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Police v Saveaalii [2008] WSSC 7 (27 February 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

IOANE VILIAMU SAVEAALII
male of Faatoia.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Sua-Mailo for prosecution
Accused in person

Sentence: 27 February 2008

SENTENCE

The charge

1. The accused appears for sentence on one count of robbery which carries a maximum penalty of 10 years imprisonment. To the charge he has pleaded guilty at the earliest opportunity.

The offending

2. The accused is an 18 year old male who has been working since 2005 as a caretaker and gardener for the victim who is an expatriate businessman from Australia living at Afiamalu

3. On Tuesday, 16 October 2007 around 9.30am, the accused arrived at the victim’s residence at Afiamalu with a relative. At 12 noon after the victim retired to his room, the accused obtained from the victim’s fridge wine and beer which he drank with his relative as they mowed the lawn. When the accused and his relative became intoxicated, they decided on a plan to rob the victim.

4. In executing their plan, they flattened the tyres of the victim’s car and cut off the victim’s telephone lines. They then walked into the victim’s house and the accused stashed the victim’s binoculars and camera into his bag which his relative held.

5. At about 2pm whilst the victim was asleep, the accused and his relative charged into the victim’s bedroom with the accused being armed with a carving knife while his relative was armed with a machete. The victim tried to pull the knife off from the accused but cut his left thumb during the struggle that ensued.

6. The accused then grabbed the victim’s shorts, held the knife towards him and said, "Give me the money or I will kill you." The victim handed over all the cash he had which was $130 but the accused threatened him and demanded more. The victim wrote out a cheque for the amount of $1,000 and then told the accused in an attempt to rid of them to hurry up and leave because the bank closes at 3pm.

7. The accused and his relative then caught a ride into Apia and headed straight to the bank to cash the cheque. However, they were unsuccessful. It was an unconverted try. On Thursday 18 October 2007, the accused was arrested by the police.

The accused

8. The accused, as it appears from the pre-sentence report, dropped out of school at Year 9 because he did not feel like going to school. In the same year which was 2004, he was charged and convicted of theft and wilful damage and placed on probation by the District Court for 12 months. He was then about 15 years old.

9. As the pre-sentence report and attached testimonials also show, the accused is generally a person of good character. However, he drinks and smokes which are his weaknesses. According to what the accused’s mother told the probation service, when her son gets drunk he is totally a different person.

10. Subsequent to this incident, the accused and his parents went and apologised to the victim. All the stolen items, including the cheque for $1,000, have been returned to the victim who has written to the Court seeking leniency on the accused, saying that the accused has always been totally honest and a very good worker prior to this incident. He has even sought to have his complaint withdrawn.

The victim

11. The victim, as it appears from the pre-sentence report and his letter to the Court, has completely forgiven the accused. He appears concerned and sympathetic for the accused due to his alcohol problems.

12. However, whilst the victim’s forgiving and sympathetic attitude is laudable, it is only in limited circumstances that such attitude will have a mitigating effect on the sentence. In Sentencing in Tasmania (2002) by Professor Kate Warner, the learned author says at 3.402, p.87:

"A victim’s wishes or a forgiving attitude cannot be given priority and be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. However, in some cases Courts have been prepared to give a forgiving attitude some weight. In McGhee (1994), a case of attempted murder, where the victims had indicated they had forgiven the offender and did not want him to be punished, Green CJ said the victim’s attitude and wishes whilst not determinative are factors which militate against giving much weight to considerations of retribution and denunciation. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender-emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of the penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim." (emphasis mine)

13. On Thursday 18 October 2007, two days after the robbery, the victim was seen by a doctor. According to the doctor, as stated in his report, the victim told him that what happened created fear for his life as he thought the offenders were going to kill him. The left thumb of the victim was slightly injured as a result of having to wrestle a knife off from one of his assailants.

14. The doctor concludes in his report that he did not find any permanent detrimental effect of the event on the victim physically, but the victim needed to have tranquilizer medication to calm him down mentally for a few days.

Aggravating factors

15. There are several aggravating factors in this case. This was a planned robbery. In executing their plan, the accused and his relative first flattened the tyres of the accused’s car and cut off the victim’s telephone lines. This must have been for the purpose of facilitating their get away. The accused was also armed with a carving knife and his relative with a machete when the accused grabbed the victim’s shorts while he was asleep held the knife towards the victim and said "Give me the money or I will kill you". When the victim handed over all the cash he had which was $130, the accused again threatened him and demanded more. All of this constitute threats and intimidation using words and weapons. So the victim wrote out a cheque for $1,000 which the accused and his relative tried to cash. The victim’s left thumb was also injured as he tried to wrestle off the knife from the accused. As expected in such a situation, the victim was under great fear for his life as he thought his assailants were going to kill him. This case also involved a grave breach of trust as the accused at the time of the offending has been employed by the victim as a caretaker and gardener for about two years. The victim was also 64 years old at the time of this offence and therefore physically vulnerable. The other aggravating factor in this case is that the offence was committed in the victim’s bedroom which constitutes home invasion. The accused also has a previous conviction for theft and wilful damage in 2004 before he committed the present offence in October 2007. I also take into account the impact of the offending on the accused; he had to take tranquilizer medication for a few days to calm him down mentally.

Mitigating factors

16. The mitigating factors in this case would be the accused’s plea of guilty at the earliest opportunity and the fact that the items of which he robbed the victim have been returned. I accept from the material placed before the Court that the accused is remorseful but it also appears that unless something is done about the accused’s alcohol problems he is likely to get on the wrong side of the law again.

17. I have perused the material presented to the Court on the accused and in my respectful opinion they do not constitute a mitigating factor in favour of the accused.

18. The sympathetic and forgiving attitude of the victim is also not a mitigating factor in this case for the reasons already given. I would also not consider the accused’s young age of 18 years as a particularly mitigating factor. The Court in 2004 must have taken into consideration the accused’s young age at the time when the accused was sentenced to probation for 12 months on theft and wilful damage. However, that does not seem to have worked for the accused.

The decision

19. In assessing what should be the starting point for sentence in this case, I have to bear in mind the maximum penalty for robbery which is 10 years imprisonment. I also have to bear in mind that there is a wide range of conduct and circumstances which can constitute robbery. As a consequence of this, there is no one specific starting point but a range of starting points for sentence in this type of crime depending on the circumstances of the particular case: see the judgment of the New Zealand Court of Appeal in R v Mako [2000] 2 NZLR 170.

20. Deterrence and protection of the community, particularly the expatriate community who are so often the victims in robbery cases, are important considerations in this case.

21. Applying the approach for fixing starting points for sentence as set out in R v Taueki [2005] 3 NZLR 372 and adopted and applied in Attorney-General v Matalavea [2007] WSCA 8; Police v Faulkner [2007] WSSC 80; and Police v Enelagi [2007] WSSC 95, and having regard to the aggravating features of the offending, as there are no mitigating features relating thereto, the starting point for sentence in this case should be 4 years. I would then deduct 1/3 for the accused’s plea of guilty at the earliest opportunity and that leaves 2 years and 8 months. I will deduct another 4 months for the other mitigating factors including a limited discount for the young age of the accused who is a second offender and that leaves 2 years and 4 months. For the impact of the offending on the victim as set out in the report by the doctor who medically examined the victim, I will add on another 2 months. That brings up the sentence to 2 years and 6 months.

22. The accused is convicted and sentenced to 2 years and 6 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution