IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Criminal Procedure Act 1972

AND

BETWEEN:

(1) FAIOSO MATUAVAO SOVITA
(2) 	SALIMA PULEPULE
(3) 	TUIMASEVE SIOLO ESAU
(4) 	IOSEFA FALELUA
(5) 	SIMI MATUAVAO SOVITA
(6) 	LIAITA SELESELE PANAPA
(7) 	TAUESE MATUAVAO FITI
(8) 	NASERI TUIMALATU
(9) 	FOMAI ULA
(10) 	ASUERU KOME
(11) 	USOALII TAGALOA AH SAM
(12) 	KELESI VAA SAENA
(13) 	KOME MATUAVAO PUTE
(14) 	TALAVOU MATUAVAO PUTE
(15) 	POU TUIMALATU
(16) 	FUIAVAILILI SAMUELU
(17) 	MALAGAOMA VAITEALAGI MAEA
all males of Salamumu
Appellants

AND

POLICE
Respondent

Counsel: T K Enari for the first eight named appellants
T V Eti for the last nine named appellants
The Attorney-General, B P Heather, and M Tuatagaloa for respondent

Hearing: 21 January 2000
Judgment: 28 January 2000

JUDGMENT OF SAPOLU CJ

The facts of this case as may be taken from the judgment and sentencing comments of the learned District Court Judge who tried the case may be stated as follows:

The village of Salamumu has had a longstanding rule that the Methodist Church is the only religious denomination permitted in the village. Any member of the village who wished to worship in a different religion was free to do so in another village. This rule was common knowledge over the years to the villagers of Salamumu who regarded it with high sanctity.

Levao Lamese, a resident matai of Salamumu and the principal victim in this case, used to be a member of the Methodist Church of his village. He later changed with his immediate family to a different religious denomination called “Mau ia Iesu” or Gospel of Jesus which is a new religion in this country. He and his immediate family attended their new religion in a different village. About 1993 they started to conduct prayer sessions at their home as part of their normal Sunday evening worships. This was after they had attended the services held by their new religion during the day. The village took no objection as these prayer sessions were seen as part of the normal Sunday evening worships by Levao Lamese and his family.

In June 1998, Levao Lamese and his family started to have bible study sessions on Thursday nights in addition to their Sunday evening prayer sessions. As the learned trial Judge says in his judgment, these bible study sessions started with congregational singing to the backing of electrical instruments turned up fairly loudly. A prayer and a study of a particular subject from the bible where questions are asked and views are shared then followed. Another song was then sung to the backing of electrical instruments. The bible study is then concluded with a closing prayer. The number of people attending these bible study sessions grew to forty, including children, as some villagers of Salamumu and some people from outside of Salamumu joined in.

The villagers of Salamumu and particularly the Alii and Faipule (council of chiefs and orators) saw these bible study sessions as in substance a new religious denomination being established within the village in violation of the longstanding rule that the Methodist Church is the only religious denomination permitted in the village. The village therefore met in September 1998 and informed Levao Lamese who was present that he had established a new religion in the village. Levao Lamese replied he was not; his family was only conducting bible studies. The village was not convinced. So Levao Lamese was instructed to stop his new religion as it was in contravention of the long established rule that the Methodist Church is the only religion permitted in Salamumu. Levao Lamese and his group, however, continued with their bible study sessions.

Then on 12 October the village met again. Levao Lamese was not present at that meeting but he was informed by a delegation from the village that because he and his family had disobeyed the decision of the village to stop the new religion, they were therefore banished from the village and must leave the village no later than Saturday, 17 October. Again Levao Lamese and his family refused to obey and continued to stay up to the deadline. On Friday night 16 October and Saturday morning 17 October, other members of the bible study group joined Levao Lamese and his family to support their refusal to leave. Obviously matters were moving towards a head on confrontation between Levao Lamese and his bible study group on one hand and the village on the other. However Levao Lamese and his group believed that the Lord would intervene and stop the will of the village from being carried out or, if they were persecuted then they were persecuted in the name of the Lord.

Early Saturday afternoon the village, matais and non-matais or untitled men, approached the house of Levao Lamese. A spokesman for the village then made a speech concerning the refusal by Levao Lamese’s group to obey the decision of the village. A member of Levao Lamese’s group replied to give them a chance to pronounce the word of God. However activities then followed in quick succession. Calls were made to burn the houses of Levao Lamese which were immediately carried out. As members of Levao Lamese’s group walked out of the house they were assaulted. Four of them had their hands and feet tied up. Sticks were then put through their hands and feet. They were later carried to the side of the main road where they were released to go.

