Police v Toa and Alatise [2013] WSSC 62 (29 July 2013)

SUPREME COURT OF SAMOA

Police v Toa and Alatise [2013] WSSC 62

Case name: Police v Toa and Alatise

Citation: [2013] WSSC 62

Decision date: 29 July 2013

Parties:
POLICE (prosecution) and VESTER TOA male of Vaimea and Nofoalii and PETER ALATISE male of Vaimea

Hearing date(s):

File number(s): S798/13 and S799/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
O Tagaloa for prosecution
Accused in person

Catchwords:
Sentence, robbery , aggravated robbery, assault with intent to rob, aggravating and mitigating factors, starting point approach,

Words and phrases:
Legislation cited:
Crimes Act 2013
Crimes Act 1961 [NZ]
Crimes Ordinance 1961

Cases cited:
Police v Enosi Lipa (2013)
R v Galey [1985] 1 NZLR 230
R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372
Police v Sawej Viliamu (2013)
Rondell v New Zealand Police [2008] NZHC 626

Texts
Adams on Criminal Law (1992) vol 1, para CA 235.05

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

S718/13

BETWEEN

P O L I C E

Prosecution

A N D

VESTER TOA male of Vaimea and Nofoalii and PETER ALATISE male of Vaimea.

Accused

Counsel: O Tagaloa for prosecution

Accused in person

Sentence: 29 July 2013

S E N T E N C E

The charges

1. The two accused Vester Toa (Vester) and Peter Alatise (Peter) appear for sentence on one joint charge of robbery under s.176 of the Crimes Act 2013 and one joint charge of assault with intent to rob under s.179 (2) of the Act. The maximum penalty for robbery under s.176 is 10 years imprisonment. Likewise, the maximum penalty for assault with intent to rob under s.179 (2) is 10 years imprisonment. The accused pleaded guilty to both charges at the earliest opportunity.
2. The accused are actually jointly charged with a co-accused. But that co-accused has not appeared and a warrant for his arrest is still outstanding.
3. It would appear that there is some absence of total clarity regarding the appropriate provisions of the new Crimes Act 2013 under which the present charged have been brought. Section 176 which provides for the offence of robbery states:

“(1) Robbery is theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.

“(2) A person who commits robbery is liable to imprisonment for a term not exceeding 10 years”

4. Section 177 which provides for the new offence of aggravated robbery then states:

“A person is liable to imprisonment for a term not exceeding 14 years who:

(a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person; or
(b) being together with any other person or persons, robs any person; or
(c) being armed with any offensive weapon or instrument, or anything appearing to be such a weapon or instrument, robs any other person”.

5. Section 179 which now separately provides for the offence of assault with intent to rob then states:

“(1) A person is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person:

“(a) causes grievous bodily harm to that person or any other person; or

“(b) being armed with any offensive weapon or instrument, or anything appearing to be such a weapon or instrument, assaults that person or any other person or any other person; or

“(c) being together with any other person or persons, assaults that person or any other person

“(2) A person who assaults any other person with intent to rob that other person or any other person is liable to imprisonment for a term not exceeding 10 years.

6. The offending in this case consisted of a joint assault on the victim by the accused including their alleged co-accused against whom a warrant of arrest has been issued. The accused used only their bare hands and fists to assault the victim and then stole his money. No offensive weapon or instrument or anything appearing to be such was used. The victim did not sustain any grievous bodily harm. In these circumstances, the accused should perhaps have been charged with aggravated robbery under s.177 (b) which provides that any person is liable to a maximum term of imprisonment of 14 years who “being together with any other person or persons, robs any other person” and with assault with intent to rob under s.179(1)(c) which also provides that any person is liable to a maximum term of imprisonment of 14 years who “being together with any other person or persons, rob any other person.” Anyhow, even if the charges had been brought under ss.177(b) and 179(1)(c), that would not have altered the sentences that I have decided to impose in this case.
7. In relation to s.235 (1) (b) of the Crimes Act 1961 (NZ) which is in similar terms to s.177 (1) (b) of our Crimes Act 2013, Adams on Criminal Law (1992) vol 1, para CA 235.05 states:

“The words ‘together with any other person or persons’ means that the offence requires proof that the accused was part of a joint enterprise by two or more persons. There will be sufficient participation if the accused joins a co-offender in the infliction of force on the victim, or by words or conduct participates in the making of threats of violence. Presence at the robbery, even if it amounts to aiding or abetting the robber, without such active participation in the robbery, is not sufficient for the offence under s.235, although it may suffice for liability as a party to robbery under s.234; R v Galey [1985] 1 NZLR 230”.

8. Another matter is that while the maximum penalty for robbery under s.176 is 10 years imprisonment, the maximum penalty for assault with intent to rob under s.179 (2) is also 10 years imprisonment. One would have thought that robbery is a more serious offence than assault with intent to rob because with robbery there is theft accompanied by the use of violence or threats of violence whereas with assault with intent to rob there is no theft but simply violence or threats of violence with the requisite intent. Under s.92 of the Crimes Ordinance 1961, this distinction between robbery and assault with intent to rob is reflected by the difference in their maximum penalties. In terms of s.92 (2), the maximum penalty for robbery is 10 years imprisonment and in terms of s.92 (3), the maximum penalty for assault with intent to rob is 5 years imprisonment. Incidentally, I have noticed from Adams on Criminal Law (supra) that under the Crimes Act 1961 (NZ) the maximum penalty for robbery is 10 years imprisonment whereas the maximum penalty for assault with intent to rob is 7 years imprisonment. In the present case, the prosecution has also sought a higher sentence for robbery than for assault with intent to rob.

The offending

9. It was early Saturday morning, 8 June 2013. It was around 5am. It was not yet daylight. The 61 year old victim was taking a walk along that part of the seawall behind the Government Building and the Central Bank Building in the center of Apia. He was surprised when three drunken young men approached him and held him. As it turned out two days later, these were the accused and their alleged co-accused against whom a warrant has been issued for his arrest.
10. One of the accused grabbed the victim’s hand and asked him if he had any money. When the victim said he had no money, he told the victim “I will ask you one more time”. He then threw the victim onto the seawall and began to punch him. The other accused jumped in and searched the victim’s pockets. He found $30 and took it. The accused and their co-accused then took the money and fled the scene leaving the victim on the seawall.
11. Unknown to the accused and their co-accused the victim had recognised them. This was because the victim had often seen them hanging out at one of the stalls at the Fugalei market which belongs to a friend of his. The victim was able to find out through his friend the names of the accused and their co-accused and reported them to the police on Monday 10 June 2013. The accused and their co-accused were arrested by the police the same day.
12. As it appears from the presentence report, the accused Vester told the probation service that he, the accused Peter, and their co-accused started drinking two large bottles of vodka around 9pm on Friday night on the seawall behind the Central Bank which is next to the Government Building. They were still drinking by the early hours of Saturday morning when the victim walked by on the seawall. This was when the alleged robbery occurred.

The victim impact report

13. According to the victim impact report, the victim who is 61 years of age felt pain when he was punched on the right eye by one of the accused. Since this incident, the victim fears for his safety when he walks around Apia by himself. He also gets paranoid sometimes when he goes for his morning walks on the seawall. The victim also says in the victim impact report that $30 was stolen from him by his assailants and none of that money has been recovered.
14. For the purpose of the starting point for sentencing approach, the adverse impact of the offending on the victim is an aggravating factor that relates to the offending, not to the offender. It is therefore relevant to the setting of the starting point for sentence when taking into account the aggravating factors relating to the offending.

