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Police v Nu'u [2011] WSSC 110 (11 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

JERRY NU'U male of Satapuala.
First Defendant

AND:

SAFUA VAIMAILA male of Sina.
Second Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Defendants unrepresented.

Sentence: 11 July 2011

SENTENCE

The police summary of facts which the defendants have admitted says that the first defendant Jerry Nu'u is 24 years of age from the village of Satapuala, single and was employed as a cleaner at the Airport Authority. The second named defendant is 27 years of age of the village of Sina and was employed as a security guard. The two defendants have been jointly charged with robbery.

The facts of that according to the police summary are that on Wednesday 18 May this year in the late afternoon the defendants stopped a bus at Satapuala being driven by the victim in this matter. There was only one passenger in the bus and it was the buses last round for the day. When the bus pulled over the first defendant Mr Nu'u entered the bus holding a rock in his right hand and stood next to the victim bus driver. The second defendant stood outside the bus and reached in through the drivers window and grabbed the victim by his right arm and pulled him towards the outside using a substantial degree of force. While he held onto the bus driver the other defendant grabbed the tray which contained the money for the bus. And the summary goes on to state that the parties then beat up the victim and ran away. The amount stolen was $270. The victim drove straight to the Faleolo Police Station and lodged a complaint of robbery.

The victim impact report filed by the prosecution says the victim still feels the after effects of the assault on him by the defendants but no medical report has been filed to support the on going after effects which the victim claims to be still experiencing. There is also no evidence before me that the rock the first defendant was said to have had in his right hand was used to assault the victim. This can only mean that the rock was used only to intimidate and threaten the victim. The defendants can count themselves fortunate that those matters have not been clarified to the courts satisfaction because it affects the penalty that is about to be imposed on them. Because these lapses by prosecution means the sentence they receive will be lesser than what normally would be given to them if those matters had been satisfactorily addressed.

The offence of robbery at law carries a 10 years maximum penalty gentlemen. It is a serious charge and your offending is serious because you assaulted the victim in carrying out your robbery. The amount stolen too is not an insignificant amount. And robbery is something that is becoming too prevalent in this community. You will therefore both be serving prison terms for this matter. But there are significant differences between the two of you which means you will both be serving different terms. Jerry you have previous convictions for offences of violence whereas your co-defendant Safua is a first offender. I will deal with you first Jerry, Safua you may stand down for the moment.

Jerry Nu'u has according to his previous conviction card a conviction in 2007 for willful damage and for actual bodily harm. On that occasion he was fined and placed on probation by the court. That means instead of prison he was given a chance by the court to mend his ways. Jerry you have failed to make use of that opportunity. Further, your offending has escalated with this offence. You are becoming a social menace prone to violent offending. For this matter of robbery you are convicted and sentenced to 12 months in prison but your remand in custody time awaiting sentence is to be deducted from that term.

You are also charged Jerry with possession of narcotics and that arises out of the fact that when you were arrested for the robbery matter a search of you uncovered 28.9 grams of dried marijuana leaves which were found by the police in your pocket wrapped in plain paper. That is a significant quantity of marijuana and is more than is required for occasional recreational use. An appropriate penalty for that drug offending is 12 months in prison but I note you have pleaded guilty to that charge and that this is your first drug offence. I therefore reduce that term to 6 months in prison. For the narcotics charge you will convicted and sentenced to 6 months in prison. But as that is a separate offence to the robbery offence that penalty is cumulative to your robbery sentence. In other words you will serve a sentence of 18 months in prison for these matters less your remand in custody time.

Safua you were a partner of the first defendant in carrying out this robbery and you are as guilty as him of assaulting and robbing this bus driver. However unlike your co-defendant you are a first offender, you have a clean record and you have also pleaded guilty to the charge.

In respect of the robbery charge against you, you will be convicted and sentenced to 6 months in prison but your remand in custody time awaiting sentence is to be deducted.

............................
JUSTICE NELSON