Levao Lamese’s houses that were burnt were two European styled dwelling houses and their contents, a faleoo or Samoan hut with its contents, and a cook house.

The appellants, together with many other defendants who did not appeal in this case, were amongst the villagers of Salamumu involved in this incident. They were charged with various offences including arson, being a party to arson, and assault. All appellants were convicted of both arson and being a party to arson, except for three who were convicted of being a party to arson only. It appears that those appellants who were convicted on both arson and party to arson were sentenced only for arson. I will proceed on that basis that sentences were passed for only one conviction in respect of those appellants. One appellant who was convicted of arson and one who was convicted of being a party to arson were also convicted of assault.

At this juncture there are certain comments I wish to make before proceeding further. Firstly, under the provisions of section 23(1) of the Crimes Ordinance 1961, the person who actually commits the alleged offence, often called the principal offender, is as much a party to that offence as the person who aids, abets, incites, counsels or procures the commission of the offence. All of them are parties to the offence. Thus a person who actually commits an assault and a person who aids, abets, incites, counsels or procures the commission of the assault are both parties to that assault and could be both convicted of the assault. The same apply to circumstances covered under section 23(2). Every person who is involved in the prosecution of an unlawful “common purpose” under that provision is a party to an offence that is committed as a probable consequence of such a common purpose. That includes the person who actually commits the alleged offence. All could be convicted of the offence that is committed. Secondly, a person charged as being a party o an offence may be convicted of that offence. Thirdly, and in case it is relevant, section 33 of the Criminal Procedure Act 1972 which provides that a person may be convicted on an information charging him with an offence or how he became a party to it does not create an offence. It is merely a procedural provision and not an offence creating provision.

I have considered the notes of evidence and the judgment of the trial Court and decided that the convictions for being a party to arson may be conveniently treated as proper convictions for arson. Those convictions are therefore treated accordingly for the purpose of the present appeals in respect of the defendants who were sentenced for being a party to arson.

In passing sentence the learned trial Judge separated the defendants into two categories. In the first category were included the members of the village council who are the matais of the village. They were the ones who made the decisions and gave the orders to burn the houses of Levao Lamese and to forcibly remove Levao Lamese and members of his group from the village. They were seen as bearing a greater degree of responsibility. In the second category were included the non-matais or untitled men who executed the orders of the village council out of a sense of traditional duty. Their degree of responsibility for what occurred in this case was considered as less serious than that of the defendants in the first category. I respectfully agree with this categorisation of the defendants as it reflects what actually happened in this case and the realities of village society.

The matais, the first category defendants, were then each convicted of arson and ordered to pay fines of $1,500 and compensations of $1,500. One of these defendants was also convicted of causing actual bodily harm and fined $250 while two others were convicted of assault and each fined $150. All these fines and compensation orders were to be paid no later than 30 November 1999, in default warrants of committal were to be issued for 10 months imprisonment.

None of the first category defendants lodged an appeal against sentence. So I am not concerned with those defendants in these appeals.

As for the defendants in the second category, each of them was convicted of arson and ordered to pay a fine of $1000 and compensation of $1000. Two of these defendants, namely, Tuimaseve Siolo Esau and Usoalii Ah Sam were also convicted of assault and each of them was fined $150. All these fines and compensation orders were also to be paid no late than 30 November 1999, in default, warrants of committal were to be issued for 6 months imprisonment.

It is these defendants in the second category (except one) who have now appealed their sentences and the compensation orders made against them. I turn now to the grounds of their appeals and the submissions made by their respective counsel.

Mr Enari for the first named eight appellants advanced two grounds of appeal which were supported by Mr Eti, counsel for the last named nine appellants. The first ground of appeal is that the fines that were imposed are excessive given the circumstances; the second ground of appeal is that the compensation orders should not have been made, or, if they should have been made the amounts ordered to be paid are excessive in the circumstances. I will deal now with the first ground of appeal.

