Police v Tulei [2012] WSSC 33 (23 March 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VAELUAGA TULEI male of Matautu, Lefaga, and Leone, Apia.
Accused

Counsel: T Toailoa for prosecution
Accused in person
Sentence: 23 March 2012

SENTENCE

The charges

1. The accused Vaeluaga Tulei aka Blood is a 30 year old male of Matautu, Lefaga, and Leone, Apia. He stood trial on two charges, namely, robbery which carries a maximum penalty of 10 years imprisonment under s.92 (1) of the Crimes Ordinance 1961 and assault with intent to rob which carries a maximum penalty of 5 years imprisonment under s.92 (3). He was found guilty of both charges and is now appearing for sentence.
   

The offending

2. On the evening of 19 May 2011, the victim was drinking at the Grabbers nightclub at Tauese in Apia. When the nightclub closed at 10pm, the victim left to go home. He went to his car which was parked along Beach Road. At that time, the accused was sitting on the seawall with about four other boys. As the victim was about to enter his car, he was punched by the accused who then locked the victim's hands behind his back while the other boys punched and assaulted the victim. These boys then took a cell phone and a wallet containing $200 from the victim's pockets. When passers by intervened to stop the assault, the other boys ran away. The accused then chased after them calling for the cell phone.
   
3. The victim was treated the same night for his injuries by a doctor at the hospital. He was found to have suffered a fractured jaw, swollen lips, a reddish eye, as well as abrasions to his face.
   

The victim

4. The victim is a 35 year old male. At the time he was assaulted, he was drunk as he had been drinking in the Grabbers nightclub. For a week it was difficult for him to eat because of his fractured jaw.
   

The accused

5. The accused was born in Samoa but migrated with his parents to New Zealand when he was 5 years old. He has a long list of convictions in New Zealand for offences he committed from 1996 to 2001. These convictions were for aggravated robbery, attempted aggravated robbery, assault, burglary, unlawful taking of a motor vehicle, shoplifting, as well as other offences involving dishonesty. In 2009, he was deported from New Zealand to Samoa. In November 2011, the accused appeared before Vaai J for possession of narcotics and was given a sentence of imprisonment.
   
6. The pre-sentence report on the accused shows that the accused had stayed with his aunt at Lefaga when he was deported from New Zealand. Not long before the present offences, he had moved to Apia and stayed with a relative at Leone. The accused's aunt expressed serious concern to the probation service about the accused's attitude and behaviour.
   

Aggravating factors

7. The present offending has no mitigating feature but only aggravating features. This offending was in effect a gang robbery. It is clear that there was an element of planning and pre-meditation involved. Even though the only assailant who has been charged is the accused, his co-assailants could also have been charged with robbery. The victim was also in a vulnerable situation as he was drunk, a fact that must have been apparent to the accused and the other assailants. The injuries sustained by the victim and the impact of those injuries on the victim, especially the fractured jaw, are also aggravating factors. So are the victim's properties that were stolen and the place where this offending took place.
   

Sentencing objectives

8. I accept the submissions by counsel for the prosecution that the sentencing objectives of deterrence and the protection of society should take priority in this case. I also accept what counsel for the prosecution says that a safe and secure environment should be maintained for the public areas in Apia where the community go out to socialise and enjoy themselves. The streets of Apia should also be safe for everyone. It is very unfortunate that the incidence of robbery committed in the centre of Apia at night is again on the rise.
   

The decision

9. I deal with the charge of robbery first. Having regard to the maximum penalty of 10 years imprisonment for robbery, the need for deterrence and the protection of society, as well as the aggravating factors relating to the offending, I will take 3 years as the starting point for sentence. There is no mitigating factor relating to the accused as offender. I therefore make no deduction on that basis. There is, however, an aggravating factor relating to the accused as offender. This is his many previous convictions in New Zealand which involved the use of violence and dishonesty. In this regard, the Judge should be cautious about increasing a sentence on the basis of previous convictions to such a high level that the sentence gives the impression that the accused is being punished twice for the same offences for which he has already been punished. This will not be right. However, I accept the submissions by counsel for the prosecution that most of the accused's previous convictions show a personal predilection for committing offences involving the use of violence or dishonesty or both.
   
10. For the accused's previous convictions I will increase the sentence by 7 months. That brings up the starting point for sentence to 3 years and 7 months. The accused is therefore sentenced to 3 years and 7 months imprisonment on the charge of robbery.
    
11. For the charge of assault with intent to rob, the accused is sentenced to 2 years imprisonment. Both sentences are to be concurrent. The accused will therefore serve a total sentence of 3 years and 7 months imprisonment. The time the accused has spent in custody from December 2011 pending the outcome of this matter is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General Office, Apia, for prosecution