Police v Tualima [2021] WSSC 17 (16 April 2021)

SUPREME COURT OF SAMOA
Police v Tualima [2021] WSSC 17

Case name:	Police v Tualima
Citation:	[2021] WSSC 17
Decision date:	16 April 2021
Parties:	POLICE (Prosecution) AND LAUITITI TUALIMA male of Tafaigata Prison. (Defendant)
Hearing date(s):
File number(s):	S1162/16, S1164/16 & Charging document 4/02/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of causing grievous bodily harm convicted and sentenced to five (5) years in prison, that is to be served cumulative to whatever prison terms he is serving now. On the charge of aggravated robbery convicted and sentenced to five (5) years in prison concurrent term. On the charge of burglary convicted and sentenced to three (3) years in prison also concurrent term. On the charge of theft noting that the non-money properties have been recovered but also that he has previous convictions convicted and sentenced to two (2) years again concurrent term. So in effect then his total term is five (5) years cumulative to his present terms
Representation:	T Sasagi for prosecution K Koria for defendant
Catchwords:	aggravated robbery – burglary –grievous bodily harm– previous conviction –theft
Words and phrases:
Legislation cited:
Cases cited:	Tele’a v National Prosecution Office [2017] WSCA 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LAUITITI TUALIMA male of Tafaigata Prison, Satapuala and Luatuanuu.
Defendant

Counsel:
T Sasagi for prosecution
K Koria for defendant

Sentence: 16 April 2021

S E N T E N C E

1. The undisputed summary of facts from the Police says the defendant is a 28-year-old male currently serving a term of imprisonment. The victim is a 51-year-old Chinese male of Vaitele-uta married with a family.
2. On 24 April 2016 at about 11:30 at night the defendant and a co-defendant entered the victims house through an unlocked back door. They rummaged through the house and took several items described as two (2) school bags a bottle of cologne and some mens shoes. They heard someone returning to the house so they left through the back door and waited outside by the gate to the property. It was the victim arriving home after spending a night out with friends and he noticed that the house was in a mess with draws pulled out and clothes all over the floor.
3. The victims wife and son were not at home at the time so the victim thought this might have been created by his wife. The victim went out to his car to retrieve some cigarettes and at that time was assaulted by the defendant and his partner. The summary says the defendant used the machete that was lying against the gate to strike the victim on the back of the head. The victim fell to the ground and while on the ground the defendant kicked him a number of times. They took off his pants which had his wallet in it containing some $2,200.00 in cash. Making the total value of the properties of the victim stolen $2,650.00.
4. The defendant and his partner then left the scene and after the matter had been reported to the Police, Police apprehended the defendant and recovered only $15.00 in cash. But it seems the Police were also able to recover the other properties of the defendant.
5. The victims medical report indicates that when he was seen at the hospital at 4:00 o’clock that morning he had a small 1cm laceration above the left ear. His wound was stitched and he was discharged home on oral medication.
6. As a result of this robbery the defendant now faces charges of grievous bodily harm, aggravated robbery, burglary and theft to which he has pleaded guilty. The defendants previous conviction record indicates he is a regular inmate of Tanumalala Prison Hotel. He has a number of burglary and theft convictions as well as convictions for robbery and other offences of violence. He is a veteran offender.
7. It is essential that he not only be held accountable for these crimes but also that the public be protected from people like this. And to continue to send a message to the community that if you indulge in these sorts of activities then you have checked yourself into Tanumalala Hotel.
8. I deal firstly Lautititi with the grievous bodily harm charge against you which carries a ten (10) years max. The Sentencing Bands laid down by the Court of Appeal in Tele’a v National Prosecution Office [2017] WSCA 4 applies to this case. Taking into account all the circumstances I agree with both counsel that a start point of six (6) years in prison is appropriate given that a machette was used to strike a blow to the victims head. A blow that the victim was not expecting and was delivered in order to incapacitate and rob him. I also agree with counsel that an uplift of six (6) months for the defendants previous offences of violence is in order. Making a total start point of sentence of six and a half (6½) years.
9. The defendant is not a first offender or a person of good character but he did plead guilty early to the offences and thus saved the courts time and also the necessity for the victim to give evidence. I will deduct one and half (1½) years to reflect those factors.
10. On the charge of causing grievous bodily harm convicted and sentenced to five (5) years in prison, that is to be served cumulative to whatever prison terms he is serving now.
11. On the charge of aggravated robbery this carries a maximum penalty of fourteen (14) years. In the present case the defendants had already taken properties from inside the house and they could have left with just those. Instead they chose to assault the victim with a sapelu and rob him of his wallet and money which contained a considerable sum. This is a serious aggravated robbery with a moderately high degree of violence. A similar start point of five (5) to six (6) years in prison is appropriately upgraded because the defendant has previous convictions for robbery for which he had already been sentenced to prison terms. There should also be a further one (1) year uplift to reflect the high degree of violence and the use of a weapon in the robbery. This leads to a seven (7) year start point for sentence. Two (2) years will be deducted for his guilty plea and for the recovery of the properties.
12. On the charge of aggravated robbery convicted and sentenced to five (5) years in prison concurrent term.
13. On the charge of burglary convicted and sentenced to three (3) years in prison also concurrent term.
14. On the charge of theft noting that the non-money properties have been recovered but also that he has previous convictions convicted and sentenced to two (2) years again concurrent term.
15. So in effect then his total term is five (5) years cumulative to his present terms.

JUSTICE NELSON