Police v Upuese [2019] WSSC 84 (26 September 2019)

IN THE SUPREME COURT OF SAMOA
Police v Upuese [2019] WSSC 84

Case name:	Police v Upuese
Citation:	[2019] WSSC 84
Decision date:	26 September 2019
Parties:	POLICE (Informant) and FIAPAPALAGI FAASISILA UPUESE, male of Tanugamanono & Moata’a (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The accused, Fiapapalagi Upuese is convicted and sentenced to 3 years and 9 months’ imprisonment. Less any time in custody.
Representation:	Q. Sauaga for Prosecution M. So’onalole for the Accused
Catchwords:	aggravated robbery – aggravated burglary – kidnapping – burglary – intentional damage – threat to kill – assault – two victims – pre-meditation – violence involved – use of weapon – damage to properties – previous convictions – young offender – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 123; 129; 130; 174; 174(2); 174(3); 175(1); 177(c); 184(2). Sentencing Act 2016 s. 56(3).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FIAPAPALAGI FAASISILA UPUESE male of Tanugamanono & Moataa

Accused

Counsel: Q. Sauaga for Prosecution
M. So’onalole for the Accused

Date: 26 September 2019

SENTENCE OF TUATAGALOA J

Charge

1. The accused, Fiapapalagi Upuese, appears for sentence on the following charges committed on the same day, at different times and at different locations involving two (2) different victims:
2. (i) aggravated robbery (2x);^[1]
3. (ii) aggravated burglary;^[2]
4. (iii) kidnapping;^[3]
5. (iv) burglary;^[4]
6. (v) intentional damage;^[5]
7. (vi) threat to kill;^[6] and
8. (vii) assault.^[7]

The offending

2. The accused accepted the summary of facts prepared by the prosecution of your offending on 25 December 2018.

(a) First Victim – Troels Kjaer Andersen

3. At round 11pm on this Christmas day, you went to Lynn’s Getaway Accommodation at Tanugamanono and broke into the accommodation by using a kitchen knife to pick the lock of the door to gain access. The accused entered a room and found Mr. Anderson sitting on his bed. He threatened Mr. Anderson with the knife and demanded money from him to which he complied and gave the accused SAT$200 cash and the accused also took the following from him:
   • UE Bluetooth speaker valued at $400,
   • Black pair of sports shoes valued at $300 and
   • A pair of sandals valued at $20.
4. The accused continued to subject the victim to further threats and demanded that the victim go with him to the ATM to withdraw money using the victim’s card. The victim withdrew $600 from the ATM, gave it to the accused and then he ran back to the accommodation seeking help.
5. According to the summary of facts, the accused took off in Mr Andersen’s rental and went on to the second victim’s house at Vaivase –uta.

(b) Second Victim – Melanie Erickson

6. The accused got to Ms. Erickson’s house at Vaivase uta and drove straight into the chain link fence damaging the fence to gain access into Ms. Erickson’s property. The total cost to the chain link fence is said to be $3000.
7. The accused entered Ms. Erickson’s house while she and her family were asleep and went into her room. Ms. Erickson woke up and tried to escort the accused outside but the accused told her that he wanted to have sex. As Ms. Erickson was trying to escort the outside, the accused tackled her to the ground and threatened to kill her by saying, “O le a ou fasiokia oe.”
8. Ms. Erickson managed to get to her feet and convinced the accused to wait while she went to get her purse and cigarettes. The accused fled the scene while Ms. Erickson went back inside. Ms. Erickson woke her mother who reported the matter to police.

The accused

9. The accused was 18 years old at the time of the offending from the village of Tanugamanono and is unemployed. Prior to the offending he was at one time employed by Ms. Erickson’s family as a grounds man. It was during this time that the accused had a sexual relationship with Ms. Erickson.

The victims

10. Mr. Troels Kjaer Anderson is 27 years old from Denmark and was at the time working for the UNDP office as an intern. He has since left to return back to Denmark.
11. The second victim, Ms. Melanie Erickson, is a 42 year old female of Vaivase uta who with her mother runs a florist business.

