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Police v Milo [2007] WSSC 36 (11 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LETUMAU KERETA MILO
TUMAU KERETA MILO
female of Vaitele-fou and Vavau.
Defendant

Counsels: M Longey for prosecution
RV Papalii for defendant

Ruling: 11 May 2007

RULING OF NELSON J. – Bail Application

Following hearing of the evidence the Court remanded the defendant in custody to be sentenced on 25 May 2007. The primary reason for that was the high probability of an imprisonment sentence given the current sentencing policy of the court for cases of forgery and theft as a servant. It was intended at the sentencing to use the defendants time in custody as an offset against whatever the courts sentence was going to be. This is certainly a common practice in the lower court but it would appear not to be one in the Supreme Court.

It certainly does not amount to the court closing its mind to sentencing options and any suggestion that that is the case is soundly rejected. A preliminary and tentative view of a likely sentence is exactly that; "preliminary" and "tentative" and it certainly does not pre-empt the court from reaching a different conclusion after hearing submissions from all parties.

One other reason for a remand in custody is once a defendant is convicted of a serious charge with a likely imprisonment penalty, the risk of flight is that much greater since the defendant most likely knows a sentence of imprisonment will probably eventuate.

In this case the defendant has sought bail through her counsel and in her written application relies on the fact that her mother who had a stroke in 2003 requires the defendant for full time assistance and daily care because the defendant is said to be the one solely in charge of the mothers care and needs. The application also asserts as supported by medical evidence that a remand in custody until sentencing may increase the risk of a further stroke or illness to the defendants mother given her fragile condition.

In presenting the application, counsel for the defendant added that bail is being sought not only on compassionate and humanitarian grounds but also to allow the defendant time to get her house in order in anticipation of likely incarceration. Counsel also cited a number of cases which show that the Supreme Court practice is to remand a defendant on bail conditions even after conviction on serious forgery and theft charges. Counsel further pointed out there is no evidence to suggest the defendant is likely to abscond pending sentence.

The prosecution have opposed bail and seek continuation of the remand in custody because that is the appropriate course where the likely penalty is one of imprisonment. They also argue the defendant was working full time when these incidents of forgery and theft occurred, meaning that there were and are other persons capable of caring for the defendants mother. The act of releasing the defendant and later imprisoning her may well operate adversely and add further strain and stress onto her family. They also point out that the risk of a further incapacitation to the defendants mother is a risk that will continue in any event after the defendant receives the courts sentence on 25 May. Finally the prosecution submits that the courts practice should vary from case to case. What is appropriate for one case is not necessarily appropriate for another.

The criteria for granting bail are well established. See the judgment of the Court of Appeal in Vitale & Cain v Police [1999] WSCA 4 which although dealing with a pre-trial application for bail is still a best practices guide for all bail applications. There the court outlined the main test for purposes of a bail application, as being firstly, the probability or otherwise of a defendant answering bail and attending to trial, and secondly the public interest. I accept there is no evidence or suggestion the defendant would not be appearing to receive the courts sentence. The court record shows she has consistently appeared in all previous callings of her case when she was required to. Nothing has been put before me to suggest she will do anything else on sentencing day. There is no evidence a risk of flight is for this defendant a real risk. The defendants arguments as to bail would appear to primarily fall under the second limb of the above referenced Court of Appeal test, that of the public interest, a criteria which includes any other special matter that is relevant in the particular circumstances of the case.

Dealing firstly with the argument that the defendant is required to take care for her ailing mother, I agree with counsel for prosecution that the evidence is the defendant was a full time worker of her former employer and had been so for some six (6) months prior to the offending that brought her before this court. The evidence also was the defendant spent the stolen monies on rental cars and going out with friends as well as on further gambling and playing the Strike-3 game at her place of employment. Her own evidence was she never gave any money to her parents and she did not once mention in her testimony her ailing mother. I very much doubt she plays a significant if any role in the caring for her ailing mother and even her mothers doctors report submits only indirect evidence of the hearsay kind that the defendant is the primary caregiver for the mother.

As for the argument of a possible further stroke to the defendants mother, I accept the prosecutions submission that this possibility is one that exists at all times and will continue to exist after sentencing. The basis of such a suggestion from the mothers doctor is also unclear as there is no evidence of any particular expertise on the part of the doctor concerned in the area of stroke victims and incapacities of this nature. Neither does he give a basis for such an open-ended diagnosis.

As to the argument of giving the defendant time to get her home in order and prepare her mother for the inevitable that would appear to me to be the more forceful but not a determinative argument for the defence. What however I have found a determinative argument is the fact of the prevailing practice of this court in cases of this nature. I have looked at the cases cited by counsel for the defendant as well as other cases of forgery and theft as a servant where defendants have been found guilty after defended hearings. They show the general practice of this court to be that notwithstanding the high likelihood of an imprisonment penalty, the court invariably grants bail pending sentence. It would not be in the public interest or promote confidence in the administration of justice if such an established practice was suddenly departed from by a judge of the court without good reason. There is no such good reason before me in my assessment and I have reached the conclusion that even though the defendants arguments mostly fail, for this reason only the defendant should be granted bail in accordance with the prevailing practice of this court.

Accordingly the defendant will be released forthwith on bail on the same conditions as before to appear for sentencing on 25th May 2007.

NELSON J.