Police v Toaina [2017] WSSC 8 (24 January 2017)

THE SUPREME COURT OF SAMOA
Police v Toaina [2017] WSSC 8

Case name:	Police v Toaina
Citation:	[2017] WSSC 8
Decision date:	24 January 2017
Parties:	POLICE (Prosecution) v SITIVI TOAINA 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:	The accused is convicted and ordered to come up for sentence in 12 months time. He is not to re-offend within that time or consume alcohol. If he does not obey these conditions, he will be sentenced on this offence.
Representation:	V. Afoa for Prosecution Accused in person
Catchwords:	aggravated robbery
Words and phrases:
Legislation cited:	Crimes Act 2013 section.177 (a)
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

SITIVI TOAINA male of Salepouae Saleimoa
Accused

Counsel:
V. Afoa for Prosecution
Accused in person

Sentence: 24 January 2017

S E N T E N C E

The charge

1. The accused appears for sentence on one joint charge of aggravated robbery, contrary to section 177 (a) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment.
2. Section 177(a) which provides for the offence of aggravated ry <160;states:

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

“B robs any person and, at the time of, or immedi befo immediately afte after, the robbery, causes grievous bodilbodily harm to any person;

3. He pleaded guilty to the charge on 4 July 2016. The other co-accused have been sentenced.

The offending

4. The Prosecution summary of facts admitted by the accused says that on 30 April 2016 between 2 pm and 12 am, the victim was drinking at one of his 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. The other co-accused 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.
5. They took from the victim;
   1. Bottle of whiskey valued at SAT $44.00;
   2. Cellphone nokia valued at SAT$49.00;
   3. SAT$40.00 cash;
   4. Pair of gold earrings valued at SAT$20.00;
   5. Cellphone charger valued at SAT$20.00.
6. The total value of the goods stolen is SAT$ 162.00.
7. The accused took the bottle of whiskey from the victim’s bag and ran away.

The accused

8. The accused lives at Saleimoa with his parents. He stays home and does chores for his family. His family relies on remittances from overseas and also on their vegetable garden for survival.
9. He is single.
10. His mother says that he is hardworking and kind hearted. However she claims that his weakness is alcohol. The accused was under the influence of alcohol when the offending occurred.
11. His Reverend and village mayor have written character references for the accused in which they speak highly of his input to the welfare of the community.
12. 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 demonstrated insight into his own substance use and the significant effects it has had. 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 nil use of alcohol now.
13. He has a previous conviction in 2012 for actual bodily harm.

The victim

14. According to the summary of facts, the victim is 43 years old from Salepouae Saleimoa, single and works at TCB Security at Tuanaimato.
15. During the offending, the victim’s face was also bleeding profusely and he was beaten until he was motionless.
16. 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

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 at least three 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 co-accused while the accused stood by and watched, (d) the amount of goods stolen by the co-accused, and (e) the impact of this offending on the victim as set out in the medical report which points to permanent damage to the victim’s left eye.
18. The mitigating feature relating to the offending for this accused is that he did not actively participate in the violence on the victim. His involvement was taking a bottle of alcohol while the co-accused beat the victim.

Aggravating features relating to the accused

19. It is an aggravating feature relating to the accused that he has a previous conviction for a violent offence in 2012, namely causing actual bodily harm. He was imprisoned for 6 months for that offending in the Youth Court.

Mitigating Factors

20. 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 from the program provider and has a certificate of completion. Alcohol consumption on its own is not a mitigating factor and should never be considered as such.
21. Another mitigating factor is his early guilty plea to the charge.

Discussion

22. Having taken into account the aggravating features of the offending and the extent of the involvement of the accused, I have decided to impose a non-custodial sentence with a focus on monitoring his progress as he has attended the program as ordered by the Court. The only factor which saddens the Court is his ability to stand by and watch the co-accused beat the victim. The accused has appeared in the Youth Court. He has been in custody for a short period of time as a result of this offending. He now knows what awaits him if he re-offends.

Sentence

23. The accused is convicted and ordered to come up for sentence in 12 months time. He is not to re-offend within that time or consume alcohol. If he does not obey these conditions, he will be sentenced on this offence.
    

JUSTICE TAFAOIMALO TUALA WARREN