Police v Tomeniko [2021] WSSC 49 (22 October 2021)

SUPREME COURT OF SAMOA
Police v Tomeniko [2021] WSSC 49

Case name:	Police v Tomeniko
Citation:	[2021] WSSC 49
Decision date:	22 October 2021
Parties:	POLICE v PANEVINO MASELINO TOMENIKO and LEON MIKAELE PETELO
Hearing date(s):	29 September 2021
File number(s):	S1767/20, S1768/20
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- I am satisfied there was a rock, and although it was discarded when it was initially picked up it was intended to be used. Accordingly, I find Panevino Maselino Tominiko guilty of the offence particularised in S1768/20. - I am also satisfied that Leon Mikaele Petelo assaulted Lila Ale by pulling her along the middle of the road, accordingly Leon Mikaele Petelo, you are found guilty of the offence particularised in S1726/20. - In terms of the offence of Aggravated Robbery, I am not satisfied that this offence has been committed, but I am satisfied that Leon Mikaele Petelo committed a theft of the back-pack. Leave is granted to amend S1767/20 to a charge of theft against Leon Mikaele Petelo only, and I find Leon Mikaele Petelo guilty of the amended charge. - Although I have found in the defendants’ favour in relation to the most serious charge, I am nevertheless concerned about the dangerous situation which unfolded that night. Members of the public are entitled to be able to walk around the streets of Apia without being the victims of street violence. I am particularly concerned about the circumstances whereby one of the offenders considered it appropriate to drag along the road a woman who was pregnant. It must have been an extremely frightening experience for her. - This matter is adjourned to a sentencing date of 26 November 2021 at 12:30pm, before me. I require preparation of a Probation report, victim impact report, sentencing memoranda; all to be filed and served by 23rd November 2021.
Representation:	I Tanielu for prosecution S Chan Chui for first defendant T V Lei Sam for second defendant
Catchwords:	aggravated robbery – armed with a dangerous weapon –assault – guilty – robbery – street violence –threat of violence –– theft
Words and phrases:
Legislation cited:	Crimes Act 2013 ss.176 & 177
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PANEVINO MASELINO TOMENIKO male of Taufusi, Leauvaa and Afega.
First Defendant

A N D

LEON MIKAELE PETELO male of Palisi and Lalovaea.
Second Defendant

Counsel:
I Tanielu for prosecution
S Chan Chui for first defendant
T V Lei Sam for second defendant

Hearing: 29 September 2021
Submissions: 29 September 2021
Reserved Decision: 22 October 2021

RESERVED DECISION OF PERESE CJ

1. After an appointment at the National Hospital at Motootua on the night of 6 November 2020, at about 11pm, Vaeuna Afiafi and his wife Lili Ale (“the complainants”) decided to walk home to Toamua; they preferred the exercise from a walk as opposed to a taxi ride home. They walked via Taufusi where they came upon a group of 4 or 5 people who were drinking alcohol.
2. Three young men from this group decided to confront the complainants. One of the men, Pouena Taiulu Eti threw a punch at Vaeuna. Mr Eti has since pleaded guilty to a charge of assault.
3. The sequence of events appears to be that following the assault, the couple ran off down the road towards the lights at the three corners on Taufusi Road and Vaea Street. They were pursued by both the defendants (Panevino Tomeniko and Leon Petelo). The couple became separated, and Lili found herself in the middle of the road being dragged by Leon Petelo (“Leon”). Meanwhile, Vaeuna was confronting Panevino Tominiko (“Panevino”) a little further up the road opposite a bottling business.
4. Lili’s evidence is that she saw Panevino pick up a rock, and she yelled out to warn Vaeuna to be aware of the man with the rock. She described the rock as something black, and she saw the outline of the rock when Panevino threw it away on the road shortly after she had called out the warning to her husband.
5. Vaeuna described the incident as follows:^[1]
   • Ma te taunuu tonu lava ile mea la e iai moli ma vaai mai ua taufetuli atu nisi foi taulele’a e toalua o lea la na matou oo ai loa i luma o le Apia Bottling o iina la lea na taumafai ai loa le isi alii e ave lo’u toalua agai le isi itu o le auala, ae peitai ua valaau mai lo’u toalua e vaai le maa, ae peitai na ou savali mai ii le taulele’a lea na sa savali atu ma le maa, ae ou toe faalogo atu ua pa’u lo’u toalua i luga o le auala, o lea la na ou toe foi mai ai loa, o iina la lea na aveeseina ai loa le ato fa’afafa lea na ou fafaina na ou taumafai e faatu luga lo’u toalua o lea na pa’u luga o le ogatotonu o le auala
6. Lili’s evidence is that she thought she was being separated from her husband so that her husband would come to rescue her; if he did he would be caught by the men and taken back to the rest of the group to get beaten:^[2]
   • sa ou iloa lava e manao e fasi tele lo’u toalua ona ua le maua lelei le mea sa faapena ona o atu ai ia ma’ūa ile itu ala i tai, e mana’o e tata’i lo’u toalua ile mea lae inu ai e fasi ai, pei o le ala lea e mafaufau iai ile mea lae mana’o iai
7. Vaeuna could not describe what the rock looked like because it was concealed as it was being carried.
8. Having carefully reviewed the evidence, and having seen and heard the complainants, I am satisfied there was a rock, and that it was intended to be used. However, thankfully, it was not used either in an act of aggression or in retaliation.
9. After Vaeuna returned to help his wife get up from the road, Leon appears to have grabbed a back-pack which Vaeuna had been wearing. But it appears Vaeuna’s reflexes were too quick for Leon, and Vaeuna snatched it back. Panevino and Leon eventually left the complainants alone after Lili was able to use her mobile phone to call the Police, who duly attended.
10. The issues in this case:
    1. Did the defendants assault the complainants?
    2. Did the defendants commit an aggravated robbery?
    3. If the answer to these questions are no, then did they commit some other offence?

