Police v Aukuso [2007] WSSC 88 (26 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

LESI AUKUSO
male of Se’ese’e.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: M T Lui for prosecution
A Roma for accused

Sentence: 26 November 2007

SENTENCE

The charge

The accused appears for sentence on the charge of attempted robbery. Attempted robbery is an offence created by the joint operation of ss.27 and 92(1) of the Crimes Ordinance 1961. In terms of s.114 of the Ordinance, the maximum penalty is 5 years imprisonment. To the charge the accused pleaded guilty after engaging and consulting counsel.

The offending

The victims in this case are two males and three females all employed at Frankie’s Supermarket at Lotopa. On the night of 24 August 2006 at around 8:30pm, the victims who had been working closed up the supermarket and then got into a car which belonged to two of the victims to go home. Vau Niusila, one of the victims, got into the driver’s seat, another of the victims sat in the front passenger’s seat, while the others sat at the back seat. At that time the victims noticed two males sitting beside the road in front of the supermarket. When the car drove out of the gate, Vau Niusila who was driving stopped the car and got out to lock the gate and the front entrance of the supermarket. At that time, the other victim, Kiripati Meka, also got out from the back seat where he was sitting.

When Vau Niusila was walking back to the car after locking up, the two males who had been sitting beside the road approached the car. One of them was the accused. When the accused reached the car, he pointed a gun at Vau Niusila telling him to turn off the car or he will "blow his head off". At that moment Vau Niusila had gotten into the car while Kiripati Meka still had his door open and was standing just inside the door. Vau Niusila did not turn off the car but asked the accused what he wanted. The accused replied that he wanted money and then told the other male who was with him to throw the sack he was holding inside the car so that he victims could put their money in it. It must have been the daily sales takings of the supermarket that the accused had in mind. The victim Kiripati Meka then got into the car and closed his door. At that very moment Vau Niusila quickly drove the car away. The accused and his mate were taken by surprise and the accused discharged the gun hitting the rear of the car. On 25 October 2006, the accused was brought to the Apia Police Station where he was interviewed by the police.

The accused

As it appears from the pre-sentence report, the accused who is now 20 years old was 19 years at the time he committed the present offence. He is single, unemployed and lives with his mother at Se’ese’e. He finished primary school at year 8 and then stayed home and performed domestic chores as he refused to go on to secondary school. His mother told the probation service that the accused did not perform well at school as her other children did.

As the pre-sentence report also shows, the accused and his mate who was with him at the time the present offence was committed, had been drinking home brew the whole afternoon before they ended up in the evening near Frankie’s Supermarket at Lotopa to finish their home brew. The firearm in the possession of the accused belonged to a member of his village who had gone to New Zealand.

The accused’s previous conviction card shows that the accused had been convicted and sentenced in the District Court on 8 August 2007 to 6 months imprisonment for possession of an unlawful weapon and 18 months imprisonment for discharging a firearm. Both sentences were made concurrent. It appears from the pre-sentence report that both offences for which the accused has been convicted and sentenced in the District Court arose from the same incident as the charge of attempted robbery for which the accused is now appearing for sentence. So for present sentencing purposes, the accused should be treated as a first offender.

Impact of offending on victims

As it appears fro the prosecution’s sentencing memorandum, the consequences of the accused’s offending on the victims was fear by the victims for their lives at the time of the offending, the victims still fear that something of a similar nature will happen to them again and therefore constantly feel unsafe, and the victims also fear that the accused once free will come after them.

Aggravating features

The aggravating features in this case are the use of a firearm to try and obtain money and the impact of the offending on all the victims.

Mitigating features

The mitigating features in this case are: (a) the accused’s plea of guilty at the earliest opportunity after engaging and consulting counsel, (b) the accused’s expression of remorse to the probation service and through his counsel to the Court, (c) the youth and apparent immaturity of the accused, and (d) the fact that the accused is a first offender. It also appears from the prosecution’s sentencing memorandum that the accused has been helping with the police investigations against his co-offender and is a key witness for the prosecution in the case against this co-offender. Counsel for the accused also referred in his plea in mitigation to the co-operation the accused has given the police concerning his co-offender.

On the other hand, I do not consider the accused’s self-induced intoxication as a mitigating feature. Nor is the fact that he got no money out of his unsuccessful attempt a mitigating feature.

The decision

The sentence to be imposed depends on what is just and fitting in the circumstances of each case. Whilst sentences in comparable cases are a relevant consideration as providing guidance as to the types of sentences imposed in similar cases, it is the facts of the case at hand that are determinative.

Considering that the maximum penalty for attempted robbery is 5 years imprisonment, I will take 3½ years as the starting point for sentence. I will then deduct 1/3 for the guilty plea and that leaves 2 years and 4 months. I will deduct a further 9 months for the other mitigating features including the youth and apparent immaturity of the offender as well as his co-operation with the police regarding his co-offender. I will then add on 8 months for the aggravating features particularly the use of a gun. That brings the sentence back up to 2 years and 3 months.

The accused is convicted and sentenced to 2 years and 3 months imprisonment. As the concurrent sentences imposed in the District Court of 6 months imprisonment for possession of an unlawful weapon and 18 months imprisonment for discharging a firearm arose from the same incident, the sentence of 2 years and 3 months imprisonment is to run concurrently with the sentences already imposed in the District Court.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Roma’s Law Office