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Police v Taiulu [2007] WSSC 50 (28 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TIARANEI TAIULU
male of Vaitele-uta and Sa’asa’ai Savai’i.
Accused

Counsel: M T Lui for prosecution
Accused in person

Sentence: 28 June 2007

Sapolu, CJ

SENTENCE

The charges

The accused appears for sentence on three charges under the Crimes Ordinance 1961. These are one of robbery under s.82 which carries a maximum penalty of ten years imprisonment, one of conversion of a vehicle under s.91 which carries a maximum penalty of five years imprisonment, and one of wilful damage under s.113 (3) which carries a maximum penalty of three years imprisonment. The accused pleaded guilty to the charges at the earliest opportunity.

The offending

The victim who is a 34 year old married man from the village of Vaitele-fou works at the Fire Service as a fireman. During the weekends he drives his taxi to supplement his income. When driving his taxi at night, it was usual for the victim to park his taxi somewhere to get some sleep before driving around again. Between 12am and 2am in the early hours of Sunday morning, 4 March 2007, the victim who had been driving his taxi stopped in front of a store at Vaitele-tai to rest and get some sleep. This is the store where the victim and his wife used to shop. The victim was awakened by three men who had gotten into his taxi. As it appears from the summary of facts which was confirmed by the accused, these were the accused, his brother Tasele, and a friend. The accused and his brother sat at the back seat while their friend sat in the front passenger seat beside the victim.

As it further appears from the summary of facts, the accused’s friend then told the victim to drive them to Vaitele-uta to drop off the accused and his brother. The victim drove his taxi and was directed by the accused’s friend to an isolated and bushy dirt road. When the taxi stopped at the dirt road, the victim was punched by the accused’s friend who then got out, came around to the driver’s door, opened the door, dragged out the victim, and then beat him up. While the victim was being beaten up, the accused’s brother went over and removed the vitim’s wallet which contained about $40 tala from his pocket. The accused did not take any part in the actions by his friend or his brother.

After the victim was punched and kicked repeatedly, the victim pretended to be dead or unconscious. The accused and his brother then picked up the victim and put him at the backseat of the taxi. The accused’s friend then got into the driver’s seat and drove off with the accused sitting in the front passenger seat and the accused’s brother sitting on the victim at the back seat. The three men then drove to Se’ese’e to the house of the accused’s sister after which they drove to a gas station at Fasito’o-uta, which is quite a long way, to buy some beer. When they got to the gas station at Fasito’o-uta it was locked as it was around 3am to 4:30am. The victim who was pretending to be dead or unconscious at the back seat realized that they were now at the gast station at Fasito’o-uta. He therefore jumped out and ran for help to the gas station security.

The accused, his brother, and his friend then drove away and returned to where the victim had been beaten up. It was there that they damaged and abandoned the taxi. According to the summary of facts, the front interior rear view mirror was broken off and the entire dashboard cover was peeled off. The front ashtray, the car wrench, the car jack, the overhead taxi sign and the number plate were also all removed.

As it appears from the pre-sentence report, the accused told the probation service that on the night in question he, his brother and their friend were drinking beer and spirits at the Yazaki reservation park at Vaitele-tai from 8pm to the early hours of the morning. They then walked along the main road at Vaitele-tai when they came across the victim who was sleeping in his taxi in front of a store. They got a ride in the taxi until they got to where the driver of the taxi was beaten up.

The victim

As mentioned earlier, the victim is a 34 year old married man from Vaitele-fou. He works as a fireman with the Fire Service. During weekends he drives his taxi to supplement his income.

As it appears from the victim impact report, as a result of the assault on the victim he sustained swelling and bruising on his left upper eye lid which affected his vision and did not heal properly for about three weeks. The victim also sustained swelling in his right cheek as a result of which he could not chew on the right side of his mouth for sometime. The victim also sustained bruises on his left shoulder. All of these injuries caused the victim much pain.

The victim has also sustained psychological harm. As a result of this incident the victim does not drive his taxi at night anymore. He is also cautious about where he parks his taxi at Vaitele-fou at where he lives as he is scared that any of the men who assaulted him and took his car might recognise his car and do something to him and his family.

