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Police v Faatau [2014] WSSC 75 (28 November 2014)

[SUPREME COURT OF SAMOA]

Police v Faatau and Alaimanu [2014] WSSC 75

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1819/14

BETWEEN

P O L I C E

Prosecution

A N D

ASOMALIU FAATAU male of Tafagamanu, Lefaga, and Fugalei and ISAAKO ALAIMANU male of Tiavea and Fugalei.

Accused

Counsel:
F Lagaaia for prosecution
Accused in persons

Sentence: 28 November 2014

S E N T E N C E

The charge

1. The accused Asomaliu Faatau (Asomaliu) and Isaako Alaimanu (Isaako) appear for sentence on one joint charge of aggravated robbery, contrary to s.177 (b) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment. Originally, the accused were charged with six charges, namely, one joint charge of aggravated robbery, one joint count of robbery, one individual charge of robbery against the accused Isaako, and three individual charges of robbery, being armed with a dangerous weapon, and throwing stones against the accused Asomaliu. Both accused pleaded not guilty but on the date of trial all of the charges, except the joint charge of robbery, were withdrawn by the prosecution. Both accused then vacated their not guilty pleas to the joint charge of aggravated robbery and entered guilty pleas.
2. The offence of aggravated robbery was only introduced to Samoan criminal law under the Crimes Act 2013. There was no such offence under the Crimes Ordinance 1961 which was repealed by the Crimes Act 2013. This would be the second case of aggravated robbery to come up for sentence before this Court under the 2013 Act. In terms of s.176 of the Act, robbery is theft accompanied by violence or threats of violence used to extort the property stolen or to overcome resistance to the stealing. In terms of s.177, robbery becomes aggravated robbery when more than one person are acting together in a robbery (s.177 (b)) or where a person acting alone in a robbery is armed with an offensive weapon (s.177 (c)) or by a person causing grievous bodily harm to any person during a robbery ( s.177 (a)). In this case, the accused are charged under s.177 (b) because they were acting together when they robbed the victim. They were not armed with an offensive weapon or caused grievous bodily harm to any person when they robbed the victim. Thus, paras (a) and (b) of s.177 do not apply.
3. The expression “together with any other person or persons” is explained in Adams on Criminal Law (1992) vol 1, CA 235.05 as follows:

“The words ‘together with any other person or persons’ mean that the offence requires proof that the accused was part of a joint enterprise of robbery by two or more persons. There will be sufficient participation if the accused joins a co-offender in the infliction of force on the victim, or by words or conduct participates in the making of threats of violence. Presence at the robbery, even if it amounts to aiding or abetting the robber, without such active participation in the robbery, is not sufficient for the offence under s.235 [aggravated robbery], although it may suffice for liability as a party to robbery under s.234: R v Galey [1985] 1 NZLR 230”

4. Sections 176 (robbery) and 177 (aggravated robbery) of our Crimes Act 2013 are based on ss.234 and 235 if the Crimes Act 1961 and are expressed in very similar terms as the New Zealand provisions.

