Police v Lapua [2019] WSSC 31 (18 June 2019)

SUPREME COURT OF SAMOA
Police v Lapua [2019] WSSC 31

Case name:	Police v Lapua
Citation:	[2019] WSSC 31
Decision date:	18 June 2019
Parties:	POLICE v TAUINAOLA LAPUA a.k.a TAVA’ETOTO LAPUA a.k.a TAUINAOLA TAFALE MAPUSUA IOSEFA male of Salelavalu, Gataivai, Satapuala and Vaitele-Fou.
Sentencing date(s):	18 June 2019
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- On the charge of manslaughter, you are convicted and sentenced on the charge of manslaughter to 7 years imprisonment, less time remanded in custody. This is cumulative to your other sentences you are currently serving. On the charge of aggravated robbery, convicted and sentenced to 2 years and 4 months imprisonment concurrent to manslaughter. In relation to assault with intent to rob, namely, the initial assault, convicted and sentenced to 3 months imprisonment to also be served concurrently.
Representation:	L Sio for Prosecution D Kerslake for the Accused
Catchwords:
Words and phrases:	assault involved actual violence, with a degree of premeditation in relation to the assault and was unprovoked; offending occurred whilst you were on bail for unrelated serious assault; the death resulted from an act of robbery against the deceased in a public place; rob a foreigner from China.
Legislation cited:
Cases cited:	Police v Sape [2015] WSSC 160 Police v Faatau [2014] WSSC 75
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TAUINAOLA LAPUA a.k.a TAVA’ETOTO LAUPUA a.k.a TAUINAOLA TAFALE MAPUSUA IOSEFA male of Salelavalu, Gataivai, Satapuala and Vaitele-Fou.
Accused

Counsel:
L Sio for Prosecution
D Kerslake for the Accused

Decision: 18 June 2019

O R A L S E N T E N C E

[1] Tauinaola Laupua, you appear for sentence on one charge of manslaughter, one charge of aggravated robbery and one charge of assault with intent to rob.

The Offending:

[2] According to the Amended Summary of Facts dated 30^th May 2019 accepted by you through your counsel, on Friday 31 August 2018 between 10pm and 11pm, you were drinking alcohol with friends in town near the public library. One of your friends told you that the deceased was walking behind the government building at the Eleele Fou. You then asked your friend to accompany you to look for the deceased to rob him.

[3] When you were at the sea wall, you told your friend to punch the deceased. Your friend however refused out of fear. The deceased was laying on the seawall playing with his phone. You then said to your friend, “o le kagaka a o kaua e ga ke maua mea la o ia lava e oga.”

[4] Together with your friend, you both approached the deceased and asked the deceased twice if he has money to buy food. The deceased responded ‘no you not buy food, you buy beer.’ You again asked the deceased for money but the deceased again replied ‘no, no.’

[5] The deceased then stood up and you then punched the deceased’s eye and you started fighting with him. During the fight, the deceased punched you and as you were about to fall, you grabbed the deceased shirt. You both fell on to the rocky slope of the seawall towards the sea with the deceased falling face downwards. After the fall, the deceased was motionless. You then stood up and took the deceased’s phone and left the deceased there on the seawall.

[6] The deceased was found that following morning on the seawall dead. A post mortem was carried out which found the deceased’s cause of death due to head injuries.

The Accused:

[7] You are a 32 year old male of Salelavalu, Gataivai, Satapuala and Vaitele-fou. You are divorced and unemployed. According to your PSR, you grew up in Gatavai and are the fourth of seven children. You completed school to year 12 and then opted to assist with your family bakery in Salelologa. You have two young children. You confirmed your prior conviction record which involved primarily offences of dishonesty.

The Victim:

[8] The deceased was a 41 year old male of Vaivase-Uta and China. He was in a de-facto relationship with children. He was said to have been a Chinese volunteer working at the Anglican Pre-School, Apia.

[9] The VIR from the deceased’s wife in China speaks of the severe impact of the deceased’s death on her, his 14 year old daughter and on his parents in China who are said to be 70 years of age.