Mr Enari first submitted that the trial Judge did not give sufficient weight to the appellants means and capacity to pay the fines that were imposed. If His Honour had done so, a lesser fine or penalty would have been imposed. He referred to the judgment of the New Zealand Court of Appeal in the case of R v Rollo [1981] 2 NZLR 667 where Somers J in delivering the judgment of the Court says at p. 672:

“Section 45 of the Criminal Justice Act 1954 requires the Court in fixing the amount of any fine to take into consideration, amongst other things, the means of the offender so far as they appear or are known to the Court. In the present case the means of the offender were and are such that imposition of a fine of $300 was not appropriate.”

Whilst we do not have a similar statutory provision in Samoa, as section 45 of the Criminal Justice Act 1950 (NZ), I accept that the means and capacity to pay of an offender as are known to the Court, is a relevant factor to be taken into consideration in fixing the amount of any fine. In fact that is also the position at common law. In Sentencing Guide (1994) by G G Hall, the learned author states at S27.3:

“The statutory obligation imposed upon the Courts is to consider the means of the offender: see eg R v Rollo [1981] 2 NZLR 667 (CA). This obligation is perhaps expressed more meaningfully in common law where it has been repeatedly stated that a fine must be within the capacity of an offender to pay.”

The author then refers to a number of Australian and New Zealand cases which are not available to this Court and one English case in support of that statement. This English case is R v Churchill [1966] 2 All ER 215 where it is stated at P.221:

“The appellant was sentenced to a fine of 2,000 with eight months imprisonment in default. When he gave his evidence he was extremely frank, indeed his evidence almost amounted to a plea of guilty. These matters were known to the judge but it now seems plain that the appellant is an ill man and that he cannot pay a fine of 2,000 and his sons are unable and unwilling to help him. This Court has said in the case of R v Lewis [1965] Crim LR 123, which was decided not very long ago, that a fine…. should be within an offender’s capacity to pay. 2,000 is far beyond the capacity of the appellant to pay and we think justice will be met by altering the fine to one of 100.”

In the case of R v Wright [1977] Crim LR 236 which was concerned with an order for payment of prosecution costs, it is there stated as a principle of general application that:

“It was a correct principle that financial obligations should be matched to “ability to pay.”

In view of Rollo’s case cited by counsel and the other authorities I have referred to, I accept that the means of a defendant who has been convicted of an offence is an important factor to be taken into consideration in fixing the amount of a fine to be imposed. The fine, of course, should not be beyond the defendant’s capacity to pay.

The only material that was placed before this Court by counsel for the appellants to show the means of the respective appellants were their pre-sentencing probation reports. These probation reports show that the appellants Faioso Matuavao Sovita (19 years), Naseri Tuimalatu (20 years), Fuiavailili Samuelu (39 years) and Malagaoma Vaitealagi Maea (37 years) are all unemployed and have no savings. The appellants Fuiavailili Samuelu (5 children) and Malagaoma Vaitealagi Maea (3 children) have also to provide for their children.

As for the appellants Tuimaseve Siolo Esau (45 years), Iosefa Falelua (28 years), Simi Matuavao Sovita (17 years), Liaita Selesele Panapa (27 years), Tauese Matuavao Fiti (19 years), Foimai Ula (45 years) and Pou Tuimalatu (19 years) they are all planters with no savings. Their plantations are for their daily subsistence. The appellants Tuimaseve Siolo Esau (2 children), Iosefa Falelua (1 child) and Liaita Selesele Panapa (1 child) also have to provide for the maintenance of their children.

The appellants who are employed and are paid wages are Sulimata Pulepule (41 years) who earns $150 per week as a mechanic, Asueru Kome (26 years) who earns $110 per week as a labourer, Usoalii Ah Sam (27 years) who earns $110 per fortnight as a labourer, Talavou Matuavao Pute (21 years) who earns $115 per week as a seaman and Kome Matuavao Pute (33 years) who earns $110 per fortnight as a labourer. The appellants Sulimata Pulepule (4 children), Asueru Kome (3 children), Kome Matuavao Pute (6 children) and Talavou Matuavao Pute (1 child) also have to provide for the maintenance of their children. All of these appellants have no savings.

The appellant Kelesi Vaa Saena (25 years) is said to work as a mechanic. But there is no evidence whether he is paid any wages. I take the view that he must be paid some wages.

It was also submitted by both counsel for the appellants that His Honour the trial Judge did not give sufficient weight to the fact that when a village council gives an order, the aumaga of the village which comprises of the untitled men, like the present appellants, are bound to carry it out as a matter of customary duty and allegiance to the authority of the village council. It is almost inconceivable in our Samoan society for the aumaga of a village not to execute an order given by the village council. I have also noticed from the evidence that was before the trial Court that the fathers of some of the appellants were also members of the village council of Salamumu at the material time. Mr Eti also submitted that the penalty for a member of the aumaga who refuses to carry out an order of the village council would be banishment from the village and that is a serious deterrence on all members of the aumaga not to act in accordance with an order given by the village council. Whilst there may be substance in this submission, there is no evidence that any of the appellants acted out of fear of being banished from the village if he did not do so. The evidence shows that the appellants acted more out of a sense of customary duty and allegiance to the authority of the village council.

Mr Enari further submitted that the trial Judge also did not give sufficient credit to the element of provocation in that after the village council gave its ultimatum about the deadline for Levao Lamese and members of his group to leave the village, they became more defiant in their attitude and activities. I have decided not to attach any weight to this submission. It is clear from the evidence that after the village council gave its ultimatum nothing less than Levao Lamese and his family leaving the village would stop the village from forcibly removing them and destroying their properties. The continuing defiant attitude and activities by Levao Lamese and his family after the ultimatum was given by the village, were insignificant when viewed against the background of events that had occurred before. The constitutional freedom of religion must also be borne in mind.

For the respondent, counsel submitted that the fines imposed in this case are within the range of penalties imposed for convictions of arson by the Magistrates Court and its present successor the District Court in the last seven years. A memorandum was produced which shows that these penalties range from fines of $200 and $1000 to imprisonment terms of 3 months and 18 months. In the Lona-Fagaloa case (1993) which had a number of features similar to the present case, penalties of 350 hours of community service plus 2 years probation, fines of $300 plus 75 hours of community service, fines of $500 plus 100 hours community service, and a term of imprisonment for one year were imposed.

Counsel for the respondent also submitted that the fines imposed on the appellant fairly reflect the particular circumstances of the offending, in particular, the degree of responsibility and the impact of the offending upon Levao Lamese and his family. The gravity of the offending is of course a relevant factor for sentencing purposes. But where the Court is mindful of imposing a fine on an offender, the means of the offender is very much a relevant and important consideration.

After careful consideration of the facts, the relevant legal principles and the submissions by counsel, I have decided to substitute the following sentences for those passed by the trial Court:

(a) 	The appellants Sulimata Pulepule, Asueru Kome, Talavou Matuavao Pute, Kome Matuavao Pute and Kelesi Vaa Saena are each fined $200 for arson and ordered to perform 150 hours of community service as directed by the probation service. The appellant Usoalii Ah Sam is fined $150 for arson and $50 for assault and ordered to perform 150 hours of community service, as directed by the probation service. These are the six appellants who are employed.

(b) 	The appellants Faioso Matuavao Sovita, Naseri tuimalatu, Fuiavailili Samuelu, Malagaoma Vaitealagi Maea, Tuimaseve Siolo Esau, Iosefa Falelua, Simi Matuavao Sovita, Liaita Selesele Panapa, Tauese Matuavao Fiti, Fomai Ula and Pou Tuimalatu are each sentenced for arson to perform 400 hours of community service, as directed by the probation service. The appellant Tuimaseve Siolo Esau is also sentenced for assault to perform 50 hours of community service cumulative.

These appellants are the planters and the unemployed.

I come now to the second ground of appeal, namely, that the compensation orders of $1,000 should not have been made, or, if they should have been made the amounts ordered to be paid are excessive.

The principal submission made by Mr Enari in this regard is that the compensation orders are beyond the means of the appellants to pay. He further submitted that compensation orders are generally appropriate in clear and simple cases where the amount at stake is not great. It was also pointed out that there was no evidence as to the value of the properties that were destroyed. In support of these submissions counsel relied on two New Zealand cases: Police v Steadman [1975] 2 NZLR 485 and R v Rollo [1981] 2 NZLR 667.

In R v Rollo [1981] 2 NZLR 667 Somers J in delivering the judgment of the New Zealand Court of Appeal said at p. 671:

“The power to direct payment of compensation under s. 403 [of the Crimes Act 1961] or to impose a condition as to payment of a sum of money as a term of probation under 58(1)(b) of the Criminal Justice Act [1954] is undoubtedly a useful one and its effect will often be salutary. But difficulties will often arise in practice. Thus where compensation is to be paid it must be shown that the loss or damage to be compensated in fact occurred. That will often involve evidence as to the value of property lost or damaged or as to the amount stolen, see Police v Steadman [1975] 2 NZLR 485, or even as to the title of the payee. The power should not be used where there is a doubt as to the liability to compensate: see R v Inwood (1974) 60 Cr App R 70 (a case useful on other aspects of such orders). It is to be borne in mind that the civil liability of the convicted person is not extinguished.

There are other aspects which must be borne in mind. The United Kingdom enactment - the Powers of Criminal Courts Act 1973 - expressly requires that in deciding whether to make a compensation order and the amount of any such order the Court is to have regard to the means of the offender so for as they are known. That consideration is not expressed in the statutory provisions in New Zealand but it does not follow that means are not material. Parliament could hardly have contemplated the making of orders which are not realistic, that is to say, in cases where there can be no real expectation that the sum ordered to be paid will in fact be paid. The absence of present means would not itself inhibit the making of a short term order by instalments by persons who have existing or immediate expectation of employment. But orders to pay large sums in compensation over a long period are not suitable. In many cases they will be quite ineffective and in others may merely provoke further crime. Nor is it appropriate to direct payments to be made following a sentence of imprisonment of reasonable length by those who have no means with which to meet them.

In the present case there is nothing to indicate that the appellant had any present or prospective ability to pay the sum of $2600 and the case was one in which it was appropriate to leave the complainant to its civil remedies.”

Section 403 of the Crimes Act 1961 (NZ) to which Somers J was referring is identical to section 165 of the Samoan Criminal Procedure Act 1972. In my view the comments by Somers J are relevant to compensation orders made under section 165.

In the case of Police v Steadman [1975] 2 NZLR 485 the then New Zealand Supreme Court applied the relevant English authorities at the time on compensation orders. In one of those authorities, namely, R v Kneeshaw [1975] All ER 896 Lord Widgery CJ in delivering the judgment of the Court said:

“It has been stressed in this Court more than once recently that the machinery of a compensation order under the Act of 1972 is intended for clear and simple cases. It must always be remembered that the civil rights of the victim remain. In a great majority of cases the appropriate Court to deal with the issues raised by matters of this kind is in the appropriate civil proceedings. A compensation order made by the Court of trial can be extremely beneficial as long as it is confined to simple, straightforward cases and generally cases where no great amount is at stake.”

In R v Inwood (1974) 60 Cr App R 70 Scarman LJ said at p. 73 in relation to compensation orders:

“Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties of crime. Compensation orders were introduced into our law as a convenient and rapid means which would enable the compensation to be paid. One has to hear in mind that there is always the possibility of a victim taking civil proceedings, if he be so advised. Compensation orders should certainly not be used when there is any doubt as to the liability to compensate, nor should they be used where there is a real doubt as to whether the convicted man can find the compensation.”

I have already referred to the means and employment status of the appellants; four are unemployed, seven are planters with plantations for their daily subsistence, five are employed and are paid wages, and one is employed but there is no evidence whether he receives any remuneration. Some of them have children to provide for. None of them has any savings.

In respect of the appellants without employment, no evidence was placed before the Court as to their prospects of gaining employment in the near future. However, I have real doubt in that regard given these appellants’ educational backgrounds as shown from their pre-sentencing probation reports and what was seen in Apia in the recent past where so many people were queuing up for a few job opportunities that were offered from New Zealand and American Samoa.

I have given overall consideration to the means of the appellants. Even though five of them have paid employment their wages are comparatively small and some of them have children to provide for. These are also the same appellants who have been ordered to pay some fines.

The victim still has his rights to bring civil proceedings. It may be a more realistic and effective way of obtaining satisfactory compensation to focus on the village rather than on each offender individually. After all it appears from the evidence that what happened in this case was the collective responsibility of the village including the Alii and Faipule.

All in all then, the appeals are allowed. The compensation orders are set aside and the sentences to be imposed are as set out in this judgment.

CHIEF JUSTICE

Solicitors
Kruse, Enari & Barlow for the first eight named appellants
T V Eti for the last nine named appellants
Attorney General’s Office for respondent.