The offending

5. The prosecution’s summary of facts which was admitted by both accused show that the accused Asomaliu is 23 years old and the accused Isaako is 29 years old. The victim is 38 years old.
6. On Monday night 19 May 2014 between 9:00pm and 10:00pm, the victim finished work at the construction site opposite the Fuglei Market where he is employed as a builder. He then walked along the road at Fugalei to the house of his uncle where he lives behind the SMI Hardware building at Fugalei. When he came to the SMI building, he noticed two men (the accused) standing on the road that leads to the house of his uncle. At that time, the victim did not know who the accused were because he was new to Fugalei. The accused came up to the victim and encircled him and stopped him. They questioned him as to where he lives. The victim replied he lives with his uncle at the back of the SMI building. The accused then demanded money from the victim but the victim told them he does not have any money. The accused then demanded his cigarette and the victim gave them his packet of Pall Mall cigarettes. The accused Isaako then collared the victim and held him up while the accused Asomaliu removed his t-shirt and his wrist watch. The accused also threatened the victim that if he does not hand over all his properties he would b stabbed with a knife. The accused also removed the victim’s shorts and left him naked with only his underwear. After robbing the victim, the accused let go of him. As the victim ran away, the accused threw stones at him.
7. The prosecution’s summary of facts then goes on to say that the accused and their friends subsequently stoned the house of the victim’s uncle on that same night. However, the individual charges of throwing stones and being armed with a dangerous weapon, namely, a stone preferred against Asomaliu have been withdrawn by the prosecution. There is also no count of throwing stones against Isaako. I will therefore ignore this part of the summary of facts which says that the accused and their friends stoned the house of the victim’s uncle.
8. The information jointly charging the accused with aggravated robbery shows that the victim’s wrist watch is valued at NZ$200 and the pair of shorts is valued at $35. There is no mention in the information of the packet of Pall Mall cigarettes and t-shirt which are also mentioned in the summary of facts to have been also stolen by the accused. I will amend the information to include the packet of Pall Mall cigarettes and the t-shirt as both accused have admitted to stealing those properties.
9. In their pre-sentence reports, the accused give slightly different accounts of their respective involvements in the robbery. To the extent that these accounts differ from what is in the summary of facts, I have decided to accept what is in the summary of facts which has been confirmed by the accused. However, I will accept what the accused say in their pre-sentence reports that all the items stolen from the victim were taken by Asomaliu and that the wrist watch and pair of shorts have been returned to the victim. I will also accept what the accused say in their pre-sentence reports that on the night of the offending they had been drinking alcohol and at the time of the offending they were under the influence of alcohol.

The accused Asomaliu Faatau

10. The pre-sentence report shows that Asomaliu comes from a stable family environment. He is still single. He finished school at Year 12 and then took up employment as a carpenter with a building construction company in Apia. At the time of the offending he was staying at Fugalei and helping out his uncle who lives at Fugalei with community work. Since this offending, Asomaliu has returned to his village of Tafagamanu, Lefaga, to live with his parents. He told the probation service that he has stopped drinking alcohol since this incident.
11. It also appears from Asomaliu’s pre-sentence reportthat it was him who took all the items stolen from the victim. The wrist watch and pair of shorts have been returned to the victim through the police.
12. Asomaliu is also a first offender and the testimonials from his mother, the pastor of his village, and the pulenuu of his village all show that he had been a person of good character prior to the commission of this offence. He has also apologised to the victim and his apology was accepted. On the morning of the trial, he vacated his not guilty plea after four of the charges against him had been withdrawn by the prosecution and pleaded guilty to the remaining charge of aggravated robbery.

The accused Isaako Alaimanu

13. The pre-sentence report on Isaako shows that he is married with three children. He also comes from a stable family environment. He finished school at Year 11. He was later employed as a waiter in one of the restaurants in Apia and then as a carpenter. His employment as a carpenter was terminated due to the present offence. At the time of the offending he was living with his sister at her husband’s family at Fugalei. Since this offending he has returned to his village of Tiavea. He told the probation service that he has stopped drinking alcohol since this incident.
14. Isaako is also a first offender and the testimonials from his mother, village pastor, and the pulenuu of his village all show that Isaako had been a person of good character prior to his commission of the present offence. He has also apologised to the victim and his apology was accepted. On the morning of the trial he vacated his not guilty plea to aggravated robbery after the chage of robbery against him was withdrawn by the prosecution.

The victim

15. As the victim impact report shows, the victim says that he was very afraid when confronted by two assailants especially as he was new to Fugalei. He was also incredibly hurt by what the accused did to him. This must have been a highly traumatic experience for him. However, the victim also says that there has been no enduring psychological effect of the offending on him.

