Police v Senio [2007] WSSC 61 (27 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

IOANE SENIO and TOEASO SENIO
males of Toamua
Accused

Counsel: L M Su’a for prosecution
Accused in person

Sentence: 27 July 2007

Sapolu CJ

SENTENCE

The charge

The two accused appear for sentence on one count of robbery which carries a maximum penalty of 10 years imprisonment. Both of them pleaded guilty at the earliest opportunity.

The offending

The two accused are brothers, the accused Ioane Senio being an ‘adopted brother’ of the accused Toeaso Senio. Both are single and from the village of Toamua. At the time of this offence the accused Ioane Senio was working as a casual labourer for Strickland Brothers at Vaitele. The accused Toeaso Senio was also working for Strickland Brothers but it is not clear what he was doing. The victim is a 79 year old male. He was also working as a security for Strickland Brothers at Vaitele at the time of this offence. So the two accused and the victim were all working for Strickland Brothers at the time of this offence.

Close to midnight on Friday night, 4 May 2007, the victim who was working as security at the premises of Strickland Brothers turned off the light of his room and lay down to sleep. He was taken by surprise when someone sat on him while another person held his neck. When he felt one of these persons reaching into his pocket he was able to kick off the person who had been sitting on his stomach. When that person fell off, the person who was holding the victim’s neck let go and they ran away. Because they ran towards a light, the victim was able to recognise them as people he worked with. They were the two accused. It was discovered that the accused had taken from the victim’s pocket $3 as well as his torch valued at $35.

The pre-sentence reports on both accused show that the accused told the probation service that they had been drinking beer on the evening of Friday, 4 May 2007. The accused told the Court that they were drinking behind the Pepsi factory at Vaitele not far from the premises of Strickland Brothers. Whilst drinking, they formed a plan to rob the victim because they needed money to buy some more beer. So they went and robbed the victim. As the accused were employees of Strickland Brothers, they must have known that the victim was very old and that he would be on duty by himself at the premises of Strickland Brothers.

The accused Ioane Senio

According to the pre-sentence report on the accused Ioane Senio, this accused told the probation service that his life has been complicated and in a mess since his parents were divorced when he was only 5 years old. He was then placed under the care of his aunt. However, things did not go smoothly with him while under the care of his aunt. When he was 18 years old, he was placed under the care of his mother’s brother at Toamua. That is where he has been living up to now. The pre-sentence report also shows that this accused is a drop out from school. Since this incident, he has been unemployed.

According to the pre-sentence, this accused told the probation service that his ‘father’ (his mother’s brother) and grandmother had apologised for him to the victim. However, when the probation service visited the victim, he denied that the accused’s uncle and grandmother had come to apologise to him.

This accused is a first offender.

The accused Toeaso Senio

As it appears from the pre-sentence report on the accused Toeaso Senio, everything was fine with this accused until his parents separated in 2002. This accused then dropped out of school. He stayed home and do family chores. He then found employment with Strickland Brothers. Since this incident he has been unemployed. His family relies on remittances from his sister who lives and works in American Samoa.

This accused showed remorse to the probation service. His father told the probation service that he and his elderly mother had apologised to the victim for what had happened. However, when the probation service visited the victim he denied that the accused’s father and grandmother had come to him to apologise. It seems that in respect of both accused, the father has not been telling the truth.

This accused is also a first offender.

Aggravating features

The aggravating features of this case are the old age of the victim, his vulnerability and there was some pre-planning involved.

Mitigating features

The pleas of guilty by the accused at the earliest opportunity and the fact that they are first offenders are mitigating features in this case.

The decision

If this was a case of straightforward theft I would have considered a non-custodial sentence given the very small amount of money and the insignificant value of the torch that were stolen. The accused also did not inflict any injury on the victim. The plan to rob the victim also came up when the accused who had been drinking behind a nearby factory needed money to buy some more beer. The accused who worked with the victim must also have known that the victim who was only a security would not be the sort of person with a lot of money on him. The accused also ran away when the victim resisted. I consider the offence in this case to be towards the lower end of the scale when compared to other robbery cases that have come before this Court. In Sentencing in Tasmania (2002) 2nd ed by Professor Warner, the learned author explains at p.336.

"[Single] counts of aggravated robbery attracted custodial sentences in 83% of case and sentences ranged from 3 months to 5 years with a median of 12 months. Robbery attracted custodial sentences ranging from 1 month to 2 years 6 months, with a median of 9 months. About half of the sentences were wholly or partly suspended. Bag snatching tended to attract sentences in the lower half of the range and robberies of banks and credit unions were in the top half of the range. Where the robbery is aggravated by injuries to the victim, sentences towards the top of the range have been imposed. In Burden [2000] TASSC 14, an 18 year old with one prior conviction, executed a plan to snatch the bag of an elderly fruit and vegetable proprietor, who was known to be likely to be in possession of about $15,000. She resisted and was hospitalized for several days with a dislocated elbow and fractured arm. An effective sentence of 2 years and 8 months with 12 months suspended was held by the Court of Criminal Appeal not to be manifestly inadequate...A sentence of 2 years for robbery was upheld by the Court of Criminal Appeal in Bryant (1992) for the robbery of a shopkeeper where the applicant pretended he had a gun and stole $1,615. Matters justifying a sentence of this length included a degree of premeditation, the fairly large amount of money stolen, the fact the shopkeeper was tied up and left immobilised and he committed the offence while he was on bail for an earlier robbery...In Reeves (1983) a sentence of 12 months was regarded as appropriate where the appellant (aged 21 with previous convictions including one for assault) and his younger brother befriended a visitor and took advantage of his inebriation by taking him to a reserve, assaulting him and robbing him of $160."

Having regard to the gravity of the offending which is towards the lower end of the scale as well as the aggravating and mitigating features, each of the accused is sentenced to 6 months imprisonment. In arriving at this sentence, I have also taken into account the need for deterrence in this type of case as well as the accused’s prospects of rehabilitation.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution