Police v Aliimatafitafi [2012] WSSC 86 (20 July 2012)

SUPREME COURT OF SAMOA

Police v Aliimatafitafi [2012] WSSC 86

Case name: Police v Aliimatafitafi

Citation: [2012] WSSC 86

Decision date: 20 July 2012

Parties:
POLICE v SEMISI ALIIMATAFITAFI, male of Lalovaea, Faleasiu and Matautu-uta

Hearing date(s): 19 July 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms R Titi and F E Niumata for prosecution
Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

SEMISI ALIIMATAFITAFI, male of Lalovaea, Faleasiu and Matautu-uta

Second Defendant

Counsel: Ms R Titi and F E Niumata for prosecution

Defendant unrepresented

Hearing: 19 July 2012

Decision: 20 July 2012

ORAL DECISION AND SENTENCE OF NELSON J

1. The defendant in this matter is jointly charged with one Eti Atonio that at Leone on the 25 February 2012 they did rob Elisara Fata a male of Moataa and Afega of a bicycle. The evidence establishes that on that morning at approximately 7:00 am the complainant was on his way home from work on a bicycle borrowed from his cousin at Moataa. At Leone Bridge he came across the drunken defendants on their way home after a night of drinking with friends.
2. The defendant Eti crossed the road flagged down the complainant and asked him for a match. He also grabbed the handle bars of the bike preventing the complainant from leaving and began aggressively questioning the complainant. At one point he swore at the complainant who saw that Eti was in possession of a small knife. This naturally alarmed the complainant. When the defendant crossed the road to where the two men were standing the complainant pleaded with the defendants but in the end wisely decided to let them have possession of the bicycle. Two defendants got on the bicycle and rode off. The complainant followed for a short distance before losing them on the road. He reported the theft to the police. The complainant said and the defendant confirmed this in his oral evidence to the court that the defendants were strangers to him.
3. The evidence shows that the bicycle was later that morning involved in a collision with a car following which the defendant Eti sold it to an unknown third party for $50. He gave $20 of this money to the defendant.
   
4. After his options were explained to him the defendant elected to give sworn testimony. He said that he had nothing to do with the theft and that it was Eti who took the bike. When he crossed the road to see what was happening Eti told him they now have transport home. So the two of them got onto the bicycle and rode off. He sat on the chair of the bicycle while Eti stood and did the peddling. Subsequently the bike ridden by Eti alone was involved in an accident and Eti sold the bike and gave him $20 of the $50 sale monies. He maintained no plan had been made by them to steal the bike and that he thought Eti was only borrowing the boys bike.
   

Decision

5. I accept there is no evidence there was a prior plan by the defendants to steal the complainants bicycle. I also accept that these events occurred at Leone and not Vaisigano bridge as insisted upon by the defendant. That morning the two drunks were walking home and at the bridge they saw the complainant riding his bicycle. The defendant Eti saw an opportunity and he seized it. Clearly he was the instigator and main offender in this matter. He crossed the road and stopped the complainant. He was in possession of a small knife which the complainant said was used to threaten him. By placing his hands on the handle bars, he prevented the complainant from leaving the scene. He was also the one who had a verbal exchange with the complainant while the defendant was on the opposite side of the road.
   
6. If the defendant had stayed on his side of the road and not become involved he would not have been party to Etis actions. But the defendant did not, he chose to cross the road and when the complainant saw him coming as well this completed the robbery scenario. And caused the complainant to surrender possession of the bicycle to the two defendants. In crossing the road and jumping onto the bike and riding off the defendant made himself a party to the robbery. It makes no difference who sat where or who peddled. Both defendants took different actions but were involved one way or another in taking of the bicycle and both rode off on the bicycle. That makes them equally liable for the robbery of the bicycle. The defendants subsequent actions in accepting part of the sale proceeds for the bicycle as admitted by him in his evidence compounds his involvement in this matter.
   
7. I will not accept that the defendant thought Eti was borrowing the bicycle. There was nothing in what was said and done by the parties to indicate this was a borrowing as opposed to a robbery. The defendants were strangers to the complainant. No one in his right mind would lend his bike to a drunken stranger who flagged him down on the road in the early morning hours. There is no reason for the defendant to believe that was what was happening. I find the defendant was party to this robbery the charge against him is proven beyond reasonable doubt.
   