The accused

15. As the pre-sentence report shows, the accused Vester is a 20 year old male of Taufusi. He is single and is currently unemployed. He was brought up by his grandmother when his parents separated when he was 12 years old. He attended college up to Year 9 but was expelled from school when he was found smoking in the school compound. He then stayed at home doing family chores. He later found a job as a groundsman but then quitted that job as he felt he was being underpaid. At the time of this offending he was unemployed. He is a first offender.
16. The accused Peter, as shown from his pre-sentence report, is a 20 year old male from Vaimea. He is single and works at his uncle’s mechanical engineering business where he gets paid $20 a week. He comes from a family with a low financial background. This had led him to leave school at the primary level. Peter told the probation service that he smokes and drinks while his mother told the probation service that her son is a responsible, hardworking, helpful and humble person in their family. This accused is also a first offender.

The aggravating and mitigating factors

17. To determine the extent of the criminality of a particular offending, this Court has repeatedly said that reference must be had to the aggravating and mitigating factors relating to the offending. The aggravating factors relating to the offending in this case are: (a) this was a joint attack by three young men on a 61 year old man, (b) the victim was on his own in a vulnerable situation, (c) the degree of violence applied by the accused, (d) the amount of money stolen by the accused, and (e) the impact of this offending on the victim as set out in the victim impact report to which I have already referred. The other aggravating factor relating to this offending that should be mentioned is the place where it occurred. The seawall along the coastline of Apia which extends behind the Government Building and the Central Bank Building is like a public place where many people take their early morning and evening walks as a form of exercise. However, too often, than it should have been, cases of robbery, theft, and sexual offences are brought before the Court from the same area of the seawall where this offending took place. This is of some concern.

Discussion

18. In this case, I have decided to impose on each accused a short term of imprisonment to be followed by a term of supervision. In other words, a custodial and non-custodial sentence. However, in Police v Sawej Viliamu (2013) ( SC No. S673/13; judgment delivered on 12 July 2013) and Police v Enosi Lipa (2013) ( SC No. S8026/13; judgment delivered on 29 July 2013) it was pointed out that the starting point for sentencing approach is appropriate where the sentencing Judge is mindful of imposing a custodial sentence but it is not appropriate where the sentencing Judge is mindful of imposing a non-custodial sentence. As I have decided in this case to impose a short term of imprisonment on each accused to be followed by a term of supervision, the question arises whether the starting point for sentencing approach derived from R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 is appropriate in this kind of situation. The question has not arisen before in our Courts and no Samoan case has addressed this issue. In Rondell v New Zealand Police [2008] NZHC 626, para [12], Asher J said:

“It must be acknowledged that rigid adherence to the R v Taueki sentencing approach may not be easily achieved where the appropriate sentencing outcome straddles a number of custodial and non-custodial sentencing options. The R v Taueki approach is most easily followed where a single kind of finite sentence, such as imprisonment or home detention, is the only likely outcome”

19. I have not been able from the time available to prepare this decision to consider in depth the question posed. I will therefore leave it open for another case.
20. In passing sentence, I take into account the maximum penalty for robbery, the aggravating factors which define the extent of the criminality of the offending, and the need for deterrence. Considerations of deterrence are important not only for the protection of members of the community who use the Apia seawall for their early morning and evening walks but also because of the number of cases coming before the Court regarding offences, particularly robbery, committed against some of those people.
21. I also take into account the fact that the accused are young offenders and that they pleaded guilty at the earliest opportunity. Considerations of rehabilitation are relevant because of the young age of the accused and because they are first offenders with their future still ahead of them. The accused need rehabilitation but if they are left to themselves that will be difficult if not impossible to achieve. They need expert supervision and counselling. Perhaps their parents also need expert advice.
22. Each of the accused Vester and Peter is therefore sentenced to 4 months imprisonment to be followed by 7 months supervision in accordance with s.12 of the Community Justice Act 2008. Any time that any of the accused has already spent in custody is to be deducted from his sentence of imprisonment.
23. For the charge of assault with intent to rob, this seems from the circumstances of this case to have been brought by the prosecution as an alternative charge to the charge of robbery. It is, therefore, unnecessary to pass sentence on the charge of assault with intent to rob as the accused had also pleaded guilty to the charge of robbery and sentenced on that charge.
    

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution