Police v Roache [2007] WSSC 22 (4 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE

Prosecution

AND

JUNIOR ROACHE

male of Lotopa.

Accused

Counsel: L M Su’a for prosecution
J Stowers for accused

Sentence: 4 April 2007

SENTENCE

Sapolu CJ

The charges

The accused appears for sentence on one charge of robbery which carries a maximum penalty of 10 years imprisonment and one charge of unlawful conversion of a vehicle which carries a maximum penalty of 5 years imprisonment. The accused initially pleaded not guilty to the charges against him but subsequently changed his plea.

The offending

According to the summary of facts which has been admitted by the accused, on Wednesday evening, 4 January 2006, the accused and two male friends of about the same age as himself, went to the house of the victim at Alafua. When they arrived there, they went around the house to the back door. The victim who was inside the house opened the back door to see who was making noise behind his house. When the back door was opened, the accused punched the victim in the face causing the victim to fall on the floor of his kitchen. While the victim was on the kitchen floor, the accused punched him again. The accused then tied the hands of the victim behind his back. He also gagged the victim while threatening to kill him if he screamed.

The accused’s friends then went about ransacking the house looking for valuables to take. They found a black bag on the table which contained money and some other items. The accused took $400 from the bag and put it in his pocket while his friends took the remaining money. The money stolen by the accused and his friends from the victim was about US$1,200, AUD$3,000 and $400 tala.

After taking the money, the accused took the keys of the victim’s Nissan Pathfinder which valued at $20,000 and left the premises leaving the victim tied up and gagged on the kitchen floor of his house. It was the accused who was driving the vehicle. They went to the Motootua Hospital where they abandoned the vehicle in a car park and caught a taxi back to town.

The accused

The accused is now 20 years old but was 19 years old at the time this offence was committed in January 2006. As it appears from the pre-sentence report, he is unemployed and lives with his uncle at Lotopa as his mother passed away when he was 14 and soon thereafter his father migrated to Hawaii. It also appears from the pre-sentence report that after the accused’s father migrated to Hawaii and made no further contact with the accused, the accused became rebellious and started spending a lot of time mixing and drinking with his friends. It is a sad fact that so many of the young offenders that appear before this Court for sentence come from broken or dissolved families.

In 2004 when the accused was 17 years old, he was convicted of causing wilful damage and throwing stones for which he was sentenced to a term of 12 months probation. From the accused’s previous conviction card, it appears that alcohol was involved in the commission of those offences. It also appears from the pre-sentence report that the accused did not respond well at all to his probation and his family sort of neglected him. Then in 2005 the accused was convicted of burglary and theft and was sentenced to 8 months imprisonment. The accused is now appearing before the Court again on the more serious charge of robbery coupled with the unlawful conversion of a vehicle.

The victim

The victim is a 62 year old male from the USA but now living at Alafua. As it appears from the victim impact report prepared by the Attorney General’s Office, the victim suffered bruises to his face as a result of the punches by the accused. He also suffered grave discomfort from being bound up and gagged while lying helpless on his kitchen floor for a significant period of time. The victim has been left deeply traumatized by what happened to him. When he was interviewed for the preparation of the victim impact report, he was obviously having difficulty in overcoming the events that had occurred to him. Because of those events, the accused now feels very insecure in his own house and has asked a Samoan family to stay with him. He has also bought a dog to patrol his property. He now feels very apprehensive every time he hears unrecognised noises outside his house and his sleep patterns have been greatly affected by the trauma.

Sentences passed on the accused’s friends

An important and relevant factor for the purpose of the sentence to be imposed on the accused is the sentences that this Court has already imposed on the accused’s friends in November last year. For the robbery committed upon the victim, each of the accused’s friends was sentenced to 2½ years imprisonment and for the unlawful conversion of the victim’s vehicle each of them was sentenced to 12 months imprisonment. Those sentences were made concurrent. See Police v Kennach and Ng Lam [2006] WSSC 62.

In terms of culpability, it is clear that the degree of criminality of the accused’s actions was much greater than that of his friends. It was the accused who actually assaulted the victim by punching him twice, the first punch causing the victim to fall on his kitchen floor and the second punch while the victim was already on the floor. The accused then tied the victim’s hands behind his back, gagged the victim, and threatened to kill the victim if he screamed. It was also the accused who took the keys of the victim’s vehicle and drove it to the Motootua Hospital where it was abandoned in a car park.

Mitigating features

The only mitigating feature in this case for which I will give limited credit is the accused’s delayed plea of guilty. As the accused is a repeat offender, I will refrain from treating his youth as a mitigating feature. Obviously, the youth of the accused must have been given much weight when he first appeared in Court in 2004 and was placed on probation. However, the accused has not redeemed himself. This is his third Court appearance for sentence in a criminal matter.

Aggravating features

There are several aggravating features in this case. These are:

(a) the use of violence upon the victim,
(b) the second punch by the accused was delivered when the victim was already on his kitchen floor,
(c) the threat to kill the victim if he screamed,
(d) the tying up and gagging of the victim,
(e) the leaving behind of the victim in that condition when the accused and his friends left in the victim’s vehicle,
(f) the total amount of the money stolen,
(g) the fact that this offence was carried out inside the victim’s own house,
(h) the impact of the offending on the victim including the physical and psychological harm suffered by the victim,
(i) the age of the victim,
(j) the fact that the previous convictions of the accused are recent and involved theft and the use of violence, and
(k) the part played by the accused in the unlawful conversion of the victim’s vehicle.

The decision

Parity in the sentences imposed on co-offenders is an important consideration unless some disparity is justified in the circumstances. In this case, the degree of culpability of the accused is much greater than that of his friends. This should be reflected in the sentence to be imposed on the accused. The accused also has previous convictions for crimes which involve theft and the use of violence. He also made a delayed plea of guilty. It also appears that it was the accused who played the leading role in this offending. Taking into account those matters together with the other aggravating features referred to, the accused is convicted and sentenced to 3 years and 10 months imprisonment on the charge of robbery and 2 years imprisonment on the charge of unlawful conversion of a vehicle. Both sentences are to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Stevenson’s Lawyers for accused