Police v Kenese [2016] WSDC 27 (7 July 2016)

DISTRICT COURT OF SAMOA
Police v Kenese [2016] WSDC 27

Case name:	Police v Kenese
Citation:	[2016] WSDC 27
Decision date:	7 July 2016
Parties:	POLICE v IOSUA KENESE, males of Fogasavai’i Savaii and Tafaigata Prison
Hearing date(s):
File number(s):	D1357/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to two (2) months imprisonment to be served cumulatively to his current sentences of imprisonment.
Representation:	C Stanley (SGT) for prosecution Defendant in person
Catchwords:	Escape
Words and phrases:
Legislation cited:	Criminal Act 2013 s.143
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

IOSUA KENESE, male of Fogasavai’i Savaii and Tafaigata Prison.
Defendant

Counsel:
C Stanley (SGT) for National Prosecutions Office
Defendant in person
Decision: 7 July 2016

SENTENCING DECISION OF DCJ CLARKE

The Charge

1. Iosua, you appear for sentence on 1 charge of escape from lawful custody from Mulinu’u on the 26^th April 2016 in breach of section 143 of the Crimes Act 2013. The offence carries a maximum penalty of 2 years imprisonment.

2 You pleaded guilty at the first available opportunity.

The Offending

3. The Summary of Facts accepted by you is that on the 26^th April 2016, you were brought by a Police Officer to Court for your remand. Whilst you were awaiting the availability of a Registrar, you ‘sneaked away’ from Police custody and into bushes behind the court building. You were later recaptured that day at Alafua. In your sentencing, you told the Court that the Police Officer had fallen asleep so you escaped as you missed your family

Background of the defendant

4. You are a 29 year old male of Fogasavaii and Tafaigata. You are serving an imprisonment term at Tafaigata. You have a lengthy prior conviction record. According to your prior conviction record, you were first convicted in 2004 for theft when you were 17 years of age. Since 2004, you have had a further 6 convictions, all for offences of dishonesty. You however also confirmed to the Court that in 2016, you were also convicted by this Court for indecent assault and for that offence, sentenced to further imprisonment.

Aggravating features of the offending

5. The aggravating features of the offending are that:
   • (a) you breached the trust of the authorities in you; and
   • (b) whilst you escaped from custody, you were before the Courts for other matters.

Mitigating features of the offending

6. There are no mitigating factors.

Aggravating features in respect of the offender

7. The aggravating factors in respect of you as an offender is that you have a number of prior convictions and therefore cannot be said to be a person of good character.

Mitigating features in respect of the offender

8. You entered a guilty plea at the first available opportunity and expressed some remorse for your actions and accepted your wrong doing.

Discussion

9. Similar to a number of earlier matters before the Court for sentencing for escape, the ease by which prisoners appear to be able to escape lawful custody is of concern. Not only does this occur from the Prison, but apparently, also from in-custody prisoners brought to the Courts.
   
10. You are now 29 years of age and have been before the Courts since the age of about 17. You have been sentenced to various imprisonment terms and so have spent much of your life since 2008 in prison. You told the Court that the reason that you escaped from custody was that the Police officer allegedly slept and you wanted to go to see your family. As has been said to other prisoners who have been sentenced before this Court, the only guarantee for Prisoners to see their families and to stay with their families is to complete their sentences and become law abiding citizens. Whilst you have spent a large part of your life since 2008 in prison, you are a young man and still have scope to change your life. Iosua, complete your prison term so that you can return to your family and on your return, become a law abiding citizen so that you can remain with your family. Change is possible.
    11. The maximum penalty for escape from prison or lawful custody is 2 years imprisonment. Taking into account the mitigating and aggravating factors of your offending, I will begin sentencing with a start point of three (3) months imprisonment. Based on your aggravating factors as an offender, I will add one (1) month imprisonment bringing your term of imprisonment to four (4) months. I will deduct for your guilty plea at the first opportunity and remorse 2 months. This leaves a term of imprisonment of two (2) months imprisonment.

Sentence

12. The defendant is convicted and sentenced to two (2) months imprisonment to be served cumulatively to his current sentences of imprisonment.

JUDGE LEIATAUALESÃ D M CLARKE