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Police v Tiatia [2020] WSSC 65 (6 August 2020)

SUPREME COURT OF SAMOA
Police v Tiatia [2020] WSSC 65

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MICAHEL TIATIA male of Sinamoga.
Accused

Counsel: A Matalasi for Prosecution

L Taimalelagi for the Accused

Decision: 6 August 2020

RULING ON BAIL APPLICATION

1. The accused applies for bail pending sentence pursuant to s.103 of the Criminal Procedure Act 2016. The application for bail is opposed by Prosecution on the grounds that: he has re-offended whilst on bail and may offend if granted bail.

Background:

2. The accused is a 19-year-old young man. Presently, he has a number of matters before the Supreme Court pending sentence. The accused appeared before the Supreme Court in November 2019 on two charges of theft and two charges of burglary from incidences in early November 2019. When he appeared in the Supreme Court on the 25th November, he was granted bail for these matters.
3. On the grant of bail on strict conditions, the accused re-offended committing a further 6 burglaries and thefts in January 2020, principally against the same victim.
4. Following that further offending, the accused was remanded in custody. However, due to the COVID-19 State of Emergency, the accused was then released on bail by the Registrar. After his release, the accused again committed a further burglary and theft on the 14th May 2020. The total value of goods stolen by the accused for the various matters he has before the Court pending sentence is in the vicinity of ST$17,850.00.
5. By letter dated 26 June 2020, Seiuliali’i Dr George Tuitama confirmed that the accused suffers from an intellectual disability with a GAF rating of at most, 50 which involves serious symptoms or serious impairment.
6. Through counsel for the accused, bail is sought. It is proposed that the accused can reside at Safotu with his aunt who he is close to and where he previously resided without any incident. Through his mother, the accused’s learning difficulties are well set out. He has also completed a program at the SVSG and was given an opportunity to work at the SVSG stall.

Relevant Law:

7. Section 103 of the Criminal Procedure Act 2016 provides:
   • “103. Bail pending sentence - (1) If a defendant is found guilty or if a defendant pleads guilty, the Court may not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2) The onus is on the defendant to show cause why bail should be granted.

(3) When considering the interests of justice under subsection (1), the Court may, instead of the considerations in section 99, take into account the following considerations:

(a) whether the defendant is likely to receive a sentence of imprisonment;

(b) the likely length of time that will pass before the defendant is sentenced;

(c) any other consideration that the Court considers relevant.

(4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.”

8. Section 103 is identical to section 13 of the Bail Act 2011 (New Zealand). Section 103 reverses the onus on to the accused to establish on the balance of probabilities that it would be in the interests of justice for the grant of bail. Where the accused is unlikely to receive a sentence of imprisonment, that must weigh against the Defendant being remanded in custody.
9. In R v Leone [2009] NZCA 325, the New Zealand Court of Appeal considered bail pending sentence and section 13(3)(a) and (4) of the New Zealand Bail Act 2011 identical to section 103(3)(a) and 103(4) of the CPA. The New Zealand Court of Appeal stated:

“[7] More relevantly for present purposes, the likelihood or otherwise of imprisonment being imposed is referred to in both s 13(3)(a) and (4). We are of the opinion that when trial judges consider bail following conviction, they should address the likelihood of imprisonment as relevant in the following respects:

(a) If imprisonment is not a real or substantial possibility, s 13(4) will apply (and bail would ordinarily be granted).

(b) Under s 13(3)(a) the judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed. The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.”

Discussion:

10. Given the background of the matters before me and the accepted conduct of the accused, the accused has a history of offending on bail and in my assessment, is a high risk of re-offending if again granted bail. On every occasion since he was first granted bail in November last year, the accused has regrettably re-offended on every occasion. After his grant of bail in November, he committed six (6) further burglaries, ostensibly against the same victim. After being remanded in custody and then bailed again due to the SOE, he again re-offended. His remands in custody have had little deterrent effect on the accused. The accused has also failed to appear on two occasions with Warrants of Arrest issued on the 2nd December 2019 and 20th January 2020.
11. Given also the number of burglaries and thefts committed by the accused as well as the total value of the goods stolen by him, imprisonment for the accused is presently a real and likely possibility. In those circumstances and given also that the sentencing of the accused is scheduled for Friday 14th August and likely to be finalized within the next few weeks, I am not satisfied that the interests of justice have been established such as to grant the accused bail.
12. While I have determined today that bail is to be denied pending sentence, the material before me shows that the accused has a serious mental impairment. This is reflected in the Report by Dr Tuitama as well as the affidavit from his mother. While ordinarily, the accused would likely be imprisoned for his acts, as I have said before to counsel given the accused mental impairment, consideration should also be given to sentencing alternatives to imprisonment. In this context, this may be to focus on his rehabilitation and reintegration (s. 5(1)(g), Sentencing Act 2016) and/or because of his intellectual capacity (S7(2)(d), Sentencing Act 2016), such a sentence of imprisonment which would ordinarily be imposed, in his particular case, would be disproportionately severe (s. 6(h), Sentencing Act 2016). In order to consider alternatives to imprisonment, counsel may need to furnish medical and other reports addressing these issues.

Result:

13. Bail is denied for the reasons given. The accused is remanded in custody to Friday 14 August at 12.30pm for sentencing.

JUSTICE CLARKE