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Police v Nauer [2017] WSSC 161 (18 December 2017)

SUPREME COURT OF SAMOA
Police v Nauer [2017] WSSC 161

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LAKI NAUER male of Lotopa.
Accused

Counsel:
A Matalasi for prosecution
Accused in person

Sentence: 18 December 2017

S E N T E N C E

The Charges:

1. Laki, you have pleaded guilty to the following charges:
   • (i) Intentional damage to the security gate at Tafaiagata Prison valued at $4,000.00 (1777/17) danger to life, having a maximum penalty of up to 14 years imprisonment;
   • (ii) Intentional damage to the pad lock of cell room 8 valued at $3,000.00 (S1775/17);
   • (iii) Intentional damage to the steel gate at Tafaiagata Prison valued at $12,000.00 (1771/17);
   • (iv) Breaking Prison (S1779/17) with a maximum penalty of up to 5 years imprisonment;
   • (v) Trespass on to Tafaigata Prison (S1780/17) carrying a maximum penalty of 6 months imprisonment;
   • (vi) Dangerous Driving (S1772/17) with a maximum penalty of 2 years imprisonment or a fine of $1,000.00;
   • (vii) Unlicensed driving (S1773/17) with a fine of up to $200.00;
   • (viii) Driving an unregistered vehicle (S1778/17) with a fine of up to $200.00; and
   • (ix) Threatening Words (S1774/17) with a fine of up to $200.00.

The Offending:

2. According to the Summary of Facts accepted by you, after midnight on Sunday 13 August this year which was father’s day, you drove a Ford Van at speed and in a dangerous manner and rammed the Tafaigata Prison Gates. You continued into the Prison grounds entrance ramming the boom gate of the Prison. Standing there at the boom gate was a prison officer who was almost injured by your action.
3. You then drove into the Prison and stopped immediately in front of cell 8 where your father was sleeping. Prison officers came to your location and you threatened them by saying “omai pe kou ke fia aai pulufaga”.
4. You then walked to Cell 8 and struck the pad lock to cell 8 with a ‘uamea’ 4 times. You called to your father that you had come for you both to leave together. You had no authority to be on the Prison grounds that morning.
5. Your father told you to switch the car off and for you both to speak. Police were then contacted by the Prison Services.
6. The damage to the prison steel gate was valued at $12,000.00, the security boom gate $4,000.00 and the pad lock $3,000.00.
7. At the time of your offending, you did not hold a valid driver’s licence and the Ford van was an unregistered vehicle. You were also at that time on bail having pleaded guilty to intentional damage to a police vehicle, dangerous driving and unlicensed driving.
8. In driving the van on the 13^th August, you were in breach of your bail conditions confirmed by you which included a condition that you were prohibited from driving a car.
9. You told the Probation Service that you had been drinking large amounts of Russian Vodka. You were frustrated with prison management for not releasing your father for father’s day. You drove through the prison gate and boom gate while a prison officer tried to stop you.

The Accused:

10. You are a 25 year old single male of Lotopa. You had worked as an engineer at a mechanic business at Pesega. You told the Court that you are now married and have a 4 month old child.
11. Your father remains in prison serving a prison term. You have the support of your mother who seeks leniency in your sentencing. She addressed the Court and is clearly very distressed by your matter now before the Court.
12. On the 25^th August 2017, you were sentenced for your earlier offending involving the intentional damage to a police car and dangerous and unlicensed driving. A non-custodial sentence was imposed including community work and fines. You have not apparently completed any component of your community work sentence nor did you attend the programs ordered.

The Victim:

13. The victim of your offending are the prison officers that you threatened together with the prison officer whose life you endangered as you drove through the Prison gates.

Aggravating features:

14. The aggravating features of this matter are:
    • You committed this offending whilst on bail for similar offending;
    • You committed this offending in breach of bail conditions that expressly prohibited you from driving a car;
    • The intentional damage committed by you was with the purpose of facilitating the unlawful breaking out of prison of your father;
    • You placed the life of a prison officer executing his prison duties in danger;
    • the value of the damage caused by you is substantial and was caused to property belonging to the Prison Service;
    • Your offending involved threats against prison officers; and
    • your actions were dangerous and represented a gross risk to the prison officers on duty that night and was to a material degree premeditated.

The mitigating features:

15. There are no mitigating features in respect of the offending. The only mitigating feature personal to you is your early guilty plea. You cannot be said to be of good character nor genuinely remorseful for your offending and accordingly, no credit can be deducted in mitigation on those factors.
    

