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Police v Sape [2015] WSSC 160 (20 July 2015)

IN THE SUPREME COURT OF SAMOA
Police v Sape [2015] WSSC 160

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MA’IA’I TAMAMASUI MISA SAPE, male of Matautu and Vaovai Falealili.
Defendant

Counsel: Ms Amosa for prosecution
Defendant unrepresented

Sentence: 20 July 2015

SENTENCE

1. The defendant appears for sentence on a number of charges: causing injury with intent; driving a vehicle without the owners consent; burglary aggravated robbery and aggravated burglary; kidnapping, theft and finally possession of narcotics. The police summary of facts which he admitted this morning states he is a 25 year old single male of Matautu Falealili, unemployed. The victim is a citizen of France but currently residing at Matautu Falealili and is a consultant and businessman.
2. In the early hours of 13 May 2015 the defendant entered the victims house at Matautu Falealili. He tore open a screen wire of a window and removed the louvers using a knife. Entered the victims house, went into the bedroom and rummaged through the victims belongings before approaching the victim. The victim felt someone touching his arm and face and woke up. Saw it was the defendant. He recognized the defendant because he knows him as a person of the village.
3. Immediately a fight ensued between the two of them. All the while the defendant was armed with the knife. The victim managed to break away and tried to run out of the room. However the defendant tackled the victim and the two of them struggled resulting in both falling onto the floor. The victim yelled for help and the defendant responded by putting his hands over the victims mouth. Victim bit the defendants hand and in return the defendant bit the victims finger causing injury to his little finger.
4. The defendant grabbed the victims neck and began to strangle him telling him not to scream. The victim complied and the defendant threatened the victim telling him he needed $2,000 for a faalavelave. The victim told him he did not have any cash and they would have to come to Apia to an ATM machine. Defendant agreed, tied the victims hands and took him to the victims car. Defendant got into the car and drove away. But lost control and the vehicle ended up in a ditch near the defendants house.
5. Defendant left the vehicle to retrieve his personal belongings from his house and the victim was then able to free himself and seek help from neighbours. When the defendant returned to the car he found the victim had escaped. He removed the car from the ditch and drove it into Apia. Inside the vehicle was $2,000 belonging to the victim as well as some cigarettes, his phone and other properties.
6. The matter was reported to the police and the victim attended a private hospital on 15 May. According to the medical report the victim had scratch marks on the right side of his neck consistent with finger imprints. Report also notes his voice was hoarse due to inflammation of the vocal cords as a result of being strangled. He had scratch marks on his right chest and on his nose as well as swelling and an injury to his right small finger. The victim impact report filed indicates there was considerable bruising and swelling associated with these injuries. The report also notes there was considerable psychological trauma and stress experienced by the victim as a result of this incident.
7. The documents before the court indicate the victim was a consultant working in the defendants village developing projects for the betterment of the village. The defendants offending has impacted on the work of the victim which is probably why a significant fine was imposed by the defendants village on the defendants family. And why the defendant has been banished from the village by the village council.
8. The most serious of the charges are the aggravated robbery and aggravated burglary. Both offences carry a 14 year maximum penalty by law. Burglary and robbery of expatriates by local residents is a very common occurrence in our country. The courts penalty must be designed to discourage such offending in relation not only to expatriates but to all people. To safeguard the houses of all Samoan residents. This is a case involving a home invasion at night by an armed intruder. Involving a robbery at knife point by the intruder including a struggle that caused injuries followed by a tying up of the victim and kidnapping of him in his own vehicle.
9. Considering all the circumstances of this matter an 8 year imprisonment start point is quite appropriate. I upgrade that to 10 years because the defendant has a previous conviction in 2014 for very similar offending also involving robbery and conversion of a motor vehicle. And I note this offending occurred while the defendant was still on supervision for that offence. On that occasion Ma’ia’i was given a chance by the court and I told him very clearly no further chances would be given if he reoffended. Ma’ia’i has failed to heed those words or make use of the chance that the court gave him.
10. From the 10 year start point for sentence there are deductions however Ma’ia’i you are eligible for deductions which I will now make. Firstly for you guilty plea I deduct one-quarter of your sentence because that has saved the time and resources of the court and the State. It also is an expression of remorse for your offending. That is a period of 2½ years, leaves a balance of 7½ years. The village council penalty on you and your family was considerable and includes your banishment I therefore deduct 1½ years to reflect that penalty. Leaves a balance of 6 years.
11. There are no other deductions that can be made from your sentence. On each charge of aggravated robbery and aggravated burglary convicted and sentenced to 6 years in prison, terms concurrent.
12. On the charge of burglary this is a superfluous and duplicate charge it is dismissed.
13. On the charge of kidnapping this involved you tying up the complainant and putting him into his car which you then drove away. He only managed to escape after you had an accident because you were unable to control the vehicle probably due to your intoxicated state. It is a serious offence, kidnapping carries a 10 year maximum penalty. At least a 5 year start point for sentence is appropriate which I upgrade to 6 years to reflect your relevant previous conviction. Again I deduct one-quarter of that sentence for your guilty plea reaching an end sentence of 4½ years in prison for kidnapping. Because that offending is part and parcel of the overall offending that term to be served concurrent.
14. On the charge of theft of the motor vehicle and the other properties of the complainant I note only the car was recovered as per the documents before me. A 7 year maximum is prescribed by law. I will start sentencing at 4 years, deduct 1 year for your guilty plea leaves an end sentence of 3 years in prison. On the charge of theft convicted and sentenced to 3 years in prison concurrent term.
15. On the charge of causing injury to the complainant a 2 year start point is appropriate for sentence. Deducting one-quarter for your guilty plea leaves an end sentence of 18 months. Convicted and sentenced on the charge of causing injuries to 18 months in prison, concurrent term.
16. On the charge of driving a vehicle without the owners consent that is a minor charge convicted and discharged. That is also incorporated into the sentencing for kidnapping.
17. The defendant was also found guilty of possessing three (3) marijuana cigarettes discovered on him by the Prison Authority on his return to prison during one of his remands in court. In respect of that charge convicted and sentenced to 2 weeks in prison. As that is separate offending that is to be cumulative to the above prison term of 6 years.
18. O lona uiga o le aofaiga o lou taimi i le toese mo mataupu uma nei Ma’ia’i e 6 tausaga ma vaiaso e 2. A’o le taimi lea sa e nofo taofia ai e faatalitali le faaiuga e toesea mai le taimi lea ua faasala ai oe mo mataupu nei. Faafetai ua maea lau mataupu.

JUSTICE NELSON