Police v Tuu'u [2017] WSSC 65 (25 April 2017)

THE SUPREME COURT OF SAMOA
Police v Tuu’u [2017] WSSC 65

Case name:	Police v Tuu’u
Citation:	[2017] WSSC 65
Sentence date:	25 April 2017
Parties:	POLICE (Prosecution) v LAPA TUTU’Umale of Vaitoloa and Siumu 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:	The accused is convicted of robbery and sentenced to 6 months imprisonment. The accused is convicted of causing actual bodily harm and sentenced to 4 months imprisonment. Both sentences to be served concurrently. Any time spent in custody to be deducted
Representation:	V Afoa for Prosecution Accused in person
Catchwords:	Robbery – causing actual bodily harm
Words and phrases:
Legislation cited:	Crimes Act 2013 s.176 Crimes Act 2013 s.119(1)
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

LAPA TUTU’U male of Vaitoloa and Siumu
Accused

Counsel:
V Afoa for Prosecution
Accused in person

Sentence: 26 July 2016

S E N T E N C E

The charges

1. The accused Lapa Tuu’u is 23 years old. He appears for sentence on one charge of robbery, contrary to s.176 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and one charge of causing actual bodily harm pursuant to section 119(1) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. He pleaded guilty to the charges on 20 February 2017.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 28 January 2017, Andrew and Paselio (the victims of this offending) were standing beside the road to wait for the village curfew at around 6pm. The accused was standing in front of a stop nearby.
4. The accused called out to Andrew to come and stand with him but Andrew refused. The accused then rode his bicycle to where Andrew was standing. He snatched Andrew’s cell phone that was inside his pocket and refused to give it back.
5. Paselio also asked the accused to return the cell phone. The accused became angry and slapped Paselio on the cheek. Paselio then punched the accused and the pair got into a fight. Bystanders stopped the fight and both victims walked to Andrew’s house. The accused followed them on his bicycle. When he caught up, he punched Paselio and lifted his body and threw him onto the ground. Villagers intervened and pulled the accused away.
6. As a result, Paselio sustained scratches and bruises on his chest, face and neck, and an abrasion on his right thigh.

The accused

7. As shown in the pre-sentence report, the accused is 23 years old, single and unemployed. He is the youngest of 7 children.
8. He lives with some of his siblings at Vaitoloa.
9. His sister told Probation that the accused is a good person.
10. There is a letter from the village mayor saying that the parents of the accused approached him and told him that the accused is remorseful.
11. The accused told Probation that prior to the offending, he and five of his mates drank a large bottle of vodka. Paselio is his cousin. He says he snatched Andrew’s phone because he was so intoxicated. He has expressed his remorse to Probation.
12. There has been reconciliation in this matter as confirmed by the victim’s grandfather, and he wishes for this matter to proceed to Court.
13. The accused has a previous conviction in April 2016 for causing injury for which he received a 6 months suspended sentence.

The victims

14. According to the summary of facts, Andrew is 20 years old and Paselio is 17 years old. Andrew works and Paselio is a student.
15. Paselio is cousins with the accused.

The aggravating factors

16. Paselio is cousins with the accused. This is a domestic relationship as defined under the Family Safety Act 2013. This is an aggravating factor that must be taken into account in sentencing.
17. The accused was the aggressor in this case. He snatched Andrew’s phone and then initiated the assault by slapping Paselio. He followed the victims on his bicycle when they had left after the initial robbery of Andrew’s phone and slapping Paselio on the cheek. He again assaulted Paselio. There was actual violence in this case and he continued the attack on the victims even after they had left.
18. The victims were vulnerable being younger than the accused and in particular Paselio being a younger cousin. The accused bullied these younger victims.
19. The second assault caused injuries to Paselio.
20. Section 8 of the Sentencing Act 2016 applies where the Court is sentencing a defendant in a case involving violence against a person under the age of 18 years. Paselio is 17 years old. The accused instigated the assault against his defenceless cousin when he should be protecting him.

Aggravating features in respect of the offender

21. It is an aggravating feature in respect of the accused that he has a previous conviction for causing injury, the same offence with which he is charged now, in 2016.

Mitigating Factors

22. I do not take into account by way of mitigation that the accused was at the time of committing these offences, affected by the voluntary consumption of alcohol.
23. His early guilty plea to the charges is a mitigating factor.

Discussion

24. Prosecution recommends a custodial sentence with a starting point of 3 years. Probation recommends a community based sentence.
25. I find that the criminality of this offending calls for a custodial sentence. These bullying tactics are inexcusable and unacceptable. Being intoxicated is not a ticket to bullying others, taking their belongings and beating them up. The accused knew he was given a chance by the Court last year. He obviously did not take that seriously. He will now learn the hard way that his actions are unlawful and unacceptable.
26. Therefore having taken into account the aggravating features of the offending (there being no mitigating features of the offending), I have decided to impose a custodial sentence with a starting point of 8 months for the robbery charge. There will be an uplift of 1 month for his previous conviction. That increases the starting point to 9 months. I deduct 1/3 or 3 months for his early guilty plea.
27. For the causing actual bodily harm charge, he is sentenced to 4 months imprisonment.
    

Sentence

28. The accused is convicted of robbery and sentenced to 6 months imprisonment.
29. The accused is convicted of causing actual bodily harm and sentenced to 4 months imprisonment.
30. Both sentences to be served concurrently.
31. Any time spent in custody to be deducted.
    

JUSTICE TAFAOIMALO TUALA WARREN