Police v Lima [2016] WSDC 20 (11 May 2016)

DISTRICT COURT OF SAMOA
Police v Lima [2016] WSDC 20

Case name:	Police v Lima
Citation:	[2016] WSDC 20
Decision:	11 May 2016
Parties:	POLICE v KOLOSETA LIFA LIMA, male of Iva Savaii, Fagalii and Tafaigata Prison
Hearing date(s):
File number(s):	D200/16, D201/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to 3 months imprisonment. Both sentences are to be served concurrently but are cumulative to your current term of imprisonment.
Representation:	R Titi and O Tagaloa for National Prosecutions Office
	Defendant in person
Catchwords:	threat to kill – armed with a dangerous weapon – aggravating features – mitigating features – starting point for sentence
Words and phrases:
Legislation cited:	Criminal Act 2013 s.129, Police Offence Ordinance 1961 s.25.
Cases cited:	Police v Niko [2016] WSSC 24 (29 February 2016
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

KOLOSETA LIFA LIMA, male of Iva Savaii, Fagalii and Tafaigata Prison.
Defendant

Counsel:

R Titi and O Tagaloa for Prosecutioni

Defendant in person

Decision : 11 May 2016

SENTENCING OF JUDGE CLARKE

The Charges

1. You appear for sentence on 2 charges both arising out of an incident on the night of 1^st January 2016, namely:
   • (i) making a threat to kill or do grievous bodily harm in breach of section 129 of the Crimes Act 2013 and which carries a penalty not exceeding 3 years imprisonment; and
   • (ii) being armed with a dangerous weapon, namely a kitchen knife in breach of section 25 of the Police Offence Ordinance 1960 carrying a maximum penalty of 1 year imprisonment.
2. You pleaded guilty to both charges at first mention on 9 February 2016.

The Offending

3. The Summary of Facts accepted by you is that on 1 January 2016 at around 9.00pm, the victim went to the Returned Services Association (RSA) Nightclub. After being at the RSA Nightclub, she left the RSA to go and buy some cigarettes. When she reached the town clock, she was surprised when you called out to her to come and ‘hang out’ with you. She ignored your request and continued to walk away. When she looked back, she saw you following her and you were armed with a knife. As she ignored you and walked away, you threatened her and said “o le a kui gei oe i le gaifi.” The victim walked away faster and then reached the market and safety. The matter was then reported to Police.
4. You are a prisoner at Tafaigata Prison. When you committed your offending, you told the Court that you had been released from prison on ‘weekend release’. You told the Court that you became eligible for ‘weekend release’ after serving 4 years imprisonment. You said you had an argument with your wife so you went to town and got drunk. You said you were just too drunk when you committed your offending.

Background of the defendant

5. You are a 35 year old male of Fagalii. You are married with 4 children and you are currently serving an imprisonment term at Tafaigata Prison. You confirmed your Prior Conviction Record which records your history of offending as follows:
   • (a) Convicted in the Supreme Court on 14 April 2006 for carnal knowledge and sentenced to two years imprisonment and time in custody deducted. You were paroled for this offending on 22 June 2007;
   • (b) Convicted of rape and abduction on 22 October 2012 and sentenced to 10 years imprisonment for rape and 4 years imprisonment for abduction. Both terms to be served concurrently.
6. It is those sentences at paragraph 5(b) you were serving when you committed this offending.

The Victim

7. The victim is a 41 year old female. She states in her Victim Impact Report that she has known you over many years but that when you called out to her, she did not know it was you. She said that she was terrified of you on the night of your offending. You have apologized to the victim and she has accepted your apology.

Aggravating features of the offending

8. The aggravating features of your offending are as follows:
   • (a) At the time of your offending, you were a prisoner on ‘weekend release’. ‘Weekend release’ is a privilege extended to prisoners for rehabilitation. Offending by prisoner’s on ‘weekend release’ or any form of rehabilitative release brings the rehabilitation programs in to disrepute and there is loss of community trust in Prison authorities and loss of confidence in the justice system;
   • (b) Your offending was premeditated in that you had taken a knife to arm yourself with when you accosted the victim and then threatened her;
   • (c) Your offending involved the excessive consumption of alcohol while you were on ‘weekend release’ and you were drunk in a public place;
   • (d) Your offending occurred at night and involved you following the victim over a distance as she walked away from you in fear;
   • (e) The victim was vulnerable and unarmed; and
   • (f) Your threats of stabbing the victim with a knife were made when you were holding a knife with which to carry out your threats.

Mitigating features of the offending

9. There are no mitigating features in respect of your offending.

Aggravating features in respect of the offender

10. The aggravating features in respect of you as an offender is that you are a prisoner with prior convictions involving very serious sexual assaults against a woman and a girl. You are a recidivist sexual offender who chooses females as your victims.

Mitigating features in respect of the offender

11. You entered a guilty plea at the first available opportunity. You told the Court you accepted responsibility for your actions which were due to you being drunk. Your actions you said were stupid and wrong. You also expressed apparent remorse for your offending and asked that the Court impose a light sentence on you.

Discussion

12. You were released by the Prison and Corrections Service at New Year 2015 - 2016 on ‘weekend release’. The objective of ‘weekend release’ is apparently for your rehabilitation and to prepare you for your return to the community. Given you were sentenced to 10 years imprisonment for rape on 22 October 2012, I am at a loss as to why you would be eligible for ‘weekend release’ after serving just over 3 years of imprisonment of a 10 year term. You have a significant custodial sentence to serve before completing your sentence. In any event, rehabilitation is defined in the Oxford Online Dictionary as “the action of restoring someone to health or normal life through training and therapy after imprisonment, addiction, or illness.”
13. Instead of using your “weekend release” for your rehabilitation to restore you to “normal life”, you used the program to commit further serious offences. The making of threats to kill or do grievous bodily harm carry a maximum penalty of up to 3 years imprisonment which reflects the seriousness of the offending in the eyes of the Parliament of Samoa. You said you argued with your wife. You then went to town, got drunk, proceeded to follow the innocent and unarmed female victim and then threatened to stab her with a knife you held in your hand. Those threats understandably terrified the victim. It was also a gross breach of the privilege extended to you and brings any temporary or pre-release programs offered by the Prisons and Corrections Service into disrepute. It also undermines the public’s confidence in the Prison and Corrections Service, its rehabilitation programs and ultimately, the justice system. As I have said in an earlier matter, offending by prisoners, whether escapees or those on a pre-release or short term release program is a matter of significant public concern and a deterrent sentence must also be imposed.
14. A further aggravating factor in your case is your prior offending. You have three prior convictions, all of which are connected to sexual and violent offending against females.
15. Before I turn to the sentence I will impose, I wish to address the Prison and Corrections Service’s “Weekend Release Program”. The Prisons and Corrections Act 2013 (“the Act”) provides that Regulations are to provide for short term release including weekend release programs (see section 51).
16. Having reviewed the Act and the Prisons and Corrections Regulations 2014, the Regulations provided do not establish a Weekend Release Program in accordance with section 51. There is no provision in the Regulations establishing the Weekend Release Program. This view is supported by the opening words of the Regulations which provide that the Regulations are made pursuant to sections 5(6), 6(11), 10, 14, 15, 17, 19(1), 20 and 60 of the Act. The Regulations make no reference to having been made pursuant to section 51 of the Act. The “Weekend Release Program” therefore does not appear to be consistent with the Act. In the absence of any policies which were also requested, it is also unclear what criteria are being applied by the Prison and Corrections Service for prisoners to be released into the community.
17. Prosecution has advised the Court’s concerns are being addressed. It is strongly recommended that the Prison and Corrections Service urgently review the Prisoner “Weekend Release” program to ensure that the program is supported by Regulation as required by the Act. The program must be transparent, based on clear guidelines and developed around evidence based rehabilitation programs that underpin the release of Prisoners into the community. The release of Prisoners into the community on the “Weekend Release Program” is a matter of significant public interest and concern. It is also the subject of judicial concern (see for instance the judgment of Her Honour Tuatagaloa J in Police v Niko [2016] WSSC 24 (29 February 2016)). The Prisons and Corrections Service must therefore implement a scheme that protects the public, is transparent and truly addresses the rehabilitation of Prisoners as opposed to a scheme that is simply releasing Prisoners into the community on weekends and left to their own devices, as seems to be the case.

Sentence

18. Having taken into account all the aggravating and mitigating factors, the sentence I will impose will be a custodial sentence to hold you accountable for your actions, denounce and deter your conduct, deter other likeminded persons from such actions, instill in you responsibility for your actions and to protect the public interest. Where Prisoners commit offending on a release program, they must understand that they run the real risk of a further custodial sentence being imposed by the Courts.
19. For the charge of making a threat to kill or do grievous bodily harm, I will start with a starting point of 9 months imprisonment. For the aggravating factors personal to you as an offender, I will add 3 months imprisonment. I will deduct 3 months for your guilty plea and 2 months for your apology and apparent remorse leaving a term of 7 months imprisonment. For being armed with a dangerous weapon, I will start with a term of 4 months imprisonment. I will add 1 month for aggravating factors personal to you as an offender and deduct 2 months for your early guilty plea and remorse. That leaves a term of imprisonment of 3 months. Both sentences are to be served concurrently but are cumulative to your current term of imprisonment
    

JUDGE LEIATAUALESA D. M. CLARKE