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Police v Filipo [2013] WSSC 41 (19 June 2013)

SUPREME COURT OF SAMOA

Police v Filipo, Faavae, Sauvao and Tamate [2013] WSSC 41

Case name: Police v Filipo, Faavae, Sauvao and Tamate

Citation: [2013] WSSC 41

Decision date: 19 June 2013

Parties: POLICE and SIU FILIPO male of Mulifanua and Mulinuu, First Defendant, VAA FAGOTA FAAVAE male of Afega and Malie, Second Defendant, SHANE SAUVAO male of Falelatai and Faleasiu, Third Defendant and MIKA TAMATE male of Faleasiu, Fourth Defendant

Hearing date(s): 27 March 2013

File number(s): S1549/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order: (Sentence)

Representation:
Phaedra Valoia for prosecution
Alex Su’a for 1^st defendant
Maiava Peteru for 2^nd defendant
Accuseds in person

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

SIU FILIPO, male of Mulifanua and Mulinuu

First Defendant

AND:

VAA FAAGOTA FAAVAE, male of Afega and Malie

Second Defendant

AND:

SHANE SAUVAO, male of Falelatai and Faleasiu

Unrepresented

AND:

MIKA TAMATE, male of Faleasiu

Unrepresented

Counsel:

Phaedra Valoia for the prosecution

Alex Su’a for 1^st defendant

Maiava Peteru for 2^nd defendant

Two defendants unrepresented

Sentence: 19 June 2013

S E N T E N C E

1. All four defendants appear for sentence on the charge of robbery which carries a maximum penalty of not more than 10 years imprisonment. The defendants Vaa Faagota and Siu Filipo pleaded guilty. They are 16 and 34 years old respectively. The others, Shane Sauvao and Mika Tamate, were found guilty after a defended hearing. They are 22 and 19 years old.

Factual Background

2. On the morning of Sunday the 9^th September 2012 the four defendants walked from the bus shelter by the Apia fish market to the seawall behind the government buildings and sat under a tree close to the seawall. They had spent the night at the bus shelter. All of them are unemployed and from families several miles out of Apia.
3. When Siu Filipo the oldest of the defendants saw two expatriate females walking along the seawall he told the others to prepare to rob the females of their handbags. Va’a Faagota, the youngest of the defendants, and Mika the second youngest were told to snatch the bags and run. Vaa and Mika managed to get one of the bags, ran away and caught a taxi. Siu and Shane also walked away from the seawall.
4. A passerby went to the aid of the victim and contacted the police. The stolen bag contained $600 cash, credit card, iphone, drivers licence, wallet, baseball cap, towel, bank cards.

Defendant Siu Filipo

5. I will deal with this defendant separately.
6. Defendant Siu according to his counsel was unemployed at the time of his offending but Siu told the probation service that at the time of his arrest he was employed on a fishing boat earning approximately $400 per week. In fact he was apprehended while he was preparing to go on another fishing expedition.
7. Siu could not have been preparing to go on a fishing trip when he was arrested on the day of the robbery, because both he and Mika were both arrested soon after the robbery away from the fish market where the fishing boats were moored.
8. Siu also told the court through his counsel that although he did suggest to the others to snatch the victim’s bags it was by way of a joke which he never thought would be acted upon. And he did call to the two defendants to return as the two defendants approached the victim. Again this rather childish beefed-up excuse differs significantly from the testimony given in the defended hearing of charges against Shane and Mika as well as the police statements of the other defendants. This feeble attempt by Siu to mitigate his involvement if accepted would be a betrayal of common sense.

