Police v Simone [2016] WSDC 6 (7 March 2016)

DISTRICT COURT OF SAMOA
Police v Simone[2016] WSDC 6

Case name:	Police v Simone
Citation:	[2016] WSDC 6
Decision date:	7 March 2016
Parties:	KOLIO SIMONEmale of Leauvaa and Tafaigata Prison
Hearing date(s):
File number(s):	D3222/15
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 to be served cumulatively
Representation:	Rexona Titi for National Prosecution Office
	Defendant unrepresented
Catchwords:	escape from lawful custody – maximum penalty – sentence – mitigating features – aggravating features -
Words and phrases:
Legislation cited:	Criminal Act 2013 s143
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

D3222/15

BETWEEN

P O L I C E
Prosecution

A N D

KOLIO SIMONE male of Leauvaa and Tafaigata Prison
Defendant

Counsel:
R Titi for National Prosecution Office
Defendant unrepresented

Sentence: 7 March 2016

SENTENCING OF DCJ CLARKE

The Charge

1. The defendant appears for sentence on 1 charge of escape from lawful custody from Tafaigata Prison on the 5^th August 2015 in breach of section 143 of the Crimes Act 2013. The offence carries a maximum penalty of 2 years imprisonment.
2. The defendant pleaded guilty at first mention of his matter on 26 January 2016.
3. The defendant is one of eight prisoners who appeared before the Court on 19 February 2016 for sentencing for escape from lawful custody.

The Offending

4. The Summary of Facts accepted by the defendant is that on the 5^th August 2015, the defendant and other prisoners were divided into groups to undertake their usual working routines for cleaning. The Police officer that was on duty went to carry out a name check of all the prisoners for the work assignments and identified the defendant missing. He had already left the property and escaped from Tafaigata Prison.
5. The Police then were alerted and Police started a search for the defendant. On the 6^th August 2015, the Commissioner of Prisons located the defendant and brought him back to custody at Tafaiagata Prison. He had been out of custody overnight.

Background of the defendant

6. The defendant is Kolio Simone, a 34 year old male of Leauvaa. He is married, has two children and serving a period of imprisonment at Tafaigata Prison. He has a prior conviction for indecent assault entered on 21 July 2015 for which he was imprisoned for 17 months.

Aggravating features of the offending

7. The aggravating features of the offending are:
   1. The defendant breached the trust of the authorities in him to carry out cleaning work; and
   2. Police and Prison resources were expended in searching for him.

Mitigating features of the offending

8. The mitigating features in respect of the offending was that:
   1. he does not appear to have resisted his re-apprehension by the Commissioner of Prisons; and
   2. his period outside of lawful custody was overnight.

Aggravating features in respect of the offender

9. The aggravating factor in respect of the offender is that he escaped from prison after only serving approximately 3 weeks imprisonment on a seventeen (17) month imprisonment term.

Mitigating features in respect of the offender

10. The Defendant entered a guilty plea at the first available opportunity and expressed significant remorse for his offending before the Court openly weeping in Court for forgiveness.

Discussion

11. It is of concern to the Court the ease with which prisoners can escape from lawful custody. For the defendant, he simply appears on the Summary of Facts to have decided to leave the prison when tasked for his cleaning duties. He apparently escaped from the Prison without any apparent planning, forethought and after only approximately 3 weeks in prison. That a Prisoner can do so with such apparent ease is embarrassing for the prison authorities and clearly a matter that needs to be addressed with urgency, if not already addressed.
12. The defendant who is 34 years old is not a career criminal. He has one prior conviction for indecent assault and told the Court as he wept that he left custody as he missed his family and children and wanted to see them. He had not seen them for many days and because of that, he escaped from prison. He told the Court he won’t do it again and apologized to the Court. He acknowledged that he was wrong
13. On 19 February 2016, 8 escaped prisoners appeared for sentencing, escape from lawful custody by prisoners is now apparently all too common an offence. When prisoners escape from lawful custody, fear pervades the community and State resources expended in bringing them back to custody. The Court will impose a sentence to hold the defendant accountable for his actions, denounce and deter his conduct and deter other likeminded persons from escaping from lawful custody and hopefully promote in the defendant a desire to complete his remaining sentence without again escaping from custody.
14. The maximum penalty for escape from prison or 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 month imprisonment bringing your term of imprisonment to 4 months. I will deduct for your guilty plea at the first opportunity and clear remorse and other mitigating factors 2 months. This leaves a term of imprisonment of two months imprisonment.

Sentence

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

Judge Leiataualesa Daryl M Clarke