Aggravating Factors:

[10] The aggravating features of your offending are:

(a) Your assault involved actual violence, with a degree of premeditation in relation to the assault and was unprovoked;
(b) Your original assault targeted the deceased’s head;
(c) Your offending occurred whilst you were on bail for unrelated serious assault and narcotics charges for which you subsequently pleaded guilty;
(d) That the death resulted from an act of robbery against the deceased in a public place; and
(e) The injuries sustained by the victim.

The mitigating features:

[11] The only mitigating factors personal to you are:

(a) Your guilty plea; and
(b) Your remorse which you expressed when you directly addressed the Court.

Discussion:

[12] Tauinaola, like your offending for which you were sentenced in October 2018, alcohol was a contributing factor to your offending here. In this case, you consumed beer followed by Boom Vodka.

[13] When you committed this offending, you were on bail for other serious assault charges relating to assaults against your brother and cousin. You ultimately pleaded guilty to those charges and were imprisoned.

[14] Despite the serious pending matters against you at the time, you drank alcohol, became intoxicated and then planned with a friend to rob the deceased on the seawall. When you went to the deceased on the seawall, you told your friend to punch him. You then fought with the deceased. That you committed this offending whilst on bail for similar offending of violence is a serious aggravating factor to your offending.

[15] Your acts that night tragically caused the death of a man minding his own business enjoying the night on the seawall. He, like other members of the public, was entitled to use the seawall without being harassed. It was tragically a senseless and unnecessary death of a man who had come to Samoa from China to teach our children. His death from your actions has had a significant impact on his family in China. After you both fell down and the deceased motionless, you then robbed him of his phone and left him there either dead or dying. You showed no feeling for your victim then robbing him and leaving him there on the seawall despite being motionless.

[16] In your case, you chose to rob a foreigner from China. As His Honour Nelson ACJ relevantly stated in Police v Sape [2015] WSSC 160 (20 July 2015):

“The most serious of the charges are the aggravated robbery and aggravated burglary. Both offences carry a 14 year maximum penalty by law. Burglary and robbery of expatriates by local residents is a very common occurrence in our country. The courts penalty must be designed to discourage such offending in relation not only to expatriates but to all people...”

[17] Those comments apply equally to your case.

[18] As I said when you were sentenced in October last year, you are a danger to the community. You are particularly so when intoxicated. The sentence that will be imposed will be a deterrent sentence to deter not only you but others who might consider offending in a similar way and also to denounce your conduct. When people consume alcohol, they must do so responsibly and know that if they then commit violent offending resulting in death, it will be dealt with sternly by the Courts.

[19] Prosecution seeks a 10 year start point for sentence. Your counsel seeks a start point of 4 to 5 years imprisonment.

[20] This is not a case isolated to a sentence for manslaughter or aggravated robbery. You are being sentenced for both and as the authorities for aggravated robbery show (see for eg. Police v Sape [2015] WSSC 160 (20 July 2015); Police v Faatau [2014] WSSC 75 (28 November 2014)), lengthy custodial sentences in appropriate circumstances for aggravated robbery are also imposed by the Courts.

[21] In your case, you also committed your offending whilst on bail for other serious violent and narcotics offending. In the course of or following your committing of the robbery of the deceased on the seawall, the deceased died. In all the circumstances and applying the totality in sentencing approach and the charge of manslaughter as the lead charge, I adopt 9 year start point for sentence. I deduct 6 months for your remorse and from the balance, 18 months for your guilty plea.

[22] I have not uplifted your sentence due to your prior convictions as they were of a different nature. You however do not get a discount for prior good character.

Result:

[23] On the charge of manslaughter, you are convicted and sentenced on the charge of manslaughter to 7 years imprisonment, less time remanded in custody. This is cumulative to your other sentences you are currently serving. On the charge of aggravated robbery, convicted and sentenced to 2 years and 4 months imprisonment concurrent to manslaughter. In relation to assault with intent to rob, namely, the initial assault, convicted and sentenced to 3 months imprisonment to also be served concurrently.

JUSTICE CLARKE