Police v Luamanu [2011] WSSC 103 (28 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SAMAOSO LUAMANU male of Fagaee and Salelologa.
Accused

Counsel: T Toailoa for prosecution
A Su'a for accused

Sentence: 28 September 2011

SENTENCE

The charge

1. The accused stood trial on one count of robbery under s.92 of the Crimes Ordinance 1961. He was found guilty and he now appears for sentence.

The offending

2. On Wednesday morning 12 January 2011, shortly after 9am, the accused entered the premises of the Ink Patch Monetary Transfer (Ink Patch) situated in the Blue Bird Mall at Salelologa under the pretext of changing some foreign money he had. He was wearing a long sleeved army shirt, knee length cargo pants, dark sunglasses, and a black cap which covered his ears and the back of his head and neck. He also had a moustache and a beard from his chin to his lower lip which had been trimmed short and thin. He was also carrying a bag described by some prosecution witnesses as an ato faafafa and by other prosecution witnesses as an ato asoa. At that time, the Ink Patch had just opened for business for about half an hour and there were two female employees working in it.

3. The accused gave his foreign money to one of the employees who passed it on to her more senior employee to change into Samoan money. At that time, the accused moved over unsuspectingly to that employee and put a gun on the left side of her forehead. The gun was about the length of a forearm. He threatened her to tell the other employee not to scream for help or she would die. This employee obeyed out of fear for her life. The other employee did not scream for help because of her love for her colleague and fear for herself. The accused then ordered the employee against whom he was holding the gun to lock the front door and switch off the lights. She obeyed. The accused then asked for the cash of the Ink Patch. The other employee out of fear and distress went and got the three cash boxes which contained the Ink Patch's money and emptied them into the bag the accused had brought with him.

4. The accused then ordered the employee at whose head he was holding the gun to remove her clothes. This employee cried and pleaded with the accused if she could leave her top on but she would take off her lavalava. She then reluctantly took off her lavalava. The accused then told the other employee to take the lavalava and throw it outside at the back. That employee also obeyed out of fear. During all this time the telephone at the Ink Patch was ringing continuously but the accused had ordered the two Ink Patch employees not to pick up the phone.

5. The accused then ordered the employee at whose head he was holding the gun to open the front door. She again obeyed. The accused then escaped with the Ink Patch money in his bag. At that time, the two female employees were just crying.

6. As it appears from the evidence that I had decided to accept, the accused after the robbery took a taxi to Tuasivi. That might have been the time that he hid away the money that he stole and the gun that he used because the police did not find the money or the gun on the accused. He then caught a bus at Tuasivi to come back to Salelologa to catch the 10am ferry to Mulifanua. However, when the bus arrived at the Salelologa wharf there were a number of police officers on the wharf. At that time, the police had already been alerted to the robbery at the Ink Patch. The accused then changed his mind and did not get off the bus but went back in the bus to the Salelologa market where he was later arrested by the police the same morning.

7. As it was shown from the evidence, the total money that was stolen by the accused consisted of US$1,850, NZ$2,280, and $11,639.30 in Samoan currency. None of that money has been recovered.

The accused

8. According to the pre-sentence report, the accused is a 39 year old male from the village of Salelologa. He is no stranger to the law. He has two previous convictions for theft, one previous conviction for unlawful conversion, one previous conviction for obtaining credit by fraud, two previous convictions for escape from lawful custody, one previous conviction for throwing stones, and one previous conviction for possession of narcotics. This is a bad record. It shows that the accused had first come up against the law when he was about 18 years old. Since that time, he has been up against the law from time to time.

9. The accused also displayed no remorse when he gave evidence. Every prosecution witness whose evidence was inconsistent with some aspect of the accused's evidence was labeled by the accused as mistaken or not telling the truth even though no reason was shown as to why the prosecution witnesses would come and give mistaken or untruthful evidence about the accused to the Court. This matter was also adjourned twice because the accused said that he had witnesses in Savaii he wanted to call. However, when the accused's brother in Savaii was contacted by defence counsel to find those witnesses and bring them over to Apia for the trial no assistance whatsoever was forthcoming from the accused's brother. The prosecution also offered to assist by getting the police in Savaii to find those witnesses but the police could not find any of them. The only reasonable conclusion is that those people do not exist. When the accused was also interviewed by the probation service during the preparation of the pre-sentence report he strongly maintained his innocence.

10. There is certainly no redeeming feature in favour of the accused in this case.

Aggravating factors

11. There are a number of aggravating factors in this case relating to the offending. These are (a) this is a case of the armed robbery of a money transfer business which suggests that the accused's motive was the large potential gain that was likely to ensue from robbing the Ink Patch; (b) the evidence shows that a high degree of pre-meditation and planning was involved in this case; (c) the use of a weapon, namely, a gun together with the accompanying threats must have caused the two employees who were the immediate victims extreme fear and trauma; (d) the psychological harm those victims must have suffered; (e) the consequential feelings of insecurity and loss of confidence this type of offending would cause not only to the immediate victims but to other employees of financial institutions who work in similar situations; (f) the sexual mistreatment by the accused of one of the immediate victims when he threatened her to take off her clothes which forced her to remove her lavalava; and (g) the financial loss to the Ink Patch which was the other immediate victim of this robbery as none of the stolen money has been recovered.

12. The aggravating features of this case relating to the accused as the offender are (a) his apparent lack of remorse, (b) his misleading the Court about the witnesses he wanted to call when evidently no such people exist, and (c) his previous convictions especially the ones involving dishonesty.

The decision

13. The approach of this Court to sentencing in the case of an armed robbery of a financial institution has already been discussed in Police v Robert Newman Chong Nee [2007] WSSC 102 and Police v Faiga Victor Tanielu [2011] WSSC 2 which involved gang armed robbery of a bank. Imprisonment would be the normal sentence. Considerations of retribution and deterrence as well as the need for protection of society will take priority over all other considerations in this type of offending. I take those considerations into account in setting a starting point for sentence in this case. At the same time I also have to take into account the maximum penalty for robbery which is 10 years imprisonment.

14. Having regard to the sentencing considerations of retribution and deterrence as well as the need for protection of society, the maximum penalty of 10 years imprisonment for robbery, and the aggravating factors relating to the offending, I take 7 years as the starting point for sentence. There are no mitigating factors relating to the offending. To the starting point of 7 years I will add 6 months for the aggravating factors relating to the accused as offender, namely, his misleading the Court about his witnesses and his previous convictions. That brings the sentence up to 7½ years. There are also no mitigating factors relating to the accused as offender.

15. Sentencing is, of course, not an exact science. What really counts at the end is that the Court must arrive at a sentence that is fair and just having regard to all the relevant circumstances.

16. The accused is convicted and sentenced to 7½ years imprisonment. The period of time during which he has been remanded in custody is to be deducted from that sentence.

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CHIEF JUSTICE

Solicitor
Attorney-General's Office, Apia for prosecution
Tamati Law Firm for accused