Police v Pusa [2018] WSSC 12 (14 February 2018)

SUPREME COURT OF SAMOA
Police v Pusa [2018] WSSC 12

Case name:	Police v Pusa
Citation:	[2018] WSSC 12
Decision date:	14 February 2018/
Parties:
Hearing date(s):
File number(s):	S1940/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- All sentences are to be concurrent so that the accused will serve only 5 year imprisonment. - Any time the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.
Representation:	L Sio for prosecution Accused in person
Catchwords:	actus reus – aggravating features relating to the offending – armed with a dangerous weapon –assault– causing loss by deception ––driving a motor vehicle without a driver’s licence – starting point for sentence– taking a motor vehicle without the owner’s consent –using insulting words with intent to rob
Words and phrases:
Legislation cited:	Crimes Act 2013, s.179 (2), s.172 (1) (d), s.173 (c); s.161 (1) (a),s.165 (c);s.179(2) Road Traffic Ordinance 1960, s.72 A (2); s.27 (1) Police Offences Ordinance 1961, s.4 (g)
Cases cited:	R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) R v Whata [2008] NZCA 204
	Wilson v R [2010] NZCA
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ASONEI PUSA male of Faleatiu.
Accused

Counsel:
L Sio for prosecution
Accused in person

Sentence: 14 February 2018

S E N T E N C E

The charge

1. Asonei Pusa you appear for sentence on seven separate charges, namely, assault with intent to rob, contrary to s.179 (2) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment; causing loss by deception, contrary to s.172 (1) (d), which carries a maximum penalty of one year imprisonment pursuant to s.173 (c); theft contrary to s.161 (1) (a), which carries a maximum penalty of 2 years imprisonment pursuant to s.165 (c); armed with a dangerous weapon, contrary to s.179(2) , which carries a maximum penalty of one year imprisonment; taking a motor vehicle without the owner’s consent, contrary to s.41 of the Road Traffic Ordinance 1960, which carries a maximum penalty of 2 penalty units pursuant to s.72 A (2); using insulting words, contrary to s.4 (g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 2 penalty units or 3 months imprisonment; and driving a motor vehicle without a driver’s licence, contrary to s.27 (1) of the Road Traffic Ordinance 1960, which carries a maximum penalty of 2 penalty units. To all these charges, you pleaded guilty at the first reasonable opportunity.
2. The principal charges against you are assault with intent to rob, theft, causing loss by deception, and being armed with a dangerous weapon.

The offending

3. As shown from the prosecution summary of facts which you accept, on 17 November 2017 at around 5:00pm, you and your girlfriend stopped the victim’s taxi in front of the old Amau supermarket building in Apia. You instructed the victim to take you and your girlfriend to the Sheraton Hotel at Mulifanua. When the taxi reached Faleatiu, you asked the victim to turn inland of Faleatiu to pick up the second and third accused who are your co-offenders in this matter and have pleaded guilty to the charges against them and have been referred to the Alcohol and Drugs Court.
4. On our way inland to Faleatiu, you found your co-offenders walking along the road and you instructed the victim to stop his taxi to pick them up. You then instructed the victim to drive to the Sheraton Hotel. Before you reached the hotel, you asked the victim to turn on to a road that goes inland. As the taxi was heading inland you told the victim to turn the car back and park. When the car parked, you instructed the victim to turn off the car and the lights.
5. You then asked one of your co-offenders if he had brought the knife you had asked him to bring and that co-offender pulled out the knife from his pocket and gave it to you. At that time, the car was still running. When the victim refused to turn off the car, you placed the knife on his neck. At that time, your co-offenders were already standing outside the victim’s door. Your co-offenders then pulled the victim out of the car and beat him up. 2You then got out of the car and approached the victim with the knife. You then wrestled with the victim. After that, you and your co-offenders pulled the victim to the back of the car and put him in the trunk of the car.
6. You then drove the car with your co-offenders in it to Apia. At the same time, the victim was screaming and pleading from the trunk of the car to allow him to go back to his wife and children. However, you ignored the victim’s screams and pleas. Instead, you swore at the victim and continued to drive. When the car reached Faleatiu, the victim was able to find a cable inside the trunk and pulled it out and escaped. He approached a nearby family for help. It appears you did not pay the victim any taxi fare.
7. During the police investigation, it was found that you stole two Alcatel phones with the values of $400 and $99 from the victim’s car. The police also found out that you do not hold a valid driver’s licence.
8. Your pre-sentence report shows that you told the probation service that you were annoyed by the way the victim (taxidriver) was talking to you and your girlfriend while you proceeding to your destination. You then sent a text message to your brother and cousin at Faleatiu, who are your co-offenders, plotting this offence. You also told the probation service that at Mulifanua you ordered the victim to pull over his car while you were holding a pocket knife to his neck. You then forced the victim out of the car before punching him. Your co-offenders joined in all of you assaulted the victim. When the victim became unconscious, you and your co-offenders lifted him up and put him in the trunk of the car before closing it and you drove back to Apia with your co-offenders and girlfriend. After cruising around Apia, you headed back to your village of Faleatiu. However, at Vaimoso the car had a flat tyre so you abandoned the car at Vaimoso. You were apprehended by the police the next day.
9. Before continuing, I must note here that what is said about the accused’s co-offenders who have been referred to the Alcohol and Drugs Court is only for the purpose of passing sentence on the accused. It is not for the purpose of any decision to be made on the co-offenders. Because you are not eligible for the Alcohol and Drugs Court, you have not been referred to that Court.

The accused

10. Your pre-sentence report shows that you are 23 years old and you grew up in your family with relatively low income. You finished school at Year 11. Subsequently, you travelled to New Zealand where you played rugby for two years. On your return to Samoa you joined the Tautai paddling team. So it appears you have an interest in sports. It also appears that you had employment only once and that was with a hardware company in Apia in 2016. At present, you are unemployed.
11. You are a first offender. Your sister Utau spoke to the probation service in support of yourself. She describes you as a loving and reliable person. There is also a supporting testimonial from the sui-tamaitai of your village which describes you as hardworking and respectful. You are also looking after your parents.

The victim

12. There is no victim impact report so I am not aware of the full impact of this offending on the victim. But from the circumstances of the offending , the victim must have been under considerable fear and emotional distress. The victim must have been psychologically affected.

New Zealand approach to sentencing on the charge of assault with intent to rob

13. In the case of Wilson v R [2010] NZCA 360, Randerson J, in delivering the judgment of the Court of Appeal, said at para [32]
    • “ What sentence was appropriate on the charge of assault with intent to rob? This Court held in R v Whata [2008] NZCA 204 that the guidelines set out in R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) have application to cases of assault with intent to rob. However, some tailoring is required and care must be taken in assessing culpability to have regard to any relevant points of distinction between the offences of assault with intent to rob and aggravated robbery. On obvious point of distinction is that the actus reus for the charge of assault with intent to rob does not require proof of theft.

The aggravating features relating to the offending

14. There are several aggravating features relating to this offending. In the first place, the victim as a taxidriver was in a particularly vulnerable position particularly after the accused’s co-offenders were picked up at Faleatiu and the victim became outnumbered by you, your brother and your cousin. The victim became even more vulnerable when the car stopped at an isolated place at Mulifanua. Secondly, this is a case involving the robbery of a taxidriver by his passengers. Even though the accused has not been charged with aggravated robbery but with assault with intent to rob, this offending has the features of aggravated robbery because the accused was acting together with co-offenders, was armed with a knife, and he did steal two Alcatel phones from the victim’s car.
15. The third aggravating feature relating to the offending is the high degree of premeditation involved. As you told the probation service, you sent a text message to your co-offenders at Faleatiu plotting this offence while you were proceeding from Apia in the victim’s taxi towards the Sheraton Hotel at Mulifanua.
16. The fourth aggravating feature is the high degree of violence and threats of violence inflicted on the victim. You placed a knife on the victim’s neck when he refused to turn off his car at an isolated place at Mulifanua. You and your co-offenders then forced the victim out of the car and beat him up. When he was unconscious, you placed him in the trunk of the car.
17. The fifth aggravating feature is the use of a knife in the commission of this offending.
18. The sixth aggravating feature is the cruelty involved in this offending. After deceiving the victim to take you and your girlfriend to the Sheraton Hotel, you plotted to assault him and take his car. Then after beating up the victim you and your co-offenders locked him in the trunk of his car and drove his car to Apia. When the victim screamed and pleaded with you to allow him to go to his wife and children, you swore at him. You obviously did not care about the victim. It was fortunate for the victim that he was able to escape when the car reached Faleatiu.
19. The seventh aggravating feature relating to this offending is the deception involved. You obviously deceived the victim to take you and your girlfriend to the Sheraton Hotel at Mulifanua when you had no intention of going there or paying the victim for your fare.
20. The eighth aggravating feature is that this offending involved the theft by the accused of two Alcatel phones.
21. With this type of offending, deterrence and the protection of taxidrivers are the most significant considerations.

The mitigating features relating to the accused as offender

22. The first mitigating feature relating to you as offender is your previous good character. The second is your early guilty plea.

Discussion

23. In determining the starting point for sentence, I look at the totality of the offending. Having considered the aggravating features relating to this offending and the need for deterrence and the protection of taxidrivers, I have decided to take 7 years as the starting point for sentence. I will deduct 6 months for previous good character. That leaves 6½ years. I will deduct 1½ years, for the early guilty plea. That leaves 5 years.

Result

24. On the charge of assault with intent to rob, the accused is convicted and sentenced to 5 years imprisonment.
25. On the charge of causing loss by deception, the accused is convicted and sentenced to 3 months imprisonment.
26. On the charge of theft, the accused is convicted and sentenced to 9 months imprisonment.
27. On the charge of being armed with a dangerous weapon, the accused is convicted and sentenced to 6 months imprisonment.
28. On the charge of taking a motor vehicle without the owner’s consent, the accused is convicted and discharged.
29. On the charge of using insulting words, the accused is convicted and sentenced to one month imprisonment.
30. On the charge of driving without a driver’s licence, the accused is convicted and discharged.
31. All sentences are to be concurrent so that the accused will serve only 5 year imprisonment.
32. Any time the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.

CHIEF JUSTICE