Police v Loleni [2016] WSDC 40 (27 September 2016)

DISTRICT COURT OF SAMOA
Police v Loleni [2016] WSDC 40

Case name:	Police v Loleni
Citation:	[2016] WSDC 40
Sentencing:	27 September 2016
Parties:	POLICE v ALESANA LEVI aka LISONA LOLENI and TAEAUGA SIO LAVASII aka SIO LAMEKO, both males of Tanugamanono.
Hearing date(s):	26 September 2016
File number(s):	D1447/16, D1560/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	Judge Leiataualesa D M Clarke
On appeal from:
Order:	Convicted and sentenced to 12 months supervision with the usual conditions applying to both of you as well as the following special conditions: (i) Carry out 100 hours community work as directed by the Probation Service; (ii) Reside with your respective parents or with prior Probation Service approval, another family member approved by the Probation Service; (iii) From today until 26 March 2017, you are under curfew to be at your place of residence from 8.00pm every night until 6.00am every morning; (iv) From 27 March 2017 to 26 June 2017, you are under curfew to be at your place of residence from 10.00pm every night until 6.00am every morning; (v) Prohibited from becoming a member of any so called gang including the HBK; and (vi) Not to re-offend. If you wish to return to school or wish to undergo a program, you are to liaise with the Probation Service. During the 12 month supervision period, Probation Service is to also consider appropriate programs that may assist you with your rehabilitation.
Representation:	O. Tagaloa for National Prosecution Office Defendant in person
Catchwords:	Unlawful Assembly
Words and phrases:
Legislation cited:	Criminal Act 2013 s.42
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ALESANA LEVI aka LISONA LOLENI and TAEAUGA SIO LAVASII aka SIO LAMEKO, both males of Tanugamanono.
Defendant

Counsel:
O Tagaloa for National Prosecution Office
Defendant in person

Decision : 27 September 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Defendants, you appear for sentencing on one count of carrying out an unlawful assembly in breach of section 42 of the Crimes Act 2013.
2. You pleaded guilty to the charge at an early stage. The charge carries a maximum penalty of 1 year imprisonment.

The Offending

3. According to the Summary of Facts accepted by you, you are both members of the HBK Gang otherwise known as the “Hospital Boys Killers”. On the 30^th July 2016 at Apia, Police were on duty in front of the government building to patrol the Youth Alive Concert held that night. You two were present at the Government Building assembled with three other boys. Your group’s plan was to find members of another gang, the OBO “to cause trouble with them”, as stated in the Summary of Facts
4. Whilst the 2 of you were with the three others on the look-out for members of the OBO, Police must have become suspicious of you as they then questioned you about what you were doing. You gave your cell phones to the Police Officers and the cell phones disclosed your plan to “commit an offence against the OBO boys.” You both agreed that the purpose for which you assembled together and attended the Youth Alive Concert with the other three boys was to commit an offence against the OBO.
5. You were subsequently arrested and charged for the offence for which you appear today for sentencing.
6. When asked whether you remain members of the HBO, you both told the Court that you are no longer members of that gang.

The Accused

7. You Alesana Levi aka Lisona Loleni are an 18 year old male of Tanugamanono. You were a year 12 Art Student at Avele College. You Sio Lameko aka Taeauga Sio Lavasii are an 18 year old male of Tanugamanono. You were a student from Chanel College. You both told me that you have been expelled from school.

Aggravating features of Offending

8. The aggravating features of your offending are that:
   • (a) You were members of a Youth Gang at the time of offending;
   • (b) You jointly formed a plan together with the other boys to carry out offending against what is obviously a rival gang or group;
   • (c) Your plan involved the carrying out of your actions in a public place where members of the community had planned to peacefully attend the Youth Alive Concern and celebrate that concert; and
   • (d) Your offending has become a prevalent offence.

The mitigating features of your offending

9. There are no mitigating features of your offending.

The aggravating factor relating to you as an Offender:

10. You are first offenders and have no prior convictions.

The mitigating factors relating to you as an Offender:

11. Firstly, I take into account your guilty pleas.
12. Secondly, I take into account your youth.
13. Thirdly, you have both expressed remorse for your offending. I suspect your remorse stems from being brought before the Courts and the risk of your imprisonment more than anything else. Nevertheless, I will accept what you have said and give you some credit for the remorse you have stated.

Discussion

14. Despite the extensive steps taken by the community, the Courts and the Police to address this type of offending, some of the youth in our community like yourselves continue to gather in groups and in your case, in something ridiculously called the “Hospital Boys Killers”, to cause fights with others and breach the peace.
15. That our young people continue to ignore the steps taken by the community, the Courts and Police to address this type of offending in a constructive and meaningful way is the cause of serious concern. You both said that you were present when the Prime Minister attended Avele College and warned you of the consequences of this type of offending by school students. Despite the benefit of the Prime Minister’s speech and the time that he took to address school pupils on this issue, you foolishly became or remained members of the HBK and planned your offending against the OBO at a Youth Concert.
16. As I also made quite clear to both of you, if you remained members of the so called HBK today, I would contemplate an imprisonment term on you. This is because if you remained a member of this ‘gang’ and had learnt nothing from your experience with Police and the Court, then a deterrent sentence involving imprisonment would be considered so that it is quite clear that membership of these so called youth gangs that plan unlawful and anti-social acts is not acceptable.
17. I will however accept what you have told me that you are no longer members of the HBK group. There is no future for you to be involved in such a group. I will also accept what you have both said that you are sorry for your offending and are remorseful. Whilst it will spare you a possible imprisonment term, the sentence I will impose will balance deterrence together with a lengthy supervision term in the hope that it will keep you on the right path. Should you however stray from that path and breach the terms of the sentence that I impose today, that will no doubt be viewed very seriously when you are brought back before the Courts.

The penalty

18. You are both convicted of the charge before the Court and sentenced to 12 months supervision with the usual conditions applying to both of you as well as the following special conditions:
    • (i) Carry out 100 hours community work as directed by the Probation Service;
    • (ii) You are to reside with your respective parents or with prior Probation Service approval, another family member approved by the Probation Service;
    • (iii) From today until 26 March 2017, you are under curfew to be at your place of residence from 8.00pm every night until 6.00am every morning;
    • (iv) From 27 March 2017 to 26 June 2017, you are under curfew to be at your place of residence from 10.00pm every night until 6.00am every morning;
    • (v) You are prohibited from becoming a member of any so called gang including the HBK; and
    • (vi) You are not to re-offend.
19. If you wish to return to school or wish to undergo a program, you are to liaise with the Probation Service. During the 12 month supervision period, Probation Service is to also consider appropriate programs that may assist you with your rehabilitation.

JUDGE LEIATAUALESA D.M. CLARKE