Aggravated Robbery

11. An aggravated robbery is a criminal offence. As specified in s.177 of the Crimes Act 2013 (“the Act”):
    • 177. Aggravated robbery – A person is liable to

imprisonment for a term not exceeding 14 years who:

(a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person; or
(b) being together with any other person or persons, robs any person; or
(c) being armed with any offensive weapon or instrument, or anything appearing to be such a weapon or instrument, robs any other person.

12. In relation to Leon, the Prosecution sought to rely on s.177(b), whereas in relation to Panevino, the Prosecution relied on s. 177(c).
13. An element of the offence of aggravated robbery is that there needs to be a robbery. Robbery, is an offence under s. 176 of the Act:
    • 176. Robbery – (1) Robbery is theft accompanied by violence

or threats of violence, to any person or property, used to extort the

property stolen or to prevent or overcome resistance to its being stolen.

(2) A person who commits robbery is liable to imprisonment

for a term not exceeding 10 years.

14. The main element of the offence of robbery is that it is a theft, which is accompanied by violence or the threat of violence....used to extort the property stolen or to prevent or overcome resistance to its being stolen.
15. The evidence falls well short of demonstrating beyond reasonable doubt that the defendants used violence or the threat of violence to extort the back-pack from Vaeuna. Mr Tanielu attempted to argue when the defendants dragged Lili away they were trying to lure Vaeuna to go towards Leon, so they could rob him of the back-pack. Mr Tanielu’s proposition is that the two men acted together to carry out the theft of the back-pack.
16. I consider the prosecution’s proposition to be dubious at best. It would seem to me that had the defendants wanted to rob Vaeuna of the back-pack they would have both gone after Vaeuna, rather than for only one of them to confront Vaeuna and the other to try and lure him to the middle of the road to rob him there. There was no evidence of anything being said by either of the defendants and overheard by either of the complainants, in support of Mr Tanielu’s submission. I am satisfied that Leon and Panevino were actually intent on doing physical harm to Vaeuna. Lili, apprehended the dangerous situation which was unfolding. She saw Panevino grab a rock and then discard it when she called out to her husband to watch out. She apprehended the trap being laid for her husband. She spoke in terms of safety, saying that her husband returned to save her. A sinister situation was brewing, and it did not appear to be about robbery of this couple, it was more likely about inflicting physical harm to the man, or both of the complainants. Leon grabbing the back-pack in those circumstances can be fairly described as opportunistic.

Conclusion

17. I am satisfied there was a rock, and although it was discarded when it was initially picked up it was intended to be used. Accordingly, I find Panevino Maselino Tominiko guilty of the offence particularised in S1768/20.
18. I am also satisfied that Leon Mikaele Petelo assaulted Lila Ale by pulling her along the middle of the road, accordingly Leon Mikaele Petelo, you are found guilty of the offence particularised in S1726/20.
19. In terms of the offence of Aggravated Robbery, I am not satisfied that this offence has been committed, but I am satisfied that Leon Mikaele Petelo committed a theft of the back-pack. Leave is granted to amend S1767/20 to a charge of theft against Leon Mikaele Petelo only, and I find Leon Mikaele Petelo guilty of the amended charge.
20. Although I have found in the defendants’ favour in relation to the most serious charge, I am nevertheless concerned about the dangerous situation which unfolded that night. Members of the public are entitled to be able to walk around the streets of Apia without being the victims of street violence. I am particularly concerned about the circumstances whereby one of the offenders considered it appropriate to drag along the road a woman who was pregnant. It must have been an extremely frightening experience for her.
21. This matter is adjourned to a sentencing date of 26 November 2021 at 12:30pm, before me. I require preparation of a Probation report, victim impact report, sentencing memoranda; all to be filed and served by 23^rd November 2021.

CHIEF JUSTICE

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^[1] Transcript p 4
^[2] Transcript p 19