Police v Nikolao [2016] WSSC 200 (26 October 2016)

THE SUPREME COURT OF SAMOA
Police v Nikolao [2016] WSSC 200

Case name:	Police v Nikolao
Citation:	[2016] WSSC 200
Decision date:	26 October 2016
Parties:	POLICE (Prosecution) v PLOION @ TAFILI NIKOLAO male of Salepouae Saleimoa (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	Convicted and sentenced to 12 months supervision with the special conditions that; refrain from consuming alcohol; and perform 100 hours of community service to Samoa Victim Support Group.
Representation:	V. Afoa for Prosecution Accused in person
Catchwords:	joint charge of aggravated robbery - pleaded guilty to the charge
Words and phrases:
Legislation cited:	Crimes Act 2013 section.177(a) - Community Justice Act 2008 section 13
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PLOION @ TAFILI NIKOLAO male of Salepouae Saleimoa
Accused

Counsel:
V. Afoa for Prosecution
Accused in person

Sentence: 26 October 2016

S E N T E N C E

The charge

1. The accused Ploion @ Tafili Nikolao is 23 years old. He appears for sentence on one joint charge of aggravated robbery, contrary to s.177(a) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment.
2. He pleaded guilty to the charge on 4 July 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 30 April 2016 between 2pm and 12 am, the victim was drinking at a friend’s house at Saleimoa. When he left to wait for a taxi to go to work, he fell asleep inside a falesamoa with a bag around his neck. The accused and four others were intoxicated and came across the victim sleeping inside the falesamoa. They punched the victim and continued to beat him until blood poured out of his face and he was motionless, snoring and bleeding profusely. They then robbed the victim while he was lying on the ground.
4. They took from the victim;
   1. Bottle of whiskey valued at SAT $44.00;
   2. Cellphone nokia valued at SAT$49.00;
   100. SAT$40.00 cash;
   4. Pair of gold earrings valued at SAT$20.00;
   5. Cellphone charger valued at SAT$20.00.
5. The total value of the goods stolen is SAT$ 162.00.

The accused

6. As shown in the pre-sentence report, the accused is 23 years old, single and works in construction earning $300.00 weekly. He is the eldest of 4 children and still lives with his mother and siblings at Saleimoa as his parents divorced when he was 20 years old. He has a certificate in mechanical studies.
7. His mother told Probation that she remains supportive of her son as he is reliable and hardworking. He is also the breadwinner for the family.
8. The accused has completed the 6 weeks program for drugs and alcohol (Toe Afua se Taeao Fou) as ordered by the Court. He has a certificate to confirm this. His report says that he was an active participant, engaged well in all the topics and attended all sessions. Topics ranged from Facts and Effects of Alcohol and drugs on physical health to goal setting and the impact of substance abuse on family, culture and spirituality. He reported to the case manager that he has minimal use of alcohol now and has had periods of abstinence. The case manager reports that the accused appears committed to maintaining current change to his attitude and behaviour towards alcohol and drugs.
9. He told probation that he has no recollection of the offending as he was so intoxicated.
10. He has no previous convictions.

The victim

11. According to the summary of facts, the victim is 43 years old from Salepouae Saleimoa, single and works at TCB Security at Tuanaimato.
12. During the offending, the victim’s face was bleeding profusely and he was beaten until he was motionless.
13. The medical report says that the victim was brought in with trauma to both eyes. He underwent repair surgery but the loss of vision in the left eye is irreversible. The right eye is normal. He was in hospital for almost 2 weeks.

The aggravating and mitigating factors

14. 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 at least five men on a 43 year old man, (b) the victim was on his own, sleeping and intoxicated, therefore in a vulnerable situation, (c) the degree of violence applied by the accused, being repeated punching to the victim’s face causing his face to bleed profusely (d) the amount of goods stolen by the accused, and (e) the impact of this offending on the victim as set out in the medical report which is permanent damage to the victim’s left eye.
15. There are no mitigating factors of the offending.

Mitigating Factors

16. It is a mitigating factor that the accused attended the program to address the cause of his offending behaviour which is excessive alcohol consumption. The accused received a good report and has a certificate of completion. Alcohol consumption and intoxication during offending is not a mitigating factor.
17. I take into account that the accused has apologised to the victim and that apology was accepted.
18. His early guilty plea to the charge is a mitigating factor.

Discussion

19. Prosecution recommends a custodial sentence. Probation recommends a community based sentence. I find that the criminality of this offending calls for a custodial sentence. However the defining point for this accused is his participation and successful completion of the programme for alcohol and drugs and the good report he received from the case manager.
20. Therefore having taken into account the aggravating features of the offending (there being no mitigating features of the offending), and all the circumstances of the accused, I have decided to impose a non-custodial sentence with a focus on the rehabilitation of the accused. The accused has been principally responsible for his family, he has never offended before and most importantly, he has attended the program as ordered by the Court to address his offending behaviour.
21. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Section 16 of the same Act also gives the discretion to the Court to impose special conditions of supervision related to the rehabilitation and reintegration of the accused.
22. I am satisfied that the rehabilitation of the accused has started, but it needs to continue, and some stringent special conditions need to be imposed to assist in his rehabilitation. The special conditions of his sentence today will focus on his alcohol consumption and giving back to the community in a meaningful way, so that he can appreciate the position he has in society. He is a well paid young man with his whole future before him. He needs to appreciate that, in order to realise the impact his offending has had on the victim, and the impact that alcohol had on his offending.

Sentence

23. The accused is convicted and sentenced to 12 months supervision with the special conditions that;
    1. he refrain from consuming alcohol; and
    2. perform 100 hours of community service to Samoa Victim Support Group.

JUSTICE TAFAOIMALO TUALA-WARREN