The victim has also suffered financially. He has had to pay the costs of the damage done to his car.

The accused

The accused is a 21 year old male from Vaitele-tai. He is single and unemployed. He resides with his mother and two siblings, one of whom is a disabled sister, at Vaitele-tai. According to the pre-sentence report, the accused had a low level of education having left school at Year 9. He has also had a somewhat unstable upbringing. His father died in 1996 when he was about 10 years old. The accused’s mother then married a man from Satitoa, Aleipata, and he lived at Satitoa for some time. He now lives with his mother, a brother, and a handicapped sister at Vaitele-tai. The family relies for their living on remittances from the accused’s brother who lives in American Samoa.

The accused has previous convictions, one for throwing stones and one for drunkenness at a public place.

Aggravating features

The aggravating features of this case are the vulnerable position of the victim as a night-time taxi-driver, the severe beating that was inflicted on him, as well as the physical, psychological and financial consequences of the offending on the victim.

Mitigating features

The accused’s plea of guilty at the earliest opportunity is the only mitigating feature in this case.

The decision

This is a serious case. It involved the conversion of a taxi, the severe beating inflicted on the taxi-driver, the stealing of his wallet which contained about $40, and the wilful damage that was done to the victim’s taxi.

In my view, this case requires special and general deterrence. Special deterrence is required to discourage the accused from committing this type of offending again. General deterrence is required to discourage others who might be tempted to commit this type of offending. The need for the law to protect the safety of taxi-drivers from those who are tempted to assault them, steal their earnings from passenger fares, and convert their vehicles must be beyond doubt.

As there were three persons involved in the present offending, an important factor to be taken into consideration for the purpose of sentencing is the accused’s degree of involvement in the offending. In respect of the charge of conversion of a vehicle, it is clear from the summary of facts that the accused did not have actual participation in the assault carried out by his friend on the victim even though he was present. However, the accused got into the taxi at Vaitele-tai with his brother and his friend and were driven to an isolated and bushy dirt road where the victim was assaulted by the accused’s friend and robbed by the accused’s brother. The accused with his brother and friend then drove in the victim’s taxi, with the accused lying in the backseat pretending to be unconscious, to the house of the accused’s sister at Se’ese’e, then to the gas station at Fasito’o-uta, and then back to where the victim had been assaulted. The driving around in the victim’s taxi by the accused, his brother and his friend constituted conversion of the victim’s taxi. It is clear that the accused was a willing party and actually participated in the conversion of the victim’s taxi.

In respect of the charge of robbery, it is also clear from the summary of facts that the accused did not have actual participation in the removal of the victim’s wallet from his pocket. It was the accused’s brother who did that. However, it appears from what the accused told the probation service that all three shared in the $40 that was in the wallet. The accused is not being charged with robbery in relation to the car wrench and the car jack said to have been removed.

In respect of the charge of wilful damage, the summary of facts states that the accused, his brother and his friend damaged the victim’s taxi and then abandoned it. The front interior rear view mirror was broken off and the entire dashboard cover was peeled off. The front ashtray, the overhead taxi sign and the number plate were also removed.

In determining the sentences to be imposed, I take into account the need for special and general deterrence in this type of case, the gravity of the total offending, the accused’s degree of involvement, the vulnerable position of the victim as a night-time taxi-driver, the fact that as a consequence of this offending the accused does not drive his taxi at night anymore, the financial costs incurred by the victim because of the damage to his car, and the accused’s plea of guilty at the earliest opportunity. The maximum penalties provided for each of the offences with which the accused is charged must also be borne in mind.

In the circumstances insofar as they relate to this accused, I take as starting points for sentencing 12 months for robbery, 2 years for conversion of a vehicle, and 9 months for wilful damage. I give the accused a 1/3 discount for his plea of guilty. That leaves 8 months for robbery, 16 months for conversion of a vehicle, and 6 months for wilful damage. The accused is therefore sentenced to 8 months imprisonment on the charge of robbery, 16 months imprisonment on the charge of conversion of a vehicle, and 6 months imprisonment on the charge of wilful damage. These sentences are to be cumulative so that the accused will serve a total of 30 months or 2½ years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution