Police v Mafi [2015] WSSC 17 (9 March 2015)

IN THE SUPREME COURT OF SAMOA
Police v Mafi [2015] WSSC 17

Case name:	Police v Mafi
Citation:	[2015] WSSC 17
Decision date:	9 March 2015
Parties:	POLICE (prosecution) v BARRY MAFI (accused)
Hearing date(s):
File number(s):	S243/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Sentenced to 12 months supervision with conditions imposed on the accused during the term of his supervision: - (a) stay with his maternal aunt at Vaivase-uta unless otherwise directed by the probation service - (b) placed under home curfew from 7:00pm in the evening to 7:00am in the morning unless for health reasons he has to be taken to the hospital or elsewhere for treatment outside those hours; and - (c) attend the Teen Challenge Programmes and counseling as directed by the probation service. -
Representation:	R Titi and B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	Aggravated robbery – aggravating and mitigating features relating to the offending –degree of planning and preparation – threats and intimidation – impact of the offending –unprovoked attack - personal circumstances - sentence – conditions of supervision
Words and phrases:
Legislation cited:	Crimes Act 2013 s.177 (b)
Cases cited:	Enoka v R [2012] NZCA 157 Police v Faatau and Alaimanu [2014] WSSC 75; R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272; Sika v R [2011] NZCA 374;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S243/15

BETWEEN

P O L I C E

Prosecution

A N D

BARRY MAFI male of Fagalii and Vaivase-uta.

Accused

Counsel: R Titi and B Faafiti Lo-Tam for prosecution
Accused in person

Sentence: 9 March 2015

S E N T E N C E

The charge

1. The accused Barry Mafi is 17 years old. He was jointly charged with a co-offender aged 15 years with the offence of aggravated robbery under s.177 (b) of the Crimes Act 2013. Because of the age of the co-offender, the charge, insofar as it relates to him, was transferred to be dealt with by the Youth Court. The accused has remained in this Court and has pleaded guilty to aggravated robbery at the earliest opportunity. The offence carries a maximum penalty of 14 years imprisonment.

Offending

2. As shown from the prosecution’s summary of facts, on 10 January 2015 at about 1:00am, the accused and h is co-offender were at the seawall behind the Government Building at the Eleele Fou in Apia. At the same time, the victim and a female friend were having something to eat at the tables along Beach Road opposite the Chan Mow supermarket. The victim’s friend then walked off to find a rest room behind the Government Building while the victim remained at the tables with their food. The victim became worried when his friend had not returned for some time. He then packed up his backpack and food and walked with his flash light to the back of the Government Building to find his friend. He shone his flash light in front of him to light his path as he looked for his friend at the back of the Government Building. As the victim approached the seawall side of the grounds behind the Government Building, he saw a few silhouettes run out from under a bushy area. The victim took little notice of those people as he was interested in looking for his missing friend.
3. The victim then heard a glass smash behind not far from where he was standing. He turned around and called out to whoever was there to come out as he was looking for help to find his friend. The victim then felt someone come up from behind him and grab his left hand and held it firmly behind his back. This person was short and had a pony-tail hair style. As it appears from the pre-sentence report on the accused, that person was the accused. That person also felt around the victim’s pockets and reached into the victim’s left side rear pocket of his shorts and removed his wallet which contained his work payslip and $6.00 in coins. At the same time, the victim saw another person who was tall and dark pull his backpack off his shoulder and running through his backpack pulling items out and throwing them on the ground. As it appears from what the accused told the probation service, this person must have been the co-offender. Another person who was tall and dark then came over and took victim’s food. This must have been the mate of the accused and the co-offender.
4. As all of this was happening, the victim asked his attackers to have mercy on him and not to harm him. Two of the attackers, who appear to have been the accused and his co-offender, then told the victim to leave in case he gets hurt. The victim’s attackers then walked off. The victim on the other hand went straight to the Apia police station and reported this incident to the police.
5. The pre-sentence report on the accused shows that the accused and his co-offender had been in the RSA club. When the RSA was closed, they went with a mate to the back of the Government Building and hang out on the seawall. That was when they saw the victim walking towards them. The accused said that he and his co-offender then approached the victim. He grabbed the victim’s wallet from his pockets while his co-offender unzipped the victim’s backpack and took the food that was inside. The accused also told the probation service that their mate who was with them then took from him the victim’s wallet and went away with it.

The accused

6. The accused as earlier mentioned is 17 years of age. He is from Fagalii-tai and Vaivase-uta. As shown from the pre-sentence report, the accused left school at Year 10 as he felt school was not the place for him. His maternal aunt at Vaivase-uta has raised and looked after him for practically all his life because his parents separated when he was still very young. The accused’s aunt told the Court and the probation service that the accused is a good and reliable kid but his problem is that he likes the company of other youths and hangs out with them. As a result, the accused has ended up in his present situation. However, she pleaded with the Court for a second chance for the accused to mend his ways and turn a new leaf.
7. At the time of this offending, the accused assisting his aunty with her food stall at the Toleafoa market at Fugalei. He told the probation service that he sleeps and lives for most of the time at his aunty’s food stall. This reflects no parental supervision and guidance for this young lad. The accused also told the probation service that because he has no form of income he was hungry and exhausted from his night out with the co-offender. So they resorted to committing this offence.
8. The accused is a first offender. He is presently in custody since 10 January 2015. He told the probation service that he cannot apologise directly to the victim as he has been in police custody since the night of this incident and does not know where the victim lives.

