers.

Discussion

26. As this is the first case for the new offence under s.127 of the Crimes Act 2013, as counsel or the prosecution has informed the Court, there is no previous comparable Samoan case on this type of offence. Be that as it may, this is a serious offence and the need for deterrence must be taken into consideration. I have also consulted some of the New Zealand sentencing decisions for this type of offence and I bear in mind that the maximum penalty in New Zealand is 14 years imprisonment whereas the maximum penalty in Samoa is 7 years imprisonment. Having considered all these matters, I will take 2½ years as the starting point for sentence . There is no mitigating feature in relation to the offending.
27. In relation to aggravating features personal to the accused, I will take a 3 months uplift for the accused’s previous convictions which will increase the starting point to 2 years and 9 months. There is no mitigating feature personal to the accused. So there will be no deduction on that basis.

The result

28. For the offence of using a firearm against a law enforcement officer the accused is sentenced to 2 years and 9 months imprisonment.
29. For the offence of being armed with a dangerous weapon which in this case was an unlawful firearm, the accused is sentenced to 4 months imprisonment.
30. Both sentences to be concurrent.
31. The time that the accused has spent in custody pending the outcome of this matter is to be deducted from the total sentence of 2 years and 9 months imprisonment.

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CHIEF JUSTICE
Solicitor
Attorney General’s Office, Apia for prosecution