The aggravating and mitigating features

16. Apart from the features which are inherent in the crime of aggravated robbery jointly committed by more than one person, the special features which aggravate this offending are: (a) the fact that the victim was robbed of everything he had on him including his clothes so that he was left naked, (b) the threat to stab the victim with a knife if he did not hand over all his properties, (c) the accused throwing stones at the victim as he was running away after being robbed, (d) the immediate impact of the offending on the victim who became very afraid and incredibly hurt and embarrassed, (e) even though the stolen items were not expensive, the victim is evidently a poor man and must have felt the loss of his properties, and (f) the accused did physically enforce their demand upon the victim. The only mitigating feature in relation to the offending is that the victim’s wrist watch and pair of shorts which were taken by Asomaliu have been recovered.
17. In relation to the accused as offenders, there is no aggravating feature. The mitigating features in this regard are: (a) remorse as shown by the apologies made by the accused which were accepted by the victim and the fact that both have stopped drinking alcohol since this offending, (b) the status of both accused as first offenders and that they were persons of good character prior to the commission of this offence, and (c) the accused’s pleas of guilty though belated.
18. It is also to be noted that the accused Isaako did not gain anything from this robbery as both accused say in their pre-sentence reports. All the stolen properties were taken by the accused Asomaliu.

Starting point for sentencing in cases of aggravated robbery

19. As this is a case of aggravated robbery on a public road or very close to a public road, I refer to what was said by the New Zealand Court of Appeal with regards to the starting point for street robbery in the case of R v Mako [2000] NZCA 70. In delivering the judgment of the Court, Gault J said at para [59]:

“At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.

20. Further on at para [60], Gault J said:

“The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then select a starting point”

21. In Sika v R [2011] NZCA 376 at para [29], a differently constituted New Zealand Court of Appeal adopted and applied the passage I have cited above from R v Mako [2000] NZCA 407, para [59]. And in Enoka v R [2012] NZCA 157, para 17, Chisholm J in delivering the judgment of the New Zealand Court of Appeal said:

“In R v Mako this Court noted that street robbery by demanding that a victim hand over money where offenders are acting together might justify a starting point of between 18 months and 3 years, even though no actual violence occurs, and acts of physical violence might require a higher starting point. A starting point of three and a half years for an aggravated robbery involving violence by multiple offenders was described in R v Lakatani [2008] NZCA 507 at para [32] as ‘light and unchallengeable’. And in Sika v R [2011] NZCA 376 at para [30] this Court observed that a starting point of three and a half years or more was open for a person who inflicted actual violence during the course of a robbery”.

22. In the recent case of Police v Ioelu [2013] WSSC 129 which was concerned with a charge of aggravated robbery where the accused assaulted and inflicted injuries on the victim, Nelson J took a starting point of 3 years for sentence. This must be the first case of aggravated robbery to come up before this Court for sentence under the Crimes Act 2013.

Discussion

23. In this case, there was actual physical enforcement by the accused of their demands upon the victim. The accused Isaako collared the victim and held him up while the accused Asomaliu removed his t-shirt and wrist watch. The accused then removed and took the victim’s shorts leaving him naked with only his underwear. All this was done on the public road at Fugalei or very close to it.
24. Having regard to the aggravating and mitigating features relating to the offending and the authorities I have cited, I will take 3½ years as the starting point for sentence. For previous good character I will deduct 9 months. That leaves 2 years and 9 months. For remorse, I will deduct 3 months. That leaves 2 years and 6 months. For their belated guilty pleas I will deduct 20% or 6 months. That leaves 2 years. In recognition of the fact that the accused Isaako did not gain anything from this offending, I will deduct a further 4 months. That leaves 1 year and 8 months in respect of that accused.

The result

25. The accused Asomaliu is sentenced to 2 years imprisonment.
26. The accused Isaako is sentenced to 1 year and 8 months imprisonment.
27. Any time that any of the accused has already spent in custody is to be further deducted.

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CHIEF JUSTICE