Police v Tavita [2016] WSDC 7 (7 March 2016)

DISTRICT COURT OF SAMOA
Police v Tavita [2016] WSDC 7

Case name:	Police v Tavita
Citation:	[2016] WSDC 7
Decision date:	7 March 2016
Parties:	POLICE v TULUI TAVITA male of Falevao and Tafaigata Prison
Hearing date(s):
File number(s):	D3217/15
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to 5 months imprisonment to be served cumulatively to his current sentence of imprisonment
Representation:	R Titi for prosecution
	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

D3217/15

BETWEEN

P O L I C E
Prosecution

A N D

TULUI TAVITA male of Falevao and Tafaigata Prison
Defendant

Counsel: Rexona 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 Tafaiagata Prison on the 17^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 five 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 17^th August 2015, the defendant and other prisoners were released from their rooms to undertake work inside the prison property for cleaning banana trees and coconut trees. The defendant told one of the prisoners that his imprisonment term at Tafaigata ended that day. The defendant then left the property where the work was being undertaken without informing any of the other prisoners. One of the prisoners who was leading the work then started looking for the defendant and the prisoner thought that the defendant was at Tafaigata Prison signing his release papers. The prisoner then informed prison authorities that the defendant was missing and Police were then sent in search of the defendant. On the 24^th of November 2015, the defendant was re-apprehended by Police, some three (3) months plus after his escape from custody.

Background of the defendant

5. The defendant is Tului Tavita, a 22 year old male of Falevao. He is single and serving an imprisonment term of two (2) years for rape based on the letter from Samoa prisons and Corrections Services. The Prior Conviction Record provided by Prosecution does not state the prior conviction for rape. He previously escaped from prison on 17 August 2015 where he was outside of custody for about 5 days, based on a letter provided by the Commissioner of Prisons and confirmed by the Defendant.

Aggravating features of the offending

6. The aggravating features of the offending are:
   1. The defendant breached the trust of the authorities in him to carry out cleaning work;
   2. Police and Prison resources were expended in searching for him over a long period of time with recapture over 3 months later, a serious aggravating factor in the offending; and
   100. The escape was apparently premeditated and planned in terms of the statements made to other prisoners.

Mitigating features of the offending

7. There are no apparent mitigating features of the offending.

Aggravating features in respect of the offender

8. The aggravating factors in respect of the offender is that he escaped from prison after only serving 6 months of a two (2) year imprisonment term and he has a previous conviction for escape.

Mitigating features in respect of the offender

9. The Defendant entered a guilty plea at the first available opportunity. He however expressed no remorse for his offending and did not wish to make a statement to the Court, answering questions only from the bench. His mother present in Court however asked for his forgiveness.

Discussion

10. It is of deep concern to the Court the ease with which prisoners can escape from lawful custody. For this defendant, it ought to be of particular embarrassment to the prison authorities that the defendant’s escape in this instance was not identified by the prison authorities or guards but in fact by another prisoner. The Summary of Facts gives the impression of a distinct absence of prison guards supervising the prisoners at all. That a Prisoner can escape with such ease is embarrassing for the prison authorities and clearly a matter that needs to be addressed with urgency, if not already addressed.
11. The defendant is 22 years old. He has two (2) prior convictions, one for rape and one for escape, a similar conviction for which he appears for sentencing today. He expressed no remorse in Court and chose not to address the Court in mitigation of sentencing.
12. On 19 February 2016, 5 escaped prisoners appeared for sentencing, escape from lawful custody by prisoners 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. In this case, it took authorities three (3) months to re-apprehend the defendant, no doubt at significant cost and time to Police and Prison authorities. 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.
13. 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 six (6) months imprisonment. Based on your aggravating factors as an offender and prior conviction for the same offence, I will add one month imprisonment bringing your term of imprisonment to 7 months. I will deduct for your guilty plea at the first opportunity 2 months. This leaves a term of imprisonment of five (5) months imprisonment.

Sentence

14. The defendant is convicted and sentenced to five (5) months imprisonment to be served cumulatively to his current sentences of imprisonment.

Judge Leiataualesa Daryl M Clarke