The aggravating features

12. The aggravating features of the offending are:
    • (i) Premeditation – both offences were clearly pre-meditated;
    • (ii) Violence involved;
    • (iii) Use of a weapon;
    • (iv) Damage to the properties;
    • (v) Invasion of privacy – the accused went to the houses or accommodation where the victims live;
    • (vi) The number of victims involved (2);
13. The impact of the offending on each victim is for Mr Andersen low to medium level. In VIR Mr Andersen says that he initially suffered psychological distress during the ordeal and in the subsequent weeks. Ms. Erickson herself reported no injuries or any psychological effects.
14. The accused has previous convictions of offending involving violence.

The mitigating features

15. The mitigating features are the early guilty plea and the accused young age of 18 years old.

Discussions

16. The prosecution seeks for a totality approach and a custodial sentence to be imposed. I agree with the prosecution that a custodial sentence is appropriate in the circumstances of these offending regardless of the age of the accused which I usually give much leeway to. In these circumstances a totality approach is appropriate for each victim.
17. The young accused has prior offending of similar nature on 26 April 2017 to which he was sentenced in the Family Violence Court to supervision with the condition to attend the Alcohol and Drug Program with Salvation Army and to do 65 community hours. He completed all that yet he re-offended the following year for which he now appears.

Offending against Mr. Anderson

18. For the offending against Mr. Troels Anderson I take the aggravated burglary and aggravated robbery (x2) as the leading offences with maximum 14 years’ imprisonment; and take the starting point of 2 ½ years as the appropriate starting point and upgrade to 6 months for the similar offending in 2017. I deduct 6 months for his young age and give 25% discount for his early guilty plea of 8 months. This leaves 22 months or 1 year and 10 months.
19. For the offence of kidnapping against Mr. Anderson I impose a 1 year imprisonment.

Offending against Ms. Erickson

20. I take the offence of burglary with a maximum of 10 years’ imprisonment as the leading offence. The accused got on to the victim’s property by ramming through the chain link fence with a gate at the front of the victim’s property to gain access. The starting point of 3 years is appropriate, less 6 months for his young age and 25% for his early guilty plea of 7 months. This leaves 23 months or 1 year and 11 months.
21. The damage to the chain link fence estimated at $3000. For the offence of intentional damage with a maximum of 7 years’ imprisonment, I impose 12 months’ imprisonment.
22. Although the offence of intentional damage has a high penalty^[8] I find the offence of threatening to kill^[9] more aggravating and violent than that of the intentional damage in relation to Ms. Erickson. I impose a 12 months’ imprisonment and 3 months’ imprisonment for the offence of assault.

Sentence imposed

23. The accused is sentenced as follows:

a) Victim – Troels Anderson

(i) Aggravated burglary: 1 year and 10 months’ imprisonment;
(ii) Aggravated robbery: 1 year and 10 months’ imprisonment;
(iii) Kidnapping: 1 year imprisonment.

b) Victim – Melanie Erickson

(i) Burglary: 1 year and 11 months
(ii) Intentional damage: 12 months’ imprisonment;
(iii) Threat to kill: 12 months’ imprisonment;
(iv) Assault: 3 months’ imprisonment.

24. The imprisonment terms imposed for the offences under each victim are to be served concurrently. However, if the sentences imposed under each victim are to be concurrent, this will not reflect the seriousness of the offending carried out by the accused and especially so when there are two victims involved at two different locations. Pursuant to section 56(3) of Sentencing Act 2016 the sentences to be served concurrently in relation to the victim Melanie Erickson amounting to 1 year and 11 months is to be cumulative to the concurrent sentence of 1 year and 10 months for the victim Mr. Anderson.
25. The accused, Fiapapalagi Upuese is convicted and sentenced to 3 years and 9 months’ imprisonment. Less any time in custody.
    

JUSTICE TUATAGALOA

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^[1]S177(c) of Crimes Act 2013
^[2]S174(2)(3) & 175(1) of the Crimes Act 2013
^[3]S130 of Crimes Act 2013
^[4]S174 of Crimes Act 2013
^[5]S184(2) of Crimes Act 2013
^[6]S129 of Crimes Act 2013
^[7]S123 of Crimes Act 2013
^[8]S184(2) of Crimes Act 2013 – maximum 7 years imprisonment
^[9]S129 of Crimes Act 2013 – maximum 3 years imprisonment