The victim

9. The victim’s is 41 years of age. Even though the victim impact report shows that he did not sustain any physical injuries from this incident, it appears that he has been psychologically affected. He told the Office of the Attorney General that this incident has affected how he lives. He has trouble sleeping at night and he is now scared to walk around at night time. After work, he tries to rush home and he is always looking behind him in case he gets attacked again. He also cannot forget what happened to him.

Aggravating features relating to the offending

10. The cases of Police v Faatau and Alaimanu [2014] WSSC 75; R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272; Sika v R [2011] NZCA 374; Enoka v R [2012] NZCA 157; were concerned with charges of aggravated robbery with comments on sentencing on street robbery. The present case is not a case of a street robbery. But in R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272 [35] – [46], Gault J, in delivering the judgment of the New Zealand Court of Appeal, stated in [35] that the sentencing discretion extends across the range from non-custodial sentences to the maximum of imprisonment for 14 years. His Honour then set out in [36] – [46] what he considered to be the aggravating features that relate to cases of aggravated robbery generally. Not all of those features are applicable to this case. I will refer only to those features which are or may be applicable to this case.
    • (a) Degree of planning and preparation
11. The evidence does not show any significant degree of planning and preparation in this offending. The accused, his co-offender, and their mate were hanging out on the seawall behind the Government Building when they saw the victim with his flash light approaching where they were. They then jumped on the victim and robbed him of his wallet and packback.
    • (b) Number of participants and their deployment
12. Only the accused and his co-offender participated in the robbery of the victim. Their mate was nearby; he appeared to have taken the wallet from the accused and the food from the co-offender and went away.
    • (c) (Actual evidence and its extent on top of threats and intimidation
13. There does not appear to have been any threats or intimidation from the accused and his co-offender to the victim. The accused simply approached the victim from behind, hold the victim’s left hand tightly behind his back, and went for the victim’s wallet which was inside his pockets. The co-offender then joined in and removed the victim’s packback and took out the contents of the packback including the food that was inside. When the victim asked for mercy, he was let go and told to leave in case he gets hurt.
    • (d) The property stolen and the extent of any recovery
14. The properties of the victim that were stolen were his wallet which contained $6.00 coins and the packback which contained his food. It appears that none of those items has been recovered.
    • (e) Impact of the offending on the victim
15. Even though the victim did not sustain any physical injuries, he was psychologically affected. He was obviously scared at the time of the robbery. Since this incident, the victim has trouble sleeping at night and is scared to walk around at night time. When he walks home after work, he is always looking behind him in case he gets attacked again from behind.

Mitigating feature relating to the offending

16. When the victim asked the accused and his co-offender for mercy, they let the victim go. In my opinion, this is a mitigating feature relating to the offending.

Mitigating features relating to the accused as offender

(a) Young age

17. The accused is 17 years of age. His future is still before him.

(b) Personal circumstances

18. The accused is a first offender. Like many other young offenders who have appeared before this Court, this accused is the victim of a broken up family. His parents separated when he was very young and as a result, he does not know who is his father. He has been raised and looked after by his maternal aunt for practically all his life. He assists his aunt with her food stall at the Toleafoa market at Fugalei. And that is where he lives and sleeps most of the time.

Discussion

19. Having given careful consideration to the aggravating and mitigating features of this case, particularly the personal circumstances of the accused, I have decided to impose a non-custodial sentence. I am also mindful of Sika v R [2011] NZCA 376; [41] which was a case of aggravated robbery where Lang J, in delivering the judgment of the New Zealand Court of Appeal, stated:
    • “Of its type, the assault was undoubtedly serious in the sense that it was a completely unprovoked attack on a person lawfully going about his business. It was restricted, however, to a single punch and did not result in lasting physical injury for the victim. That being the case, it would not ordinarily have attracted a custodial sentence”.
20. A term of supervision would be appropriate in the circumstances of this case. Consistency in sentencing approach is not synonymous with consistency in results because there is a wide range in the circumstances of the cases. In the final analysis, the sentence passed depends on the circumstances of each particular case.

The result

21. The accused is sentenced to 12 months supervision. In addition to the usual conditions of supervision, the following conditions are imposed on the accused during the term of his supervision:

(a) he is to stay with his maternal aunt at Vaivase-uta unless otherwise directed by the probation service;

(b) he is placed under home curfew from 7:00pm in the evening to 7:00am in the morning, that is to say, the accused must remain at home from 7:00pm in the evening to 7:00pm in the morning unless for health reasons he has to be taken to the hospital or elsewhere for treatment outside those hours; and

(c) he is to attend the Teen Challenge Programmes and counseling as directed by the probation service.

Honourable Chief Justice Sapolu