Deputy P.M. convicted, Associate discharged without conviction

Deputy Prime Minister, Fonotoe Pierre Lauofo, was “throwing his weight around” when he encouraged an Associate Minister to disregard police and leave a traffic stop.

That was the verdict from District Court judge, His Honour Vaepule Vaemoa Va’ai yesterday, when he convicted Fonotoe and ordered him to pay $200 for police costs.

“His attitude was seemingly one of throwing his weight around in a display of the status of the political office he held,” Judge Vaepule said during sentencing.

Fonotoe took the verdict calmly, with Associate Minister, Muagututagata Peter Ah Him, standing close by.

Both men had pleaded not guilty to obstructing police from carrying out their duties, following a “heated” argument on the night of 4th October last year.

Muagututagata faced a charge of making an illegal u-turn in Apia, which caused police to stop and conduct a breath test.

Yesterday, His Honour Judge Vaepule discharged Muagututagata wi thout conviction, ordering him to pay $250 for court costs, despite describing his actions as “inexcusable.” He focused most of his criticism on Fonotoe, quoting police statements that he appeared “arrogant” on the night, leaving police “stunned and professionally deflated.”

Family, friends and village supporters packed out the Courtroom yesterday. Some were asked by police to stay outside because all the seats were fully occupied.

After the verdict, at a separate event, Fonotoe said he was glad the case was finally finished.

“It’s over,” he said.

“It’s time to move forward. There is a lot of work to be done with the S.I.D.S. (Small Islands Developing States) conference ahead of us.”

He then thanked the Police for not dodging the law and pushing forward with the charges.

Muagututagata left the Court directly after the sentence was read.

Later in the day yesterday, while taking a break from a United Nations presentation on corruption laws, Muagututagata told Samoa Observer he was “happy”about theJudge’s decision.

But he expressed his disappointment in the way the matter ended up in court.

“A u-turn’s penalty is $50 under the law,” he explained.

“I would’ve thought the senior officers who have conscience would’ve written me a ticket because I didn’t intentionally do the u-turn.

“There are no signs there to tell people you can’t do that there. I even saw other people and a police officer doing a U-turn there last week.”

Muagutu said it was unfortunate the matter ended up in the Court.

As for obstructing police, he said “the police claim their work was interfered with.

But everyone has their own view on it…it was a very trivial thing to me.”

The full sentence is published below:

IN THE DISTRICT COURT OF SAMOA HELD AT MULINU’U BETWEEN POLICE Informant A N D FONOTOE PIERRE MEREDITH of Vaoala, and MUAGUTUTAGATA PETER AH HIM of Leififi Defendants Counsel: Ms R. Titi-Reti for informant Mr P Fepulea’i for Ah Him Mr D Kerslake for Meredith __________________________________ SENTENCE OF THE COURT (DELIVERED

ON 15/5/2014)

________________________________ Background

Muagututagata Peter Ah Him appears for sentence for making an illegal U-Turn in front of the SNPF Plaza and of wilfully obstructing Constable Ioapo Isistolo. Fonotoe Pierre Meredith has also been found guilty of encouraging Ah Him to obstruct Constable Ioapo Isistolo. The charges arose from an incident which occurred on Friday night the 4th of October 2013, the facts of which are provided in the court’s decision of the 14th of April 2014. The maximum penalty for obstructing a police officer in the execution of his duty is imprisonment for up to a year or a fine of $200.00.

Muagututagata Peter Ah Him (a) Making a U-turn.

The first special circumstance submitted on Mr Ah Him’s behalf is he is an Associate Minister in the government. In such capacity he has suffered enough and ought not to be penalised further by entering a conviction because he has been personally shamed from the ordeal of sitting out a two day trial and the publicity the trial attracted. This in the court’s view is a circumstance which is not special to Mr Ah Him because the media attention the case attracted is normal as experienced often in circumstances where a defendant such as Ah Him holds public office.

This is premised on the notion that holders of public office are not only expected to conduct themselves in a manner reflecting the status of the offices they hold but also in accordance with the law. Counsel also submitted that a conviction would in addition also create difficulties in Ah Him’s ability to freely travel outside of the country.

Mr Fepulea’i submitted that in the circumstances of Ah Him’s offending, he ought to be discharged without conviction on this charge under Section 104 (1)(b) of the Criminal Procedure Act 1972. The real question is whether a conviction would of itself be a hardship out of proportion to the circumstances of the offending.

First, Mr Fepulea’i submitted that Ah Him could not know it was an offence to make a U-Turn where he did because there are no traffic signs to inform drivers it was an offence to do so. While Mr Fepulea’i correctly conceded that ignorance of the law is not an excuse, he further submitted it is still reasonable to infer from the circumstances that Ah Him, had he known he was committing an offence would not have made the U- Turn in clear view of the police patrol car at the scene. Second, the evidence does not show he was culpable or that any vehicles or pedestrians were endangered by the U-Turn.

Finally, the maximum fine of $50.00 is an indication the offence, compared to the penalty for other traffic offences is not serious.

It was therefore submitted that under the specific circumstances of the offending, the consequences of a conviction would be disproportionate to its gravity.

For my part, the fact that Ah Him duly complied with the police instructions when he was ordered to pull over and breath-tested also form an integral part of the whole circumstances the Court must consider in assessing the proportionality of the consequences of a conviction to the gravity of his offending.

I accept the application on the basis the consequences are out of proportion to the gravity of this offending. Accordingly Ah Him is discharged without a conviction against him under this charge but ordered to pay $50.00 court costs.

(b) Obstruction of Constable Isitolo. Mr Fepulea’i also submitted discharging Ah Him on this charge without a conviction. The question again is whether a conviction would of itself be a hardship out of proportion to the circumstances of the offending. In this regard, it is necessary to consider the gravity of Ah Him’s offending, the consequences of a conviction against him and whether the consequences of a conviction are indeed out of proportion to the gravity of his offending.

The relevant circumstances of Ah Him’s offending are as follows. Ah Him was pulled over by the police for making an illegal U-Turn. After he was stopped, he was breath-tested several times by Constable Isitolo.

The results of the first three tests were not successful and Ah Him was about to be tested a fourth time when the Deputy Prime Minister arrived and argued with Senior Constable Maanaima Patu.

The argument unsettled Constable Isitolo in such a way that he could no longer concentrate on the tests he had been conducting on Ah Him. Despite the fact Ah Him was warned after the third test that he could be arrested, he was neither arrested nor charged for failing to comply with the testing requirements at the time he left and similarly when the police officers again saw him with Meredith heading into the Marina Bars the same night.

According to the Victim Impact Report submitted by the prosecution, Constable Isitolo still finds the experience he went through on the night in question hard to fathom or forget. He felt demeaned and trodden upon. He still remembers standing stunned as he stared helplessly at the two government vehicles driving away.

He feels someway responsible for criticisms leveled at the police for inconsistent treatment of people charged with obstructing police officers.

Some are charged on the spot and often placed in custody while others equally culpable of such offending are let go as happened here.

Obstructing Constable Isitolo in the execution of his duty was inexcusable, be it by a holder of a public office or not. In the specific circumstances of this charge however what developed when the deputy Prime Minister intervened is why Ah Him felt he could leave at the time he did.

In my view, it is reasonable to infer from what happened that the likelihood of Ah Him leaving the scene when he did was almost nil but for the intervening factors which arose. The gravity of his offending as I see it is towards the low end of the scale.

In the specific circumstances of Ah Him’s offending under this charge, the consequences of a conviction against him would in my opinion be out of proportion to the gravity of his offending.

In the circumstances under which he was found guilty on this charge, he is also discharged without conviction for obstructing Constable Isitolo in the execution of his duty but ordered to pay prosecution costs in the sum of $200.00. The total sum ordered of $250.00 is to be paid forthwith, in default, 10 days imprisonment.

Fonotoe Pierre Meredith The circumstances of Meredith’s offending are these. He was driving towards Mulinuu on Beach road after 10.00pm on Friday the 4th of October 2013. Having passed the road hump in front of the RSA Club, he saw government vehicle MCIL 07 standing near the footpath facing east, with police officers standing next to it.

He drove slightly further west, turned around to drive back east and pulled up his vehicle alongside MCIL 07. He asked the officers present what they were doing, to which Constable Isitolo responded he was testing the driver (Ah Him) for alcohol. Senior Constable Maanaima Patu who joined the other officers when Meredith arrived ended up arguing with him.

The argument became heated with voices raised. Towards the end of this verbal exchange the officers heard Meredith call Ah Him to drive away.

Meredith said he asked the officers to let Ah Him go if there was nothing further. Either way he has been found guilty of encouraging Ah Him to drive away which in the process obstructed Constable Isitolo whose breathtesting of Ah Him had not been completed.

Mr Kerslake submitted that in the circumstances of Mr Meredith’s offending, he ought to be discharged without conviction under Section 104 (1)(b) of the Criminal Procedure Act 1972.

The question again is whether a conviction would of itself be a hardship out of proportion to the circumstances of the offending, having regard to the special circumstances pertaining to the offender.

It is essential to consider the gravity of the offending first; the consequences of a conviction second; and finally whether the consequences are out of all proportion to the gravity of the offending.

With regard to the gravity of Mr Meredith’s offending, counsel submitted that the charge in view of the statutory penalty is not a serious one.

That may be right but in my view misses the point because the role the public has entrusted on the police is to enforce the law irrespective of the penalty.

Gravity of the offending for the purposes of counsel’s application refers to the circumstances of the obstruction Mr Meredith has been found guilty of rather than the statutory penalty of the charge he is guilty of.

It was further submitted that the “gravity of the offending was very minimal” because there was no violence and therefore less serious had there been physical contact. The maximum penalty being the same for direct and indirect obstruction of a police officer is a clear enough indication for the Court when it imposes sentence on this charge to do so based only on the particular circumstances of each case instead of whether the obstruction was direct or indirect.

It was also argued that because Meredith is the deputy Prime Minister and a lawmaker, there may be a public perception that a higher standard of compliance must be applied for a breach of the public’s trust in him, having been found guilty by the Court.

A public perception as described whether real or imagined is irrelevant because the argument confuses the degree of responsibility the public expect from holders of public office and the standard of conduct befitting the status of the office one holds, with the standard by which guilt of an accused and/or an appropriate sentence is determined.

Determining guilt for an offence and likewise an appropriate sentence for such an offence bears little relevance to whether a person holds public office or not.

Reference has been made already to the report from Constable Isitolo of the personal and professional impact on him as a police officer of the offending by both defendants. The tone of Mr Meredith’s voice when he intervened according to Constable Isitolo was arrogant.

His attitude was seemingly one of throwing his weight around in a display of the status of the political office he held.

The impression Senior Constable Patu gave of the Deputy Prime Minister’s conduct on the night was similar to the sentiments of his junior colleague. In his victim impact report he says that Mr Meredith showed a lack of respect for the police in their law enforcement role. Senior Constable Patu also says that he has also been accused internally and publicly of not doing his job correctly on the night in question. He may have been disciplined for leaking the incident to the media but that has no bearing on Mr Meredith’s conduct on the night of 4th October 2013, the way S/C Patu performed his duties as a police officer and the charge against Meredith which followed albeit some three months later. It is clear from the police officers on duty that night that Meredith’s conduct when he intervened was neither called for nor tolerated by any officer especially S/C Patu.

Neither Senior Constable Patu nor Constable Isitolo mentions an apology having been made by Meredith to either of them, as victims of Mr Meredith’s offending. There is no mention either from any senior police officer of an apology having been made to the department after the incident.

By way of mitigation, it was submitted that Mr Meredith, like his colleague Mr Ah Him has similarly been embarrassed from the wide publicity in the media of his involvement in the incident. Counsel also sought recognition of the defendant’s untarnished character as a senior member of the local Bar, the fact he is a first offender, his remorse and has also made a public apology on television.

It was further submitted that the consequences of a conviction on the defendant would jeopardise not only his international political reputation but also his ability to travel overseas and his local reputation and ability to serve as one of the leaders of the country.

A conviction will also impact his ability to practice as a Barrister and Solicitor of the Samoan Bar and may also jeopardise possible judicial appointment in future. He and his family have as a result of his actions suffered embarrassment.

After careful consideration I have come to the view that the consequences of a conviction under the circumstances is not at all out of proportion to the gravity of Mr Meredith’s offending.

Firstly, Mr Meredith was not invited by any party to join when he stopped where the police were breath testing Ah Him. Nor was his help as a Solicitor sought by Ah Him in the form of legal advice. The already described and discussed manner in which he interfered with the police work under the circumstances was also uncalled for. He did this knowing (or he ought to have known) the consequences he now claims of a conviction against him are out of proportion to the gravity of his offending.

Secondly, the real victims of the Mr Meredith’s offending were the police constables who were on duty. They were left stunned and professionally deflated after the two parliamentarians left. Neither of the officers affected has since received an apology (formal or otherwise) from Mr Meredith to convey his remorse. Furthermore, I fail to see the relevance or significance of the public apology he apparently made, because the conduct he was found guilty of was not directly against the public he apologised to but against the police officers whom he has not.

Finally, Ah Him who complied with everything the police asked of him except perhaps breathing correctly into the breathalyser machine would probably not have left the scene when he did, without Mr Meredith’s intervention. The different degrees of culpability ascribed to the two parliamentarians as shown by the evidence directly reflect on the gravity of their respective offending. In my opinion, the consequences of a conviction are not out of all proportion to the gravity of Mr Meredith’s offending in the circumstances of the charge he has been found guilty of.

He is convicted and ordered to pay $200.00 police costs. That is to be paid forthwith, in default 10 days imprisonment. Vaepule Vaemoa Va’ai - DCJ