Police v Tanielu [2011] WSSC 2 (21 January 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

FAIGA VICTOR TANIELU
male of Vaimoso, Falelauniu and Vaitele.
Accused

Counsel: L Su'a-Mailo and L Taimalelagi for prosecution
T Leavai for accused

Sentence: 21 January 2011

SENTENCE BY SAPOLU CJ

The charges

1. The accused Faiga Victor Tanielu is jointly charged with three co-accused with the offence of robbery under s.92 of the Crimes Ordinance 1961 which carries a maximum penalty of 10 years imprisonment. He is also individually charged with the offence of being armed with a dangerous weapon without a lawful excuse under s.25 of the Police Offences Ordinance 1961 which carries a maximum penalty of 12 months imprisonment. The accused had pleaded not guilty but was found guilty of both charges after trial.
   

The offending

2. The facts of this matter have already been set out in my sentencing decisions in Police v Nazario Chong Nee (sentence passed on 30 July 2010) and Police v Robert Chong Nee (sentence passed on 19 October 2010). The particular facts in relation to the accused have also been dealt with in my written judgment dated 7 December 2010 where I found the accused guilty of both charges against him.
   
3. Essentially, what happened in this case is that on Thursday morning 8 April 2010 at about 8:30am, the accused and his three co-accused Shane, who has passed away, Nazario and Robert set out from Nuu in a white taxi driven by Shane with the intention of robbing the branch of the Westpac bank at Vaitele-tai. All of them were wearing long-sleeve shirts, long pants, and Ninja-like facial disguises said to have been supplied by Shane. When they arrived at the bank, Shane remained in the taxi, which was clearly intended to be the getaway vehicle, whilst the accused Nazario, and Robert got out and walked to the bank. At that time, the accused was holding a machete, Nazario was carrying a backpack, and Robert was armed with a fake gun.
   
4. When the three men got inside the bank, the co-accused Robert pointed the gun at the two bank employees Tausulu and Christopher who were starting to load money cassettes into the bank's ATM machine and demanded that they dropped the money. Out of shock and extreme fear for their lives the said bank employees dropped the money onto the floor. The co-accused Nazario then loaded the money into the backpack he was carrying. The accused Faiga on the other hand jumped at the said Tausulu pointing the machete at her and as Tausulu was moving back the accused continued to point the machete at her in a threatening manner. The accused also waved the machete in a threatening manner at the other bank employees who were present. The accused then went behind the tellers counters, pulled out the drawers, and grabbed the money inside the drawers. At that time, Christopher and Ulavale, the two bank employees who were hiding under the counters out of extreme fear for their lives were thinking that they might not see their parents again. The witness Justin who was doing the banking for the Lotto Samoa said that the man with the machete entered the bank and grabbed his banking which was on the counter.
   
5. The co-accused Nazario and Robert then ran out of the bank and jumped into the taxi. They thought the accused was following them. When Nazario and Robert got inside the taxi a man who was nearby ran over and smashed the rear windscreen of the taxi with the handle of an axe. The taxi immediately took off leaving behind the accused who was still inside the bank.
   
6. The total amount of money estimated to have been stolen from the bank by the accused and his co-accused is $227,605. Of the amount of $78,000 that has been recovered, $3,325 was recovered from the accused.
   

The accused

7. The accused is a 30 year old male of Vaimoso, Falelauniu, and Vaitele-uta. He is single and unemployed. His mother passed away in 2000. His father then re-married and the accused has not had contact with him for years. At the time of this offending, the accused was living alone in a relative's house at Vaitele-uta.
   
8. The pre-sentence report shows that the accused had finished school at Year 11. He was then employed in various jobs mainly doing labour work. He was dismissed from his jobs because of fights he was involved in with work mates. The accused's mother passed away ten years ago and he has been drifting along in the association of friends. He became self-employed and at the time of his present offending he was doing elei printing and carving from which he was earning $300. The accused had represented Samoa in the sport of taekwondo in the 2007 South Pacific Games held in Samoa and has also received a diploma from the Rhema Bible College.
   
