Police v Luamanu [2018] WSSC 120 (14 September 2018)

SUPREME COURT OF SAMOA
Police v Luamanu [2018] WSSC 120

Case name:	Police v Luamanu
Citation:	[2018] WSSC 120
Decision date:	14 September 2018
Parties:	POLICE v ROMAN LUAMANU male of Toamua-uta and Vaoala, MU FUALAU AND SUI FUALAU males of Savaii and Afiamalu and MAGIA LAI’VA male of Falelatai and Vaoala.
Sentencing date(s):	14 September 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	Accordingly, you are convicted and sentenced as follows: Roman: (i) on the lead charge of kidnapping, 1 year and 5 months imprisonment less time remanded in custody; (ii) theft, 2 months imprisonment to be served concurrently; and (iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge. Mu: (i) on the lead charge of kidnapping, 9 months imprisonment less time remanded in custody; (ii) theft, 2 months imprisonment to be served concurrently; and (iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge. Sui and Magia: (i) on the lead charge of kidnapping, 8 months imprisonment less time remanded in custody; (ii) theft, 6 weeks imprisonment to be served concurrently; and (iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge.
Representation:	F Ioane for prosecution Accused all self-represented
Catchwords:	joint charge of kidnapping,
Words and phrases:	vulnerability of the victim given both his age and position as a taxi driver driving at night, Cruelty in your offending by placing your 64 year old victim in the boot of the taxi for a period of about 8 hours, taking motor vehicle without owner’s consent.
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Lafaele Su’a, Police v Saape, (Police v Finau [2012] WSSC 95 (3 September 2012) and Police v Timu[2006] WSSC 1).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ROMAN LUAMANU male of Toamua-uta and Vaoala, MU FUALAU & SUI FUALAU males of Savaii & Afiamalu and MAGIA LA’IVA male of Falelatai & Vaoala.
Accused

Counsel:
F Ioane for prosecution
Accused all self-represented

Decision: 14 September 2018

S E N T E N C E

The Charges:

1. The Summary of Facts states that the accused Roman Luamanu is charged with theft contrary to section 161 and 165(d) of the Crimes Act 2013. That is incorrect as information S481/18 theft incorrectly refers to section 162(b) of the Crimes Act 2013. Information S481/18 is amended by deleting “section 162(b)” and inserting “section 161 and 165(d)” to bring the charge in conformity with the evidence.
2. Roman, Mu, Sui and Magia, you all appear for sentence for the joint charge of kidnapping contrary to section 130 of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment and for taking a vehicle without the owner’s consent contrary to sections 41 and 72A(2) of the Road Traffic Ordinance 1960 carrying a maximum penalty of a fine of $200.
3. You also appear for sentence for the theft of $125.00, the property of Ioasa Moors which carries a maximum penalty of up to 1 year imprisonment.
   

The Offending:

4. According to the Summary of Facts accepted by you all, at about 7.00pm on the night of 3rd March 2018 at Malifa, you stopped the victim’s taxi. You asked the victim to take you to Vaoala to pick up an ‘ako kalo’ from Roman’s house.
5. When the taxi reached Roman’s home at Vaoala, you Roman asked the victim to come out of the taxi and open the boot. The victim walked to the back and opened the boot. You Roman then approached and stood next to him and the other three of you came out and ‘stared’ at what was happening. The victim asked where the ‘ako kalo’ is. Roman then punched the victim on the back of the head and told the victim to go into the boot of the taxi. Out of fear, the victim complied.
6. You then all returned inside the taxi and you Roman drove the taxi to Afiamalu to Sui’s house. At Afiamalu, you Roman instructed Mu to ask the victim who was inside the boot where the money is inside the taxi. Mu, you then went to the victim and said:

“O fea le kupe o le ka’avale? Kope I kau le ala I lou ulu.”

7. The victim told you that the money was under the driver’s seat. You then went inside, told Roman and he got the money out of the bag amounting to $125.00. Roman then drove the taxi to Tanugamanono and bought a bottle of Boom Vodka. You then went to a service station and put $20.00 petrol in the car. You then all drove around town and then out to Vaitele-fou drinking “while the victim was suffocating inside the boot of the taxi.”
8. After drinking, you all went to Pinati’s Restaurant and bought food. You then went to Afiamalu, dropped Sui and Mu at home. Roman fell asleep and Magia then drove the taxi to Vaoala. Magia woke up Roman and Roman then drove the taxi to Toamua and parked on the road leading to his home. Roman left the engine running, turned the music up and left the scene with the victim in the boot of the taxi.
9. The victim was released from the boot by another taxi driver passing by. The time was now approximately 3.00am.

The Accused:

10. Roman, you are 19 years old of Toamua Uta and Vaoala. You are attending the Youth with a Mission School at Falelauniu. You told the Probation Service that your father was a builder and your mother operates a food stall at the Fugalei market. Your father passed away in April this year. You completed school to year 13 and you are currently attending the Youth With a Mission School (YWAM). You stated that you are fortunate to have the opportunity to attend the school to see the ‘big picture’. The YWAM letter to the Court confirms that you have been attending the Discipleship Training School since May and they have witnessed a big change in you. Your mother asks for leniency and says that you have learnt a valuable lesson. You have been banished from Toamua.
11. You Mu are 18 years old, single and unemployed. You completed school to year 13 at Avele College, presumably finishing only last year. You joined the Discipleship Training with the YWAM in May this year and they state that they have witnessed a big change in you. Your father is very supportive of you.
12. Sui, you are a 25 years old, single and unemployed. You completed school to year 12 then attended Ulumasao Technology Institute in a 3 year carpentry course. You worked for a period. You are described by your family as a person of good character and despite your offending, they remain supportive of you.
13. Magia, you are 23 years old, single. You completed school to year 11 and have been employed in a lawn mowing business earning $200 per week. You have very positive character references from your Church Bishop, pule nu’u and employer. Your father is supportive of you, relies on you and asks for the Court’s leniency.

The Victim:

14. The victim is 64 years old. He is married with 4 children and is employed as a taxi driver. In his Victim Impact Report, the victim says he was shocked about what had happened to him. He describes being punched and feeling dazed by the punch. When in the boot of the taxi, he describes suffocating at times in the boot and calling out for the boot to be opened and it would be opened and closed from time to time. He says he was worried about himself and what might happen to the taxi.
15. The victim confirms that on the night of the 3rd of September, Roman’s mother came to his house and apologized, which he accepted and he has forgiven Roman. There however has been no reconciliation or apology by any of the other accused.

Aggravating features:

16. The aggravating features of this matter are:

• The vulnerability of the victim given both his age and position as a taxi driver driving at night;
• There was both actual violence inflicted on the victim by you Roman together with the threat of violence by you Mu when demanding the location of money in the taxi;
• There was an element of premeditation in the offending; and
• Cruelty in your offending by placing your 64 year old victim in the boot of the taxi for a period of about 8 hours.

17. You are all first offenders so there are no aggravating features personal to any of you.

The mitigating features:

18. In terms of you Roman, the mitigating features are (a) your early guilty plea to the amended charges, (b) your remorse (c) the apology extended to the victim through your mother, (d) your banishment by your village (e) your prior good character; and (f) your youth.
19. For Mu and Sui, the mitigating features are (a) your early guilty plea to the amended charges, (b) your remorse; (c) your prior good character; and for you Mu, (d) your youth.
20. For you Magia, I accept as mitigating (a) your early guilty plea to the amended charges, (b) your remorse; and (c) your prior good character.

Discussion:

21. With kidnapping as the lead charge, prosecution seeks a custodial sentence with a start point of 2 years imprisonment for all accused, a one size fits all approach. The Probation Service is amenable to community based sentences for you all.
22. Kidnapping is a very serious charge with a maximum penalty of up to 10 years imprisonment. In your case, the victim was physically assaulted and then kidnapped by placing him in the boot of his taxi. You then kept him confined in the boot of the taxi for a lengthy period of time, approximately 8 hours, as you drove around Apia drinking and driving as you went. He was threatened with violence when the demand was made about the whereabouts of his money and you used that money stolen from him.
23. Your actions were a cowardly act against your 64 year old victim. Taxi drivers are vulnerable because of the occupation they carry out in service of the community. The job is at times a difficult and dangerous job when they pick up all manner and number of people whether violent, drunk, abusive or all of these. This particularly occurs on weekends.
24. When passengers such as you four turn violent, it is no doubt frightening for a taxi driver. For your 64 year old victim, you kept him locked in the boot of his taxi for a long period of time and at times suffocating as you drove around drinking alcohol. As you did this, you were I expect also a danger on the roads to other road users given you were drinking and driving.
    
25. The sentence I impose today is one to denounce your conduct and to deter you and others from carrying out this type of offending including such a cowardly act against a defenceless and vulnerable taxi driver. In sentencing you however, I accept that the culpability between the 4 of you is different. You Roman were clearly the ringleader of the group and are the most culpable. You directed and led this offending and you were the principal driver of the taxi. Mu, you also have a higher level culpability then Sui and Magia as you threatened the victim with violence. Your culpability is between that of Roman at the highest and Sui and Magia who played a lesser role in the kidnapping.
26. Kidnapping is fortunately not a common offence in Samoa. I have considered the two kidnapping authorities referred to by Prosecution and this is certainly not a case that falls within the non-custodial range of sentences in Police v Lafaele Su’a. It is also not however as serious in terms of violence effected as in Police v Saape which adopted a 5 year start point of imprisonment. I have also referred to other cases off kidnapping of children (Police v Finau [2012] WSSC 95 (3 September 2012) and Police v Timu[2006] WSSC 1).
27. In respect of Roman, I adopt 3 year start point for sentence. I deduct 4 months for your remorse and apology, 3 months for the village banishment and prior good character, and 6 months for your youth. From the balance, I deduct 6 months for your early guilty plea. That leaves an end sentence of 1 year and 5 months imprisonment.
28. In respect of you Mu, I adopt 18 months start point for sentence. I deduct 3 months for your remorse and prior good character. I deduct 3 months for your youth and from the balance, I deduct 3 months for your early guilty plea on the amendment of the charges leaving an end sentence of 9 months imprisonment.
29. In respect of you Sui and Magia, I adopt 15 months start point for sentence. I deduct 4 months for your remorse and prior good character and 3 months for your guilty plea on the amendment of the charges leaving an end sentence of 8 months imprisonment for you both.

The penalty:

Accordingly, you are convicted and sentenced as follows:

1. Roman:

(i) on the lead charge of kidnapping, 1 year and 5 months imprisonment less time remanded in custody;

(ii) theft, 2 months imprisonment to be served concurrently; and

(iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge.

2. Mu:

(i) on the lead charge of kidnapping, 9 months imprisonment less time remanded in custody;

(ii) theft, 2 months imprisonment to be served concurrently; and

(iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge.

100. Sui and Magia:

(i) on the lead charge of kidnapping, 8 months imprisonment less time remanded in custody;

(ii) theft, 6 weeks imprisonment to be served concurrently; and

(iii) taking motor vehicle without owner’s consent, convict and discharge. Penalty incorporated into lead charge.

JUSTICE CLARKE