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Police v Pesaleli [2008] WSSC 12 (17 March 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

UOKA PESALELI
male of Fasitoo-uta.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Sua-Mailo for prosecution
Accused in person

Sentence: 17 March 2008

SENTENCE

The charge

[1] The accused appears for sentence on one charge of robbery which carries a maximum penalty of 10 years imprisonment. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

[2] According to the summary of facts which was confirmed by the accused, on Thursday morning 28 June 2007, the accused, whilst collecting coconuts with other prisoners at Tafaigata prison, escaped taking the road at the back of the prison to Aleisa.

[3] At around 2pm, the accused reached the victim’s house and waited until the victim’s father left before he entered the house. The victim was alone in her bedroom at that time. The accused entered the bedroom with a machete which he put to the victim’s throat. He then grabbed the victim’s left hand and pulled her out of the bedroom.

[4] As they leaving the house, the victim grabbed a machete hoisted on the backdoor and struggled with the accused over it. During the struggle, the victim’s left fingers were injured before she fell back on the ground.

[5] The victim then called out for help but the accused told her not to scream because he just wants money. The victim replied there was no money inside the house but the accused held the machete towards her neck.

[6] The accused then pulled the victim’s to her bedroom, shoved her into her bedroom, grabbed her purse, and ran off. It is not clear whether there was any money in the purse.

The accused

[7] The accused is a 26 year old male from the village of Fasitoo-uta. His parents separated when he was five years old. His father then started a new relationship with another woman. The accused grew up under the care of his father and stepmother. When the accused found out about his natural mother, he often ran away and lived with her.

[8] The accused left school at Year 10. He has never had any formal employment but stayed at home and helped his father with their plantation.

[9] At the time of the present offence, the accused was serving a concurrent sentence of 3 years imprisonment imposed by the District Court on 30 November 2005 for the crimes of burglary and theft.

The victim

[10] The victim is now a 20 year old female but was 19 years at the time of this offence.

[11] According to the victim impact report, the victim suffered the following physical injuries from the commission of the present offence:

(a) bruises and cuts on her knees and shins caused by the accused pushing her down on the concrete;
(b) an inch long cut on her ring finger which bled profusely; and
(c) the scratches on the victim’s knees and shins have left scars but it is not clear whether these would be permanent or temporary.

[12] The victim impact report also shows that the victim has been affected psychologically by this offence in the following ways:

(a) the victim a the time of the offence was almost fully recovered from a nervous breakdown for which she had been admitted in a psychiatric hospital in New Zealand and this offence has taken her several steps back in the recovery process;
(b) the victim has developed anxiety problems and cannot stay by herself anymore;
(c) the slightest noise now makes the victim very scared and usually makes her scream;
(d) since this offence the victim has developed OCD, obsessive compulsive disorder;
(e) the victim does not feel safe in her own home anymore and whenever her father is not with her at home, she would always check all the doors of her home so many times/repeatedly due to her fear that someone might attack her again; and
(f) the victim now does not only fear for herself, but also for the safety of her father at home.

[13] Other psychological effects of this incident upon the victim are set out in the victim impact report. It is clear that the victim who had almost fully recovered from a nervous breakdown for which she had been admitted in a psychiatric hospital in New Zealand, has been seriously affected by this incident.

Aggravating features

[14] There are several aggravating features in this case. These are:

(a) the use of force, violence and threats of violence upon the victim;
(b) the accused was armed and he used the machete he had with him to threaten and intimidate the victim;
(c) the element of home invasion involved;
(d) the physical and psychological impact of the offending upon the victim;
(e) the accused is older than the victim who is a female by about seven years;
(f) the present offending also bears similarities to the crimes of burglary and theft for which the accused was serving a term of imprisonment at the time of offence; and
(g) the accused had escaped from prison and committed this offence.

Mitigating features

[15] The only mitigating feature in this case is the accused’s plea of guilty to the charge at the earliest opportunity.

[16] Even though the accused told the probation service, as it appears from the pre-sentence report, that he had apologised to the victim, the probation service was not able to obtain confirmation from the victim of such an apology. There is also no mention of it in the victim impact report.

Sentence in comparable cases

[17] In previous cases of robbery which involved invasion of the victim’s home, this Court has always impeded custodial sentences. For instance:

(a) in Police v Kennach and Ng Lam [2006] WSSC 62, both accused were each sentenced to 2½ years imprisonment for the robbery of a 62 year old male in his home;
(b) in Police v Roache [2007] WSSC 22, the accused, who was a co-offender with Kennach and Ng Lam in (a), was sentenced to 3 years and 10 months imprisonment as he played the leading role in the offending; and
(c) in Police v Saveaalii [2008] WSSC 7, the accused was sentenced to 2½ years imprisonment for the robbery of an elderly man in his home.

[18] I have cited these robbery cases which involved home invasion, because in the circumstances of those cases, the element of home invasion was treated as an aggravating feature of the offending. Every person is supposed to feel safe and secure in his or her own home. This type of offending very often takes away from a person his or her sense of safety and security in his or her own home.

The decision

[19] In passing sentence in this case, deterrence and the protection of the community are the primary considerations. Given the age and previous convictions of the accused, rehabilitation is not a relevant consideration.

[20] Having regard to the aggravating features of the offending, as there are no mitigating features relating thereto, I will take 4½ years as the starting point for sentence. I will deduct 1/3 for the accused’s plea of guilty and that leaves 3 years. Having regard to the accused’s personal circumstances, I have decided not to add on anything for the accused’s previous convictions entered in 2005 for which he was serving a concurrent term of imprisonment at the time of this offence. The reason is that I propose to make the sentence in this case start at the end of that term of imprisonment. Thus to avoid sentencing the accused twice on his convictions in 2005, I will not increase the sentence in this case because of those convictions. The only thing that will happen is that the accused, not being a first offender, will not receive any credit on that basis.

[21] The accused is therefore sentenced to 3 years imprisonment. That sentence is to be concurrent with the sentence of 6 months imprisonment imposed in the District Court on 14 August 2007 for burglary and theft. However, the present sentence of 3 years is to start at the expiry of the concurrent sentence of imprisonment imposed in the District Court on 30 November 2005.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution