Police v Kennach [2006] WSSC 62 (30 November 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

NORRIS KENNACH
male of Lotopa, Se’ese’e and Salani, and
JOHN NG LAM aka IOANE AH LAM
male of Lotopa.
Accused

Counsel: K Koria for prosecution
Both accused in person

Sentence: 30 November 2006

SENTENCE

The charges

The accused are jointly charged with a friend under s.92 of the Crimes Ordinance 1961 with two counts of robbery each of which carries a maximum penalty of ten years imprisonment and under s.91 of the same Ordinance with one count of unlawful conversion of a motor vehicle which carries a maximum penalty of five years imprisonment. To the charges both accused have pleaded guilty at the earliest opportunity. Their friend has pleaded not guilty and his trial is pending. What is said here is, of course, not fact against the accused’s friend.

The offending

The prosecution presented two summaries of fact, one in respect of each accused. The facts for the purpose of sentencing are taken from both summaries of fact.

In respect of the first charge of robbery, the summaries of fact show that on Wednesday evening, 4 January 2006, the accused and their friend went to a house at Alafua. When they arrived there, they went around to the back door. The occupant of the house ("the first victim") heard some noise from the back door of his house and went to see who was making the noise. It was then, according to the summaries of fact, that the accused’s friend punched the first victim causing him to fall to the ground. While the first victim was on the ground, the accused’s friend punched him again and then tied his hands behind his back.

The accused then went about ransacking the house and looking for valuables. The accused Norris Kennach found a black wallet with lots of money in it. He told the Court that in his estimation the total amount of money in the wallet was not less than $400. The wallet was given to the accused’s friend. The accused John Ng Lam told the Court that he found $400 on a table and took it. There is no evidence that any of this money was recovered.

The accused and their friend then left the first victim on the floor in his house with his hands still tied behind his back and took the keys to the first victim’s Nissan Pathfinder vehicle valued at $20,000 and drove the vehicle to the Motootua National Hospital. They abandoned the first victim’s vehicle there and caught a taxi back to Apia. The vehicle was later recovered by the first victim and a friend from one of the parking lots at the hospital.

As it appears from the pre-sentence reports on both accused, the money was spent on drinking beer and alcohol and enjoying themselves with their friend.

In respect of the second charge of robbery, the summaries of facts show that on Friday evening, 10 February 2006, the accused and their friend were at the Grabbers nightclub in Apia drinking some beers. At about 10pm, the accused and their friend left the Grabbers nightclub and made their way along the seawall towards the town clock. While walking along the seawall, the accused and their friend came across the second victim who was also walking along the seawall. The accused Norris Kennach then punched the second victim causing him to fall to the ground. Norris Kennach then punched the second victim again before taking his wallet which contained about $1,000. The accused John Ng Lam then ran up and took the second victim’s Nokia cellular phone valued at $300. The accused and their friend then went to MacDonalds and bought some food before they went home.

The victims

The first victim is a 62 year old male from the United States but residing at Alafua. The second victim is a 33 year old male from Japan working in Samoa as a JICA volunteer.

From the report prepared by the first victim in relation to the robbery of his home and unlawful conversion of his vehicle, he says that he suffered discomfort and bruises to his face as he was punched twice in the face.

The first victim has been left deeply traumatized by this incident. He now feels very insecure in his own home and has asked a Samoan family to stay with him. He has also bought a dog to patrol his property and he is now more cautious of people around him as a result of this incident. He feels very apprehensive every time he hears unrecognized noises outside his house and his sleep patterns have been greatly affected.

There is no victim impact assessment report on the second victim.

The accused

The accused Norris Kennach is a male from the villages of Lotopa, Se’ese’e and Salani. He is 20 years old. He is presently serving a sentence of 12 months imprisonment on a different charge of robbery. According to the pre-sentence report, that sentence is being served at the newly established Juvenile Centre at Olomanu in Mulifanua.

The robbery for which this accused is serving a sentence of imprisonment was committed by the accused on 11 March 2006 on another foreigner, an American student attending the University of the South Pacific, Alafua campus. My sentencing remarks in that case are shown in Police v Kennach [2006] WSSC 35 (6 June 2006). What happened there was that the accused with other persons assaulted the victim on the seawall behind the Government Building in Apia and took the victim’s wallet containing $90 cash and two credit cards. The money was spent on drinking beer at the Grabbers nightclub in Apia. At the time the accused was sentenced for that robbery, this Court was not aware of the other two charges of robbery to which the accused had pleaded guilty and for which he is now appearing for sentence with his co-accused John Ng Lam. Thus I treated the accused Norris Kennach as a first offender on that occasion even though the charges of robbery and unlawful conversion for which he is now appearing for sentence were committed prior to the charge of robbery for which he was sentenced on 6 June 2006.

