SUPREME COURT OF SAMOA
Police v Lipa [2013] WSSC 63

Case name:  Police v Lipa
Citation: [2013] WSSC 63
Decision date: 29 July 2013
Parties: 
POLICE (prosecution) and ENOSI LIPA male of Vaimoso (accused)
Hearing date(s): 
File number(s):  S8026/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
O Tagaloa for prosecution
Accused in person 
Catchwords: 
Sentence, wilful damage, aggravating and mitigating factors, first offender’s status, starting point for sentencing approach, provisional sentence
Words and phrases:
Legislation cited:
Crimes Act 2013
Community Justice Act 2008
Crimes Ordinance 1961
Cases cited:
Aaron Mark Wi v R [2009] NZSC 121
Key v Police (2013) (C.A 07/13
Police v Sawej Viliamu (2013) (SC No. S673/13
R v AM [2010] NZCA 114, [2010] 2 NZLR 750
R v Falealili [1996] 3 NZLR 664
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO. S8026/13

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

ENOSI LIPA male of Vaimoso.
Accused

Counsel:	O Tagaloa for prosecution
		Accused in person

Sentence:	29 July 2013   

S  E  N  T  E  N  C  E
The charge
1.	The accused appears for sentence on the charge of causing intentional damage to property.  This offence is provided under s.184 (2) (a) of the new Crimes Act 2013 which supersedes the offence of willful damage provided under s.113 Crimes Ordinance 1961.  Section 184 (2) (a) provides:
“A person is liable to imprisonment for a term not exceeding seven (7) years who:

