Supreme Court denies application

By Joyetter Luamanu 02 February 2018, 12:00AM

Supreme Court Justice Tafaoimalo Leilani Tuala-Warren has denied the application for a stay of a jail sentence against a village chief convicted of falsifying a certificate to register a matai title.

The decision on the application by Fofogamua Hawai’i Lavea was delivered yesterday. 

The defendant was convicted of falsifying a certificate to register a matai title and had since filed an appeal with the Court, arguing that the trial Judge “erred in fact and in law”. 

Fofogamua is represented by lawyer, Tauiliili Harry Schuster, who filed an application for a stay in the execution of sentencing until the appeal is determined.

A hearing was held last week where Tauili’ili asked the Court to grant the appellant leave to appeal his conviction on the charge of forgery and using false document. 

The grounds of the motion are that “the trial judge erred in fact and in law; it is in the interest of justice and the defendant has the right of appeal under the criminal procedures Act.” 

Prosecuting the case is Lucy Maria Sio of the Attorney General’s Office, who opposed the application. 

In her decision, Justice Tafaoimalo noted that considering the interests of justice under subsection, the Court or appellate Court may, instead of the considerations in section 99, take into account the apparent strength of the grounds of appeal; the length of the sentence that has been imposed on the appellant; the likely length of time that will pass before the appeal is heard and any other consideration that the Court considers relevant.” 

Justice Tafaoimalo stated the strength of the Grounds of Appeal was taken into account in determining the interests of justice.

“It is submitted by the Appellant that he has strong grounds for his appeal against conviction. 

“He submits that one of the vital issues in the appeal relates to the jurisdiction of the Supreme Court and the Lands and Titles Court. 

“The question he raises is whether the Supreme Court ventured into matters that only the Lands and Titles Court is authorised to deal with.

“Prosecution submits that the grounds advanced by the appellant are insubstantial and lack substance. 

“The evidence adduced during the trial was sufficient to support a conviction. 

“It is further submitted that the appellant not only misled members of his family, his village and the LTC, he misled the Registrar who proceeded on the basis of the false certificate to advertise the bestowment.

“It is neither necessary, nor appropriate for me to attempt an extensive analysis of the merit of the appeal. 

“Nor can that be done on the material before me now. The starting point is that the Court has found the appellant guilty as charged. 

“The onus is then on the appellant to satisfy the Court of the strength of the appeal amongst other considerations. 

“I am not satisfied on the material for the appeal before me now that any strength of the grounds of appeal has been identified.

“Therefore I am not convinced that this consideration is in favour of the appellant.” 

According to Justice Tafaoimalo the appellant submits that the sentence imposed is quite severe for this type of offending involving a matter arising out of the Lands and Titles Court where a defendant charged with forgery of a matai confirmation document was convicted and discharged.

“The Prosecution submits that the crimes of forgery and false documents are of a serious nature, with a prescribed maximum penalty of 10 years and 7 years imprisonment respectively.

“There is a high probability of imprisonment sentences given the current sentencing policy of the Court in cases of forgery and false documents. 

“It is further submitted that the Learned Judge did not err in law in adopting a starting point of three years imprisonment for the charge of forgery and that the sentence of 18 months imprisonment was not manifestly excessive.

“Again in relation to the length of sentence imposed, the Court was not provided with any other comparative cases. 

“However it was made clear by Counsel for the appellant that the appellant is not appealing the sentence provided it is based on law and ultimately the appeal. 

“This means that the length of sentence imposed is not a pertinent consideration at this point, and for all intents and purposes of this bail hearing, the length of sentence imposed is not excessive.” 

Justice Tafaoimalo indicated the next sitting of the Court of Appeal is in the week commencing 8 April 2018, which is in 2 months’ time. 

The Supreme Court Justice further noted the fact that the appellant is a skilled orator is not a relevant consideration which carries much weight. 

“At most it is unfortunate that such a skilled orator for a paramount family has been imprisoned. 

“However, it is not as weighty a consideration as would be the effect on his immediate family, of which there is no submission before the Court. 

“The fact that his last conviction was in 1994, which is over 20 years ago, is of limited benefit to the appellant. 

“I am proceeding today on the basis that he was convicted of two offences in 2017.”

Justice Tafaoimalo says there being no considerations in favour of the application, and there being no exceptional circumstances in the application before here. 

“I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant bail to the appellant pending appeal.

“The application for stay of sentence and bail pending sentence is therefore denied.”

By Joyetter Luamanu 02 February 2018, 12:00AM

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