The personal circumstances of this accused are set out in Police v Kennach [2006] WSSC 35 (6 June 2006). Essentially they show that 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 and later in life he came to stay with his maternal aunt at Lotopa. It was during that time he attended school at Pesega College. His association with young men with convictions for criminal offences affected his behaviour and in consequence he was expelled from school for drinking and smoking. It appears that drinking then became a problem for the accused.

Since the commission of these offences and the accused was apprehended by the police, the accused has been taken under the care of his natural father. His father has been strict on disciplining the accused and according to the first pre-sentence report on the accused there has been a noticeable change in his behaviour since he was taken under the care of his natural father and his present wife who are very supportive of him. The accused has been re-enrolled as a student at Leifiifi College and he has pleaded with the Court to allow him the opportunity to attend school. In view of the further charges on which the accused is appearing again for sentencing, I have decided that this matter would be best left to the discretion of the prison authorities at the newly established Juvenile Centre. Even though the Court has not been given much information about the newly established Juvenile Centre, its purpose is to provide a separate penal institution for young offenders to keep them separately from adult and hardened criminal offenders so that there is a better chance for their rehabilitation. Presumably, there are special programmes to be provided at the new Juvenile Centre for the rehabilitation of young offenders like the present accused. I recommend that this accused should continue to serve his present sentence and any other sentence to be imposed in this case at the Juvenile Centre.

The accused John Ng Lam is also a male from the village of Lotopa. He is 18 years old. According to his pre-sentence report he comes from a broken up family. His parents divorced when he was very young. His mother then left and this accused grew up in his father’s family at Lotopa with his father, paternal grandmother and uncles. The accused left school at an early age. He does not work but hangs around with other youths. In 2004 he was charged and convicted of theft and burglary and was placed on probation for 12 months. The special conditions of his probation were that he was to refrain from alcohol consumption, to reside with his sister at Faatoia, and not to associate with other youths. However, the accused did not remain with his sister at Faatoia but moved around and he also did not show up on the last day of his probation. This accused told the Court that he has been in custody for 9 months.

Mitigating circumstances

In respect of the accused Norris Kennach, his plea of guilty at the first available opportunity is a mitigating factor. Being a youth also entitles him to some leniency. However, the seriousness of the charges and the fact that he is not really a first offender anymore are also to be taken into consideration. I also take into consideration in this connection the accused’s personal circumstances as set out above.

In respect of the accused John Ng Lam, I take into consideration his plea of guilty to the charges against him as a mitigating factor. His young age also entitles him to some leniency. I also take into consideration his personal circumstances as set out above.

Aggravating circumstances

In identifying the aggravating circumstances of this case, it is to be borne in mind that the accused are jointly charged with a friend with two counts of robbery and one count of unlawful conversion of a motor vehicle. What occurred was a joint enterprise which they all participated as parties. With that in mind there are a number of aggravating circumstances.

In relation to the robbery and unlawful conversion committed on 4 January 2006 at Alafua, the aggravating circumstances are:

(a) the nature of the violence that was inflicted on the first victim which consisted of two punches and the tying up of the first victim’s hands behind his back;
(b) the total amount of money that was taken from the house of the first victim was not less than $800 and there is no evidence that any of that money was recovered;
(c) the first victim was left on the floor of his house with his hands tied to his back while the accused and their friend drove away in the victim’s Nissan Pathfinder vehicle which was later abandoned at a parking lot at the Motootua National Hospital;
(d) the effect of the actions by the accused and their friend on this 62 year old victim as already set out which shows that what happened has engendered fear and a deep feeling of insecurity in the victim and, therefore, potential psychological harm to him; and
(e) this incident must also have caused great fear, mental anguish and emotional distress to the first victim at the time it happened.