Prosecution’s Submissions

9. Prosecution submits that an imprisonment sentence of two and half years should be imposed, which in my view suggests a starting point for sentencing of about four years.
10. Aggravating factors include:
    • (a) the defendant being the instigator of the attack
    • (b) the element of premeditation;

(c) the impact of the offending on the defenceless, vulnerable victim; and
(d) the status of the defendant as repeated offender

Defence Submissions

11. The early guilty plea of the defendant is not contested by the prosecution as a mitigating factor in the reduction of sentence. But it must be said however that he could never have escaped a conviction.
12. It is also submitted that the defendant should be treated as a first offender even though it is alleged by the prosecution the defendant was convicted in 2004 in the District Court. However other than the 2004 conviction he is currently serving imprisonment sentences for other offences which counsel did not refer the court to in his submissions. Since March 2013 he has been imprisoned for offences involving theft and violence.

Discussion

13. This was a planned robbery by a group of men who were unemployed, have spent the night away from home, and were obviously in need of food and money.
14. Deterrence and protection of the community, particularly the expatriate community who are often the victims of robbery cases, are important considerations in this case.
15. It is not surprising that the cash stolen has not been recovered. Although some of the properties stolen have been returned, their condition upon return was not the same as before. Undoubtedly the offending has impacted significantly upon the victim as conveyed in the victim’s impact report, a factor which exacerbated the offending.
16. In the circumstances a starting point of 4 years is considered appropriate. For his guilty plea I deduct 1 year. I will not increase the sentence for his previous convictions for the reason that those convictions were recorded after the commission of this offence.

Sentence

The defendant Siu is sentenced to 3 years imprisonment less any time he has spent in custody.

Defendants Shane, Mika and Va’a

17. The two defendants Shane and Mika were found guilty after a defended hearing; they had no defence; they wasted the court’s time. They are both from the village of Faleasiu.
18. Defendant Mika originally lived at the village of Utualii. He told the probation service that prior to the commission of the offence he was staying with his uncle as his parents were living overseas. His uncle told the probation service last month (May) that he will continue to care for Mika. But Mika told the court he was living with his mother.
19. Mika was banished from the village of Utualii. Banishment is a traditional punishment given to village residents who have committed the most serious of crimes or misconduct.
20. Mika like other young offenders has had an unstable family background. Absence of sound parental guidance often results in young persons on the wrong side of the law which unfortunately then become a burden on the state and society. These young juveniles naturally cause a nuisance to society.
21. Defendant Shane is likewise from a broken family, has had no educational training and has never been in employment. He is a product of an unsupervised upbringing. The probation service summed it up as tough upbringing with no stable fatherly figure to inspire and keep his life on track.
22. The third defendant Va’a Faagota is 16 years and is therefore pursuant to the provisions of the Young Offenders Act a young person who could have been sentenced in the Youth Court. He is also from a broken family with an extremely low level of education.
23. As a result of his offending which prompted his father to disown him, Va’a has sought refuge with his mother who according to counsel and the probation service has welcomed her son with open arms and has committed to provide the necessary guidance he needs.
24. The circumstances of the offending, the ages of the three defendants and their unfortunate family background in my view justify a disparity in sentences to be imposed. In doing so the court must try and set some sense of accountability in all defendants for the harm they did, not just to the complainant, but also to the community. It must also try and promote a sense of responsibility in them, denounce what they did, and try and deter other young men from behaving in a similar way.
25. The court accepts that the lengthy time these three defendants have spent in custody is itself a form of penalty and an indication to them of the undesirable consequences of any future re-offending. This is their final warning.

Sentence

(i) The defendants Mika and Shane are convicted and placed on Probation for 2 years on the following conditions:

• (a) they will live and reside at Faleasiu during the term of probation,
• (b) they will perform 100 hours community work;
• (c) they will not leave Faleasiu village between the hours of 7pm and 7am.

(ii) The defendant Va’a is convicted and placed on Probation for 2 years on conditions:

• (a) he will live and reside with his mother at Malie
• (b) he will do 100 hours community work
• (c) he will not leave Malie between the hours of 7pm to 7am.
• (d) he will attend any programme as directed by the Probation Service.
  

JUSTICE VAAI