8. As to an appropriate sentence I note from the file the defendant has relevant previous convictions including one for robbery in 2011 for which he was sentenced to a term of imprisonment. Its clear the defendant has learnt nothing from that past experience and the likelihood of his re-offending is high. In the circumstances a probation report will not be required for Semisi.
   
9. The defendant says that he will never do this again. But your record Semisi tells me otherwise. Robbery carries a 10 year maximum jail term. Considering the value of the item stolen which was subsequently sold by you and your partner in crime and considering all the circumstances of this matter a 1 year term of imprisonment is appropriate for what you did. But as you have heard from the courts decision you played a lesser role in this robbery. I will therefore reduce the sentence accordingly to reflect the lesser role that you played. You will be convicted and sentenced to 6 months imprisonment. Your remand in custody time awaiting trial which amounts to about 3 months is to be deducted from that.
   
10. The defendant also pleaded not guilty to a second charge namely that on the 14th of April 2012, he did rob Ioane Peato a male of Tufulele of a cell phone valued at $2,500. I heard no evidence as to the value of the cell phone but is clear it was a touch screen kind of phone and was therefore an item of significant value.
    
11. The complainant in that matter said that he first met the defendant during a drinking session behind the Government building on Saturday, 14 April 2012. After the session broke up he was walking home with his cell phone in his back pocket. Unknown to him the defendant was following him. The rest of the drinking group having disbursed and gone their separate ways. In front of the National Bank Building opposite the RSA Club he was surprised when someone yanked the phone out of his back pocket. He turned around and saw it was the defendant and asked him to give his phone back. He said the defendant laughed at him and told him that if he tries anything he will break the phone and punch him in the mouth. He also said that despite pleas as he followed the defendant all the way down to past Mcdonalds and past Pinatis Restaurant and beyond the defendant refused to return the phone and kept repeating his threat. The complainant eventually gave up and sought police assistance. The evidence established that the complainants phone was subsequently recovered and returned to him.
    
12. In this case the defendant chose not to give sworn evidence but made a dock statement denying the offending and claiming that he went straight home after the drinking session completed. He is suggesting the complainant has made all these things up. I note however that in cross examining the complainant he made no such suggestion to the defendant. Neither did he cross examine the complainant as to the identity of the perpetrator of the theft if it was not him. His questions were directed to other details of this matter.
    
13. Semisi there is no reason for me to doubt the complainants evidence. His identification of you was acceptable and solid. The charge against you is also proven beyond reasonable doubt.
    
14. Again Semisi the fact of this matter showed a repetition of conduct similar to what you did one about a month earlier at the Leone Bridge in being party to robbery of a bicycle. Ana faapea o le taimi muamua lea ua molia mai ai oe i le solitulafono lea Semisi atonu e maua se tulaga e mafai ona fai ai se avanoa mo oe. Ia leaga o lea e atagia mai e le na’o le mataupu lea i Leone a’o lea foi e aumai i faamaumauga a leoleo sa e falepuipui i le tausaga lea na te’a atu nei i solitulafono a lenei e tasi o le fao mea. E leai la se avanoa e mafai ona tuu atu e le faamasinoga pe a faapea o le tagata e molia mai lava i le solitulafono e tasi, ae maea mai le falepuipui, sau foi toe fai. It is clear that this defendant is a threat to society and his record confirms that. But he puzzles me because you know you are a smart guy, you are just using your brains in a very poor fashion. You should be aware Semisi that every time you do this sort of thing now the penalties will invariably get larger and larger. The solution to your problem is stop robbing people. Because you will always get caught.
    
15. A deterrent sentence is appropriate for this matter. A 2 year period is in the circumstances quite justifiable. But I have just sentenced you to a term of imprisonment and I will exercise some leniency. Because it is a separate offence and the term must be cumulative to the term for the previous offence. Applying the principle of totality of sentence I will reduce the 2 years to one year. You are convicted for this matter and sentenced to 1 year in prison cumulative to the previous term of imprisonment.
    

............................

JUSTICE NELSON