In relation to the second robbery which was committed on 10 February 2006 on the seawall at Apia, the aggravating circumstances are:

(a) the nature of the violence that was inflicted on the second victim which consisted of two punches delivered by the accused Norris Kennach, the first punch causing the second victim to fall down and the second punch while the victim was still down;
(b) the amount of money that was taken by Norris Kennach from the victim was about $1,000 while the accused John Ng Lam took the victim’s Nokia cellular phone valued at $300 and there is no evidence that the money or the cellular phone was recovered; and
(c) the streets and seawall of Apia for many years now have been very safe for anyone to walk on and enjoy himself or herself even at night time, but the actions by the accused have the potential effect of ruining that by making members of the public, particularly foreigners, fearful of taking and enjoying a walk along the streets and seawall of Apia at night time.

Both victims of the two robberies in this case are foreigners and that is also an aggravating factor. Some of these foreigners are in Samoa to be of assistance which is the case in respect of the second victim who is a Japanese national here in Samoa as a JICA volunteer. Some foreigners come as tourists which is beneficial to the general economy of the country. Robbing such people of their money or personal items of property will not be in the best interests of the country in terms of its development and it should be discouraged.

The decision

In passing sentence in this case, there are three matters I wish to mention first. In sentencing young offenders, considerations of rehabilitation usually take priority over other considerations such as retribution and deterrence. However, the seriousness of the offending may justify the Court to conclude that notwithstanding the young age of the offender, imprisonment is the appropriate sentence to impose. Secondly, even though the accused are jointly charged, the Court in passing sentence has to have regard to the respective culpability of each accused. And thirdly, the Samoan Courts still have no statutory power to suspend an imprisonment sentence in whole or in part.

Norris Kennach

In weighing the mitigating and aggravating circumstance in respect of the charges against the accused Norris Kennach the following sentences are imposed.

On the charge of robbery committed at Alafua on 4 January 2006, this acused is convicted and sentenced to 2½ years imprisonment. On the charge of unlawful conversion of a motor vehicle arising from the same incident he is convicted and sentenced to 12 months imprisonment. These sentences are to be concurrent.

On the charge of robbery committed on the seawall at Apia on 10 February 2006 where the sum of $1,000 was taken by this accused from the victim, he is convicted and sentenced to 2 years imprisonment. This sentence is to be cumulative on the sentence imposed on the robbery committed at Alafua on 4 January 2006.

In imposing this sentence of 2 years imprisonment on the accused Norris Kennach for the robbery committed on the seawall in Apia on 10 February 2006, comparison should be made with the robbery committed by the same accused on the same seawall on 11 March 2006. Two matters distinguish the robbery of 10 February 2006 from the robbery of 11 March 2006. The first is that when I sentenced this accused on 6 June 2006 for the robbery committed on 11 March 2006, I gave him credit for being a first offender as I was not made aware at that time that he had also been charged and pleaded guilty to the two charges of robbery for which he is now being sentenced. Secondly, the amount of money that was taken from the victim of the robbery of 11 March 2006 was $90 whereas about $1,000 cash and a cellular phone valued at $300 were taken from the victim of the robbery of 10 February 2006.

So the sentence of 2½ years imprisonment for robbery and 12 months imprisonment for unlawful conversion of a motor vehicle which both arose from the incident at Alafua on 4 January 2006 are to be concurrent. But the sentence of 2½ years imprisonment for that robbery is to be served cumulatively with the sentence of 2 years imprisonment for the separate robbery committed on 10 February 2006 on the Apia seawall. Both those sentences are also to be served cumulatively with the sentence of 12 months imprisonment that this accused is currently serving for the robbery he committed on 11 March 2006. In other words this accused will serve a total of 5½ years in prison.

John Ng Lam

On the charge of robbery committed at Alafua on 4 January 2006, the accused John Ng Lam is also convicted and sentenced to 2 ½ years imprisonment. On the charge of unlawful conversion of a motor vehicle arising from the same incident, he is convicted and sentenced to 12 months imprisonment. The two sentences are to be concurrent.

On the separate and distinct charge for the robbery committed on the seawall at Apia on 10 February 2006, this accused, given that extent of his culpability, is convicted and sentenced to 10 months imprisonment. This sentence is to be served cumulatively with the sentence of 2 ½ years imprisonment for the robbery committed at Alafua on 4 January 2006. This accused will serve a total of 3 years and 4 months in prison. The period during which he has been in custody pending sentence is to be deducted from his total sentence.

As both accused in this case are young offenders, one would expect that they will serve their sentences at the newly established Juvenile Centre at Olomanu in Mulifanua. One would also hope that with the special programmes for rehabilitation to be provided at the Juvenile Centre these young offenders will gain maturity to see the errors of their ways.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution