Finau v Police [2018] WSCA 7 (25 October 2018)

IN THE COURT OF APPEAL OF SAMOA
Finau v Police [2018] WSCA 7

Case name:	Finau v Police
Citation:	[2018] WSCA 7
Decision date:	25 October 2018
Parties:	ALENI FINAU (Appellant) and POLICE (Respondent).
Hearing date(s):	16 October 2018
File number(s):	CA18/18
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Harrison Honourable Justice Clarke
On appeal from:	Supreme Court of Samoa
Order:	Mr. Finau’s appeal against sentence and conviction is dismissed
Representation:	Tima Leavai for the Appellant Leone Su’a-Mailo & Fuifui Ioane for the Respondent
Catchwords:	Robbery – appeals sentence – appeals robbery conviction
Words and phrases:	Failing to pay taxi fares – charged taking and driving another vehicle without owner’s consent (appeals)
Legislations cited:	Crimes Act 2013, s. 176; Road Traffic Ordinance 1960, ss. 41 & 72.
Cases cited:	Police v Finau [2018] WSSC 67 (31 May 2018); R v Mako CA446/99, 23 March 2000.
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA18/18

BETWEEN:

ALENI FINAU
Appellant

A N D:

P O L I C E
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke

Hearing: Tuesday 16 October 2018

Counsel: Tima Leavai for the Appellant
Leone Su’a-Mailo & Fuifui Ioane for the Respondent

Judgment: Thursday 25 October 2018

JUDGMENT OF THE COURT

Introduction

1. Aleni Finau was found guilty following a Judge alone trial in the Supreme Court before Justice Vaai on one count of robbery,^[1] one count of taking and driving a motor vehicle without the owner’s consent,^[2]and two counts of failing to pay taxi fares. He was convicted and sentenced to 4 ½ years’ imprisonment.
2. Mr. Finau appeals against his convictions on the robbery and taking charges but not on the charges of failing to pay taxi fares. He also appeals his sentence.

Supreme Court

3. The prosecution’s case against Mr. Finau was as follows. One afternoon in November 2017 a taxi driver, Sagato Lomani, picked up Mr. Finau and drove him on two trips. On the first Mr. Lomani drove Mr. Finau to Moata’a; on the second he took him to Lalovaea. Mr. Finau did not pay his fare on either occasion but promised to do so later.
4. Later that day Mr. Lomani collected Mr. Finau with his brother and nephew from Lalovaea and delivered them to the Tokelau Office. Mr. Lomani then drove Mr. Finau to an ATM machine at the ANZ Bank to collect cash to pay Mr. Finau’s outstanding fares. However, Mr. Finau was unsuccessful in obtaining cash. He explained to Mr. Lomani that he had insufficient funds because the bank had not yet processed his loan application.
5. About midnight the next day, 17 November 2017, Mr. Finau called Mr. Lomani to collect him from behind the RSA Club, and then Toamua. During the journey Mr. Finau asked Mr. Lomani if he could pull over on the roadside to allow Mr. Finau to urinate. Mr. Finau left the vehicle and returned shortly afterwards with a knife which he placed on Mr. Lomani’s neck. He forced Mr. Lomani to leave his taxi at knifepoint. Mr. Finau then drove the vehicle away, leaving Mr. Lomani to walk home. The next day Mr. Finau phoned Mr. Lomani to advise his car was available for collection at Leauvaa-uta. Mr. Lomani did not find the vehicle there. Later that day Mr. Lomani reported his vehicle missing to the police.
6. Apart from taking Mr. Lomani’s taxi, Mr. Finau failed to pay him fares of SAT$62.00. He does not appeal his conviction on the charge of failing to pay this fare, or of failing to pay another fare of $150.00 owed to a separate taxi driver for services performed on 21 November 2017.
7. Both Mr. Lomani and Mr. Finau gave evidence at trial. Mr. Finau did not dispute Mr. Lomani’s evidence that he used his taxi as alleged. His defence was that he had paid Mr. Lomani for driving him around in his taxi; and that Mr. Lomani willingly gave him the vehicle for his own use. He denied ever using a knife to rob Mr. Lomani of his taxi.
8. Mr. Finau called as his witness La’i Samuelu. He said that he met Mr. Finau in the cells of the Court on the day of trial and that he knew Mr. Lomani who had told him in a drinking session that he gave his taxi to a friend (presumably Mr. Finau) to use for the weekend. Mr. Lomani gave evidence that he knew of Mr. Samuelu but they were never friends and never associated. He denied ever making the statement which Mr. Lomani attributed to him.
9. The trial lasted from 27 February to 02 March 2018. The Judge delivered a full written decision on 31 May2018.^[3]

Conviction

10. The Judge identified the real issue as a credibility determination between the competing accounts given by Messrs. Lomani and Finau. He preferred Mr. Lomani’s evidence. He found Mr. Finau’s version of events unconvincing. Mr. Finau had explained to the Court that he had abandoned Mr. Lomani’s taxi at Papauta because he had received a phone call from the true owner of the vehicle threatening to involve the Police if he did not return the vehicle. The Judge noted that this explanation did not reconcile with his Mr. Finau’s assertion that Mr. Lomani had authorized him to use the taxi. He found the charges proved.
11. On appeal Ms. Leavai challenged the Judge’s verdict on a number of grounds. She submitted that he failed to take into account Mr. Finau’s evidence and other evidence which cast a reasonable doubt on Mr. Finau’s guilt. She also submitted that the verdict went against the weight of evidence; and that the Judge erred in rejecting Mr. Samuelu’s evidence.
12. Ms. Leavai subjected the evidence given at trial to thorough analysis. However, her submission reduced to the simple proposition that the Judge erred in preferring Mr. Lomani’s evidence. Issues of credibility were for the Trial Judge. He enjoyed the special advantage of presiding at trial, and of hearing the evidence and observing the witnesses under cross-examination. He was best placed to determine credibility. There is no basis for us to interfere with his findings.
13. We add our agreement with the Judge that Mr. Finau’s exculpatory explanation defied rational belief. It was irreconcilable with his assertion that he had possession of the vehicle with Mr. Lomani’s consent. It might also be asked why the unidentified person whom Mr. Finau asserted gave him the taxi would have wanted to involve the police in its recovery if he had willingly given it to Mr. Finau. We also agree that Mr. Samuelu’s evidence was inherently implausible.

Sentence

14. Ms. Leavai submitted that the sentence of 4 ½ years’ imprisonment was excessive. In argument before us, however, she conceded that it would have been open for the Judge to adopt a starting point of at least 3 ½ years’ imprisonment, to be adjusted upwards by six months on account of Mr. Finau’s recent convictions for serious violence and dishonesty offences.
15. There are no tariff sentencing decisions of this Court for robbery and related offences. However, by reference to leading New Zealand authority we are satisfied that an appropriate base starting point would be at least 4 years.^[4]It is unclear why Mr. Finau was only charged with robbery. His use of a knife to take property constituted aggravated robbery. Those two factors aggravated his culpability on the lesser charge, and when the starting point is adjusted upwards for his recent serious offending, an end sentence of 4 ½ years was within the appropriate range and cannot be challenged

Result:

16. Mr. Finau’s appeal against sentence and conviction is dismissed.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE

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^[1]Crimes Act 2013, s. 176.
^[2] Road Traffic Ordinance 1960, ss. 41 & 72.
^[3]Police v Finau [2018] WSSC 67 (31 May 2018).
^[4]R v MakoCA446/99, 23 March 2000 at [56] and [57].