“(a)  intentionally or recklessly, destroys or  damages any property”.
2.	The accused was remanded in custody on 12 June 2013. When his case was first called for mention on 8 July he pleaded guilty to the charge. He was then further remanded in custody and he has been in custody up to now.
The offending
3.	As the prosecution’s summary of facts shows, the complainant was at the Maliu Mai Bar at Fugalei on Saturday night 8 June 2013.  When the complainant left the Bar at around 7:30pm and walked out to her car at the parking area, the accused touched her bottom.  This made the complainant turn and called out to the accused, “you are so young and yet you’re so cheeky”.
4.	The complainant then got inside her car which was being driven by an acquaintance.  The accused approached the car and knocked on the complaint’s window.  When the complainant wound down the window and told the accused to go home, he punched the complainant on the mouth and ran away.
5.	The complainant and other occupants of the car then drove towards the direction where the accused was running.  When they reached Vaimoso they saw the accused walking on the side of the road.  When the car drew close to the accused, the headlights were brightened.  The accused then turned around, picked up a rock and threw it at the front windshield of the car causing it to crack.  When the car was steered away, the accused threw a second rock which hit the window of the front passenger’s seat.  According to the summary of facts, this caused the whole windshield to scatter into pieces.
6.	From the pre-sentence report, the accused told the probation service that on the evening in question he had been drinking a large bottle of vodka at Vaimoso with four of his cousins.  He was heavily intoxicated and had no clear recollection of his subsequent actions that evening.  He also told the probation service that there was no valid reason for his actions.
Victim Impact Report
7.	In the victim impact report, the complainant says that the total costs of repairs for the damage to her car was $1,500 and the accused has already paid the full costs of repairs.  She also says that the accused and his mother have apologised to her and she has already forgiven the accused.  This must have been before the accused was remanded in custody on 12 June 2013.
The accused
8.	The accused is a 19 year old male from the village of Vaimoso.  He is single and at the time of this offence was employed as a vehicle tyre repairman.
9.	The pre-sentence report shows that the accused’s father passed away in 2006.  In 2009, he left school at Year 9 as his mother could not afford his school fees.  He then helped his older brother with their late father’s lawn mower business.  Later, he found employment at a Chinese restaurant in Apia but his employment was terminated because he was under the influence of alcohol during working hours.  This year he found employment as a vehicle tyre repairman with his present employer.  The pre-sentence report also says that the accused drinks and is a regular smoker. 
10.	The accused’s older brother told the probation service that the accused is a supportive and caring member of their family and has the full trust of their mother with family obligations.  The testimonials from the pulenu’u of the accused’s village, the pastor of his church, and the accused’s current employer show that the accused is a person of reasonably good character.  However, consumption of alcohol has been to the detriment of the accused.  It led to the termination of his previous employment at a Chinese restaurant and now to this offence.
11.	The accused is a first offender.  He has paid in full the costs of repairs for the damage to the complainant’s car.  He and his mother have apologised to the complainant.  The apology was accepted and the accused has been forgiven by the complainant.
12.	The accused had also pleaded guilty at the earliest opportunity and has expressed remorse not only to the Court but to the probation service. 
The aggravating and mitigating factors
13.	The aggravating factors relating to the present offending are: (a) the actions by the accused were unprovoked and as he told the probation service there was no valid reason for his actions except that he was heavily intoxicated, (b) the arrogant attitude of the accused as shown by his ‘indecent’ interference with the complainant when she came out of the Maliu Mai Bar, then punching her on the mouth after she got inside her car, and then throwing rocks at the complainant’s car at Vaimoso, as well as (c) the extent and value of the damage to the complainant’s car.  There is no mitigating factor relating to the offending.
14.	In relation to the accused as offender, there is no aggravating factor.  However, there are several mitigating factors personal to the accused as offender.  These are: (a) his young age, (b) he is a first offender and of reasonably good character prior to the commission of this offence, (c) the accused has paid full compensation for the repairs to the complainant’s car, (d) the accused and his mother have apologised to the complainant and the apology was accepted and the complainant has forgiven the accused, and (e) the accused’s expressions of remorse to the Court and to the probation service. 
15.	The other mitigating factor which is of importance is the accused’s guilty plea at the earliest opportunity.  I also bear in mind that the accused has been remanded in custody since 12 June.
First offender status
16.	In my view, the submission contained in the prosecution’s sentencing memorandum (prepared by different counsel from counsel appearing) that the first offender status of an accused is not a mitigating factor may convey a meaning not intended unless read in the context in which such statement was made by the Court of Appeal in Key v Police (2013) (C.A 07/13; judgment delivered on 28 June 2013).  This is because while previous good character is a mitigating factor, there is generally a connexion between the first offender status of an accused and previous good character.  A first offender status may be a factor relevant to assessing good character even though on its own it is generally neutral. To the extent that the first offender status of an accused may be a factor in assessing previous good character, it may have a mitigating effect. Perhaps the real question is what weight should be given to the character of an accused given his first offender status and his previous reputation.  An accused who is not a first offender because of any previous conviction or convictions will generally not be a person of previous good character.  I say ‘generally’ because there may be previous isolated convictions which are  trivial in nature and of a different kind from the present offence that they do not necessarily reflect the true character of an accused, for example, a single conviction for driving while one’s driving licence has expired or for driving without fastening one’s seat-belt.  The age of a conviction can also be relevant.  There are many cases in which the Courts have treated an accused as a first offender and otherwise of good character because of the old age of a previous conviction.
17.	In R v Falealili [1996] 3 NZLR 664, 687, the majority of the New Zealand Court of Appeal said:
“We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character.  It may be a factor in assessing good character, but standing on its own it is generally neutral.  A person of bad repute may well have no convictions”.
18.	In the subsequent case of Aaron Mark Wi v R [2009] NZSC 121, para [2], Tipping J in delivering the judgment of the New Zealand Supreme Court said:
“[The] Kant Court emphasised that in Falealili the lack of previous convictions was regarded as no more than a factor in assessing good character and, by itself, was ‘generally neutral’.  The expressed rationale was that a person of bad reputation might well have no convictions”.
The starting point for sentencing approach
19.	The starting point approach revisited by this Court in Police v Sawej Viliamu (2013) (SC No. S673/13: judgment delivered on 12 July 2013) may be restated as follows; 
First, set the starting point for sentencing by taking into account the maximum penalty for the offence, prevalence of the particular kind of offence (if relevant), need for deterrence and/or rehabilitation (if relevant), as well the aggravating and mitigating factors relating to the offending.
Second, take into account any aggravating factors personal to the offender, for example, previous convictions which would increase the starting point and any mitigating factors (apart from a guilty plea and/or assistance to the authorities) personal to the offender which would decrease the length of the sentence.  In terms of R v AM [2010] NZCA 114, the sentence which is reached at this stage of the process will be the ‘provisional sentence’.
Third, have regard to any plea of guilty and/or assistance to the authorities. This will have the effect of decreasing the ‘provisional sentence’.  The final outcome of this whole process will be the sentence to be imposed on the offender. 
20.	It must be noted that the starting point for sentencing approach is only of assistance in determining how long a custodial sentence should be if the sentencing Judge is mindful of imposing such a sentence.  It is not appropriate where the sentencing Judge is mindful of imposing a non-custodial sentence. See R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at para [14].  
Discussion 
21.	Having considered the aggravating factors relating to the offending and the mitigating factors personal to the accused as offender as well as taking into account the sentencing objectives of retribution, deterrence, the need for protection of society, and rehabilitation, I have come to the conclusion that a non-custodial sentence would be the appropriate sentence in this case.  This means that it would not be appropriate to apply to this case the starting point for sentencing approach which is appropriate in cases where a custodial sentence is to be imposed.  
22.	The criminality of this offending lies in the actions of the accused of throwing rocks at the complainant’s car, without provocation, causing serious damage to the front windshield and the front window at the passenger’s side.  However, the impact of those actions on the complainant have largely been neutralised by the accused paying full compensation for the damage and by the accused and his mother apologising to the complainant who has forgiven the accused.  
23.	What remains in my opinion is balancing the public interest in the protection of society from the kind of actions committed by the accused and the public interest in the rehabilitation of the accused.  In weighing these public interests, I have come to the view that in this case the public interest in the rehabilitation of the accused should take precedence.  
24.	This is because of the mitigating factors personal to the accused as offender.  He is 19 years of age and therefore a young offender with his future still before him.  Except for his problems with alcohol, the pre-sentence report and attached testimonials show that the accused is a first offender and a person of reasonably good character prior to the commission of this offence.  He has also paid full compensation to the complainant and apologised to her and the apology has been accepted and the complainant has forgiven the accused.  I also accept that the accused is truly remorseful as he had told the Court and the probation service.  He had also pleaded guilty to the charge against him at the earliest opportunity which is a sign of remorse and acceptance of responsibility for his actions.  He has also been in custody for about 6½ weeks and he must have learnt from that experience that if he commits the same kind of actions again that is the sort of place where he will end up.  
25.	In all the circumstances, I have decided to sentence the accused to 6 months supervision in accordance with s.12 of the Community Justice Act 2008 in the hope that supervision and counselling will assist him with his drinking problem so that he will become a better and useful member of society in the future.  
26.	However, I must warn the accused that if he commits this kind of offence again and he is brought before the Court then he is likely to end up in prison.  So let this case be a lesson and a solemn warning to him.  

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution