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Police v Too [2008] WSSC 57 (1 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SAMAU TOO
male of Matatufu Lotofaga.
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Titi for prosecution
Mr S Leung Wai for defendant

Sentencing Date: 01 August 2008

SENTENCE BY JUSTICE VAAI

Defendant I want to say this at the beginning of your sentence that if you had stayed at Matatufu Lotofaga and not accompanied the co-accused to Apia you would never had landed in this court. The accused is 25 years of age of Matatufu Lotofaga appears for sentence charged with being a party to the crime of robbery which carries a maximum penalty of 10 years imprisonment. The principal offender (co-accused) has been sentenced to 2 years and 6 months imprisonment for this offence. The prosecution counsel has filed a sentencing memorandum asking the court to send you to imprisonment for a period of at least 1 ½ years.

On White Sunday, 14th October 2007 the accused was visited by the co-accused Ioane Saveaalii at Matatufu Lotofaga. The co-accused who was then living with and employed by the victim at Afiamalu urged the accused to come with him to Apia to get employment. On Tuesday the 16th October 2007 the accused accompanied the co-accused to Apia and went to the victim’s house at Afiamalu. The accused’s request to the victim through the co-accused for work was declined. Neither the accused nor the co-accused had any cash on them and the accused needed to return to his village of Matatufu Lotofaga.

The victim had retired to his room to rest and the co-accused helped himself to the victim’s alcohol and became intoxicated. The co-accused was known to the victim to become violent and aggressive when under the influence of alcohol. The co-accused then suggested to the accused that they should threaten the victim to give them money. They agreed and the co-accused proceeded to cut-of the telephone lines whilst the accused flattened the victim’s car tyres as directed by the co-accused. The co-accused also assisted the accused in flattening the victim’s car tyres.

They then proceeded to the victim’s bedroom. The accused was armed with a machete whilst the co-accused was holding a bread knife. The accused followed the co-accused into the bedroom. The co-accused then demanded money from the victim who was lying in bed. When the victim tried to stand up the co-accused grabbed the victim by the waist of his shorts. The victim gave the co-accused his wallet with about $100 cash in it.

The accused who was standing behind the co-accused held the machete to his chest and started to back out of the room and stood by the door way. When the victim pleaded with the accused to disarm the co-accused, the accused told the victim to get back inside the room. Other than what he said to the victim the accused did not threaten or show any aggressiveness towards the victim. Indeed the victim told the court that:

"the accused was holding it (the machete) against his chest but he did not threaten me ... ." I think by this stage he was sort of starting to regret how wrong he was, but he did not do anything at any stage to stop Ioane."

I now deal with the aggravating factors of this case. The first factor is one of premeditation. Both the accused and the co-accused wanted money to pay for travel expenses and personal needs. They agreed on a plan to take money by force from the victim. The second aggravating factor is one of the home invasion. The victim was quite entitled to feel safe and secured in his own home. The offending by the accused and the co-accused took away the victim’s comfort, sense of safety and security within his own house. The third aggravating factor is that the victim was subjected to fear throughout the whole ordeal.

In considering whether I should pass the same sentence on you that was passed on the co-accused, I will now consider the mitigating factors.

I am satisfied from what I have heard and from reading the probation report and the summary of facts that the accused did not intend to cause any harm to the victim. Although the accused did not actively try to stop the co-accused, the accused visibly appeared to have regretted the over-aggressiveness of the co-accused and commenced to back out of the room. It was the co-accused who suggested the idea of taking money by force. The accused went along with the plan not realising how aggressive the co-accused was going to act. The only items that were taken during the robbery was the cash of about $130 and $1000 cheque. The other items particularised in the information namely the digital camera, and binocular were stolen before robbery was committed.

I will also take into account your previous good record. As I have said before if you had stayed at Matatufu Lotofaga with your parents and not accompanied the co-accused to Apia you would not be here in this courtroom. I also take into account what your counsel has told the court and what is stated in the probation report. I also take into consideration the fact that the victim did not suffer any permanent physical or emotional injuries as a result of your offended.

This is a very serious offence it is so serious that the maximum penalty is ten years imprisonment. A custodial sentence must always be considered to deter and to reflect the seriousness of the offence. It is for that reason that your co-accused was sentenced to 2 years and 6 months imprisonment.

In your case I have seriously considered the recommendation by the probation service. And for the mitigating factors which I have just refer to I am satisfied that a custodial sentence is not necessary here. I will follow the recommendation by the probation service. You will be sentence and placed on probation for a period of eighteen months. You will also do 100 hours community work. And you will live and reside at Matatufu Lotofaga with your family. You will also attend any other rehabilitating programme that the probation service will suggest to you.

JUSTICE VAAI