Police v Kennach [2006] WSSC 35 (6 June 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

NORRIS KENNACH
male of Lotopa.
Accused

Counsel: P Chang and M Boone-Dumaran for prosecution
A Roma for accused

Sentence: 06 June 2006

SENTENCE

The charge

There is one count by which the accused is charged by himself under s.92 of the Crimes Ordinance 1961 with the offence of robbery which carries a maximum penalty of ten years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.

The offending

According to the summary of facts prepared by the prosecution and confirmed by the accused, the accused along with other persons assaulted the victim on the seawall at Matagialalua in Apia on Saturday night, 11 March 2006, and stole the victim’s wallet containing $90 cash and two credit cards. From the assault, the accused suffered a crack fracture of his nasal bone and bleeding from a small superficial laceration on the right side of his nose. When the accused was apprehended and interviewed by the police the following day, he readily admitted to assaulting the victim and stealing his wallet.

As it appears from the pre-sentence report prepared by the probation service, the accused told the probation service that he was sitting with his friends on the sea wall along the waterfront in Apia when the victim walked past along the sea wall. That was about 10pm. When the victim passed the bridge at Mulivai and was walking towards the dark behind the Government Building, he and his friends started to follow the victim and they found the victim and a girl sitting on that part of the sea wall behind the Government Building. The accused also told the probation service that one of his friends then snatched the wallet from the victim’s pocket and they ran away with it. Later the same night they spent the $90 that was in the victim’s wallet drinking at the bar of the Grabbers Club in Apia.

Even though there is no mention of an assault on the victim in what the accused told the probation service, I accept what is said in the prosecution’s summary of facts and confirmed by the accused, that the victim was assaulted. The accused’s contribution to the assault, as his counsel told the Court, involved two punches on the victim.

The victim

The victim is a 22 year old male from Vermont, USA. He is currently a student at the University of the South Pacific, Alafua campus. There is nothing else before the Court about him.

The accused

As it appears from the pre-sentence report, the accused is a 20 year old male from Lotopa. At the time of this offence he was staying with his maternal aunt and was no longer attending school. Since this offence the accused has been under the care of his natural father who is hard on him. The accused has also been re-enrolled as a student at Form 6 at Leifiifi College.

The accused has had an unstable upbringing as his parents parted company when he was very young. The accused was then left to the care of his maternal grandparents. Later in life he stayed with a maternal aunt at Lotopa. Since this offence, the accused has been taken under the care of his natural father and his wife who are very supportive of him.

It also appears from the pre-sentence report that prior to the present offence the accused had been attending Pesega College and his association with young men with previous convictions for criminal offences affected his behaviour. In consequence, he was expelled from that school as a result of drinking and smoking. However, it is said in the pre-sentence report that there has been a noticeable change in the accused’s behaviour since he was taken under the care of his natural father.

Some relevant circumstances to sentencing in robbery cases

Robbery is theft accompanied by violence or threats of violence usually on the victim. Thus robbery is often said to be not only a crime against property but also against persons.

In robbery cases, like the present one, which so often involve young offenders, the following circumstances are relevant for the purpose of sentencing:

(a) the offender’s age and whether he has a criminal history;
(b) was any weapon used, if so, the nature of the weapon;
(c) the nature of the actual violence or threats of violence used;
(d) the effect of the violence, actual or threatened, on the victim;
(e) was there any planning, if so, the degree of planning;
(f) the amount of money or the value of the property stolen;
(g) whether the victim was in a vulnerable position, for instance, a taxi driver, shopkeeper, or night-time takeaway operator;
(h) plea of guilty.

The above is not to be taken as an exhaustive list. Also see R v Henry et al [1999] NSWCCA 111, 113.

Mitigating circumstances

There are several mitigating circumstances in this case. These are the accused’s plea of guilty to the charge at the earliest opportunity, his relatively young age, and the fact that he is a first offender, his cooperation with the police, and the assistance he gave the police in identifying other persons said to be also involved in this offence. I also take into consideration what is said in the pre-sentence report that there has been a change in the accused’s behaviour since he has been taken care of by his natural father and that he is now back at school again. The testimonial from the principal of the school the accused is now attending speaks highly of the accused’s behaviour at school and of his academic performance.

Aggravating circumstances

This is really a case of street robbery of one individual by about three or four young men who jointly assaulted him and stole his wallet. The assailants then used the money that was in the victim’s wallet to drink at a bar. Even though the summary of facts does not say how the victim was assaulted and whether he sustained any injuries, it is clear the victim was assaulted. The medical report which was later produced by the prosecution after the summary of facts shows that the victim suffered a fractured nasal bone and a slight laceration on the right side of his nose.

I am also mindful of the fact that the victim is a foreigner and that for many years now the streets of Apia have been very safe for everyone even at night time.

The decision

Having regard to all the circumstances and all aspects of sentencing including the need for rehabilitation of the accused on one hand, the need for deterrence in this type of case, the accused is convicted and sentenced to 12 months of imprisonment. It will be for the police and prison authorities to make appropriate arrangements for the accused to attend to school while serving his sentence.

Before leaving this case, I wish to note that the Court does not have statutory power to suspend a sentence of imprisonment or part of it and I have taken that factor into account in passing sentence here. This is a matter the appropriate authorities would need to address by legislation as soon as possible.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Ameperosa Roma for the accused