Police v Sailo [2012] WSSC 91 (22 October 2012)

SUPREME COURT OF SAMOA

Police v Sailo [2012] WSSC 91

Case name: Police v Sailo

Citation: [2012] WSSC 91

Decision date: 22 October 2012

Parties:
THE POLICE v SAILO SAILO, male of Vaitele-uta and Gautavai, DEREK FALEIVA, male of Vaitele-uta and Sataoa Safata and UALESI UALESI, male of Vaitele-fou and Saleaula

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution
Defendants unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

SAILO SAILO, male of Vaitele-uta and Gautavai

First Defendant

AND:

DEREK FALEIVA, male of Vaitele-uta and Sataoa Safata.

Second Defendant

AND:

UALESI UALESI, male of Vaitele-fou and Saleaula.

Third Defendant

Counsel: Ms L Taimalelagi for prosecution

Defendants unrepresented

Sentence: 22 October 2012

SENTENCE

The police summary of facts which all defendants have admitted states that the first defendant Sailo Sailo is a 20 year old male of Vaitele-uta and Gautavai, single and currently assists his father at home with construction work. The second defendant Derek Faleiva is a 20 year old also of Vaitele-uta and Sataoa Safata and was at the time of this offending employed by a local company. The third defendant Ualesi Ualesi is a 21 year old male also of Vaitele and Saleaula was unemployed and stays home rendering the usual services a young man does.

The first defendant is not a novice to the court arena. He appeared in 2008 with others on burglary related charges. His father confirmed to the court this morning that he had served community hours as a result of that offending. The second defendant is a first offender. He has no police record. Bu the third defendant like the first is a re-offender and he has a previous conviction in February of this year for theft. On that occasion he was placed on probation for 6 months and ordered to undertake community service hours. As well he was ordered to pay a substantial sum in restitution with an imprisonment default penalty if not paid before 30 June this year. I do not know if that sum of $1,400 restitution has been paid.

The complainant in this case is a 31 year old male of Vaitele-uta and Avao in Savaii and is currently employed at a survey firm in Vaitele-uta. He appeared before the court this morning and placed before the court a plea for leniency for the defendants and confirmed that all the items stolen by these young men have been recovered by him. Along similar lines was a petition placed before the court this morning by Sailos father on behalf of not only his son but all defendants. Seeking leniency on these young men.

The police summary of facts states that on Saturday 04 August this year at about 11:00 pm at night, the complainant was walking home after purchasing some goods from a store at Vaitele-uta. He met up with the defendants who whistled and called out to him. As a result he stopped and engaged the defendants in conversation. While he was talking to them, the defendant Sailo punched him on the jaw causing him to fall to the ground. All defendants then punched and kicked him while he was on the ground. And they removed his pants and walked away leaving him half naked on the ground. Inside his pants was his cell-phone, charger, some cigarettes and about $28.

The matter was reported to the police that same evening and within a day or two the defendants were apprehended. They were interviewed and all admitted to being part of the robbery of the complainant and have pleaded guilty to that offence which carries a 10 year maximum penalty at law.

I am bound to say this is not the first and probably will not be the last case of this kind of robbery coming before the court. And this sort of mindless behaviour by young men of robbing defenceless people late at night is becoming more and more prevalent. It is the sort of situation coming before the courts far too much. It is usually alcohol related and here the defendants admitted to the probation office they were drunk at the time they carried out the robbery. Well if your parents have not told you gentlemen that is no excuse for anything. All actions have consequences. You engage in this sort of criminal behaviour you will be caught. And you will be held accountable for your actions.

I will deal firstly with the first and third defendants who are re-offenders. It is clear you have failed to learn from your previous experience. I am sure your families are most disappointed in you. You have been given a chance by the justice system. You did not take it. It is now time to step up the action. A deterrent penalty is required as a lesson in life to you and to other young men who may be thinking of behaving in such inexcusable fashion.

You will both serve imprisonment penalties which will reflect the aggravating and other factors of your offending. An appropriate term is 12 months in prison. But I am going to discount that in the following manner. Firstly, for your guilty plea, that shows to the court your remorse and has saved the courts time, I discount one-third of that term. That is a period of 4 months leaving a balance of 8 months. From that 8 months I will deduct a further 2 months because of what the complainant told the court this morning. That leaves a balance of 6 months.

For the offence of robbery you will both be convicted and sentenced to a period of 6 months in prison. To be followed by 12 months of supervision with the following special terms;

(i) no alcohol of any form including home brew;
(ii) not to be found in any place where alcohol is sold or within 50 feet thereof;
(iii) you will abide by a 6:00 pm to 6:00 am curfew. Unless you are outside of your home with either your parents or for some purpose approved by the probation officer;
(iv) a further condition is you are not to associate with each other because that is what got you before this court. Or associate with any one else the probation office forbids you to associate with;
(v) and finally you will attend any rehabilitation program or other programmes as directed by the probation office.

Other terms of your probation will be explained to you by the probation officer in due course.

Ua malamalama ile faaiuga o le lua mataupu Sailo ma Ualesi? (Defendants indicated they understood).

The third defendant has an additional matter that he has to deal with. As stated previously Ualesi you have a previous conviction requiring the payment of restitution. You are therefore going to be referred to the District Court list for tomorrow morning at 10:00 am for the court to determine if the restitution that was ordered has been paid. If it has not been paid then the District Court may wish to review that part of its sentence given the provision of section 16(2) of the Community Justice Act.

Ua maea ona totogi le vaega tupe lena pe leai? (defendant said he already paid restitution). Ua iai se risiti o ia oe poo le tou aiga? (defendant submitted receipt to the Probation office). Ia o le a taatia atu la i le ofisa faanofo vaavaaia e faamanino le tulaga lena. A faapea ua maea ona totogi, ia o le faaiuga foi la lena o le mataupu. Ae a faapea e le’i totogia e tatau ona toe ave oe i luma o le Faamasinoga Faa-Itumalo e toe fai seisi fuafuaga iai i le vaega lena. Ua e malamalama? (defendant indicated he understood).

That leaves the second defendant who is a first offender. Derek my advice to you is you better hang with better company. My second advice to you is you are going to be given a chance today because this is your first offence. An imprisonment sentence is in my assessment not required for this foolish action you did. Ae afai Derek e te le faaoga le avanoa lea ua tuu atu i le asō, ia na e silasila i le tulaga e oo iai pe a toe aumai oe i seisi ituaiga mataupu faapenei. Ua e malamalama? (defendant indicated he understood).

In respect of this matter the second defendant will be convicted and placed on 12 months supervision on the same conditions as the co-defendants. The further condition is that he will undertake 50 hours of community service. O le tamaitai lea e alala mai o le ofisa faanofo vaavaaia masalo e faamalamalama atu i lau susuga ia nisi tulaga o lau faanofo vaavaaia. Ua e malamalama? (defendant indicated he understood). E te toe tula’i i luma o le faamasinoga i se mea faapea pe leai? (defendant said no). Ia savali i au upu Derek.

.........................
JUSTICE NELSON