Discussion:

16. Lucky, you were sentenced on the 25^th August this year for intentional damage to a police car. There, you used a car to ram a police car to evade police. While appearing before the Court in that matter and awaiting your sentencing, on the 13^th August, you again used a car to ram the Prison gates with the intention of freeing your father from custody despite the bail conditions prohibiting you from driving a car. Your actions on the morning of the 13^th August this year can only be described as grossly foolish and very dangerous.
17. You have demonstrated a gross disregard for the law, to authority, the Court and since the 25^th August, apparently, the community based sentence imposed on you by the Court. You represent an unacceptable and serious risk to the community. The victim of your action in this case was the Prison Service Officers. You placed the life of that prison officer manning the Prison gate at risk. Where victims are especially vulnerable to violence because of their occupations, such as police and prison officers, the Courts will frequently impose a deterrent sentence. The sentence that will therefore be imposed on you will be a deterrent sentence to deter you and others from committing similar offending, to denounce your conduct and to protect the community from you. It must be clear that any person who carries out such a serious attack on a prison facility and who places the lives of prison officers at such risk face serious consequences.
18. You have asked for a non-custodial sentence and a fine. To impose such a penalty would send the wrong message to the community and may encourage others to break-prison to free family members in such dangerous circumstances in future. That would place prison officers as well as prison facilities themselves at unacceptable risk of harm. There is no question that a custodial sentence is necessary for the reasons I have outlined. Your criminal culpability is very high.
19. Before I proceed to formally sentence you however Lucky, your mother addressed the Court. She has consistently expressed her love and support for you. You are now also married and have a 4 month old child. I urge you to consider where your life is going and change your life, if not for you, for those who love you. Alcohol is a serious contributing factor to your offending and you will need to address that problem. Support is available through the Prison Service and the Probation Service to address this in due course.
20. Now, this is a case where it is appropriate to apply the totality sentencing principles because the offences for which you are appearing were all part and parcel of the same offending. I will therefore adopt information S1777/17 as the lead charge for sentencing purposes.
21. I have had regard to the authorities referred to by Prosecution including Police v Toa [2013] WSSC 71 (5 September 2013) where his Honour Sapolu CJ adopted a 12 month start point for sentence for intentional damage representing a risk to life. I have also considered the sentencing decision in Police v Vaioa Solia and Jerome Ah Fook [2015] WSSC 129 (26 January 2015) where two prisoners on a charge of willful damage having a maximum penalty of 7 years imprisonment damaged bars to their cell valued at $1,300.00 in an attempt to escape prison. The start point for sentence was 18 months imprisonment.
22. The authorities I have been referred to and referred to are however quite different to the offending in this case. This is the first case of its type to the Court’s knowledge where a car has been used as a weapon to break in to prison to free a prisoner. In doing so, it placed the life or lives of prison officers at risk and the damage to prison property was caused in the carrying out of a prison break. It is unique in its level of seriousness distinguished from the authorities to which I have been referred.
23. Having regard therefore to your offending as a whole, the seriousness of your offending and its circumstances together with the value of the goods damaged by you and the factors I have earlier outlined, I adopt a 4 year start point for sentence. I deduct 1 year for your guilty plea. Accordingly, you will be sentenced to 3 years imprisonment on the lead charge.

Result:

24. In respect of the charges before the Court therefore, you will accordingly be convicted and sentenced as follows, less time remanded in custody:
    • (vii) S1777/17 - Intentional damage risk to life – 3 years imprisonment;
    • (viii) S1771/17 – Intentional damage -1 year imprisonment to be served concurrently;
    • (ix) S1775/17 - Intentional damage – 9 months imprisonment to be served concurrently;
    • (x) S1779/17 – breaking prison – 1 year imprisonment to be served concurrently;
    • (xi) S1772/17 – dangerous driving - 3 months imprisonment to be served concurrently;
    • (xii) S1773/17, S1774/17, S1778/17 and S1780/17 – convicted and discharged.
25. Pursuant to section 33 of the Road Traffic Ordinance 1960, you are disqualified from holding a drivers licence for any class of vehicle for 4 years from today. Pursuant to section 33A, that disqualification shall thereafter continue until you have passed such prescribed tests for the grant of a driver’s licence that you may thereafter seek to obtain.

JUSTICE LEIATAUALESA DARYL CLARKE