9. The accused has two previous convictions in 2001 for causing actual bodily harm without lawful justification.
   
10. The accused also expressed deep remorse by kneeling before the Court seeking mercy and forgiveness.
    

Aggravating factors

11. There are several aggravating factors in this offending which not only increase its overall gravity but the accused's individual culpability. These aggravating factors have been set out in my sentencing decision in Police v Robert Chong Nee (sentence passed on 19 October 2010) and may be restated as follows: (a) this is not a case of robbery of an individual or private home but the armed robbery of a bank; (b) the motive of the accused and his co-accused in targeting the bank was obviously the large potential gain that will ensue; (c) the accused and his co-accused were disguised in such a way not only to conceal their true identities but to increase the degree of fear and intimidation upon their immediate victim's who were the bank employees and any customers in the bank; (d) the use of weapons, namely, a gun (though a fake one) and a machete also had the same effect on the immediate victims and undoubtedly was intended to make the bank employees comply without resistance with the demands by the accused and his co-accused; (e) the great trauma and distress to the immediate victims; (f) the consequential feelings of insecurity and loss of confidence not only to the immediate victims but to other bank employees who have to work at front counters; and (g) the very large amount of money that was stolen from the bank.
    
12. Another possible aggravating factor in the case of gang armed robbery is the involvement of more than one person all acting together for a common unlawful purpose. It is likely to be less frightening and less formidable to be confronted by only one robber than to be confronted at the same time by several robbers.
    

12. Participation in the planning and preparation of a robbery is also an aggravating factor. However, like his co-accused Nazario and Robert, the accused says that the planning of this robbery was done by the co-accused Shane who also provided the getaway car, weapons, and clothing that were used. Whether that is true or not, the accused was evidently an active participant in the execution of the plan to rob the bank given the evidence by the prosecution witnesses about the actions of the man with the machete inside the bank.

13. In this case, none of the immediate victims suffered physical harm, but because of the trauma and extreme fear for their lives that they experienced the possibility of psychological harm cannot be ruled out. This is notwithstanding the absence of reports on the psychological conditions of the immediate victims as a result of the robbery. In this connection, counsel for the prosecution cited from the sentencing guideline judgment of Hulme J in R v Henry Barber [1991] NSWCCA 111 where His Honour said in paras 323, 324:

"323. Some impact on the victim is specifically referred to in the statutory provisions. But it is also important to bear in mind that it is an essential element in every robbery that the victim will be put in fear of an offender and what that offender might do. After all it is the engendering of that fear which it is the offender's intention and by which he is able to carry out his subjection of the victim or his will.

"324. In many cases the fear will be of imminent death with the concomitant loss of all that life holds and everything the victim holds dear. Experience of life and experience within the Courts demonstrates that not all person's readily recover from such traumatic events. In other cases the fear may not be extreme and in not all cases will it continue to have an impact or significant impact on the victim after the threat causing it is removed. Not all people react to circumstances of stress in the same way. However, as I indicated above when referring to R v Broxam, R v Bell, and R v Stefaravski, the potential devastating psychological damage consequent on armed robberies is something of which the Courts have taken judicial notice over many years."

14. The accused, as earlier mentioned, also has two previous convictions in 2001 for crimes which involved the use of violence.

Mitigating factors

15. The only factor that can be described as mitigating in the accused's favour is his expression of remorse. As the accused pleaded not guilty, there is no discount for a guilty plea.

The decision

16. For the purpose of sentencing and in the interests of consistency, I will take 7 years as the starting point as I did in Police v Nazario Chong Nee (supra) and Police v Robert Chong Nee (supra). Having regard to the accused's expression of remorse and his personal circumstances on one hand as well as his two previous convictions in 2001 for causing actual bodily harm, on the other hand, I will adjust that starting point down to 6 ½ years. Sentencing, of course, is not an exact science.

17. The accused is convicted and sentenced to 6 ½ years imprisonment for robbery. For the offence of being armed with a dangerous weapon without a lawful excuse, the accused is sentenced to 6 months imprisonment. Both sentences to be concurrent. The time that the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

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