SUPREME COURT OF SAMOA
Police v Savali and Silva [2013] WSSC 37

Case name: Police v Savali and Silver
Citation: [2013] WSSC 37
Decision date: 14 June 2013
Parties: POLICE and MICHAEL SAVALI male of Vaimoso and Faleula and SONNY SILVA male of Vaimoso
Hearing date(s): 12, 13, 14, 15 March 2013
File number(s): S1657/12
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order: (Sentence)
Representation: 
Leinafo Taimalelagi and Phaedra Valoia for the prosecution
Ameperosa Roma for 2nd defendant
Semi Leung Wai for 3rd defendant
Catchwords: 
Words and phrases:
Legislation cited:
Young Offenders Act 2007
Criminal Procedure Act 1972
New Zealand Criminal Justice Act 1954
Cases cited:
Police v Papalii 2011 WSSC 132 (25/11/2011)
R v Hughes 2000 NZCA 544
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MICHAEL SAVALI, male of Vaimoso and Faleula
Second Defendant

SONNY SILVA, male of Vaimoso
Third Defendant

Counsel:	
Leinafo Taimalelagi and Phaedra Valoia for the prosecution
Ameperosa Roma for 2nd defendant
Semi Leung Wai for 3rd defendant
	
Sentence:	14 June 2013

S  E  N  T  E  N  C  E 
1.	The two defendants were at the conclusion of a defended hearing convicted of the charge of robbery and acquitted of the rape charge.  Their co-accused and ringleader, pleaded guilty to both charges and testified against the two defendants.
2.	I have dealt with the factual background of the offending in my ruling concerning the principal offender Nepata Manuleleua.  All three defendants were in the apartment where the complainant was physically and sexually abused.  Their violation of the complainant came to a halt when the complaint’s companion, Pauline entered the apartment.
3.	The defendant Michael Savali is 23 years old; at the time of the offending he was 22 years.  He is the eldest of 4 children and is unemployed.  According to the probation service Michael stays home and do the washing and cleaning for his grandfather whom he depends for financial support.  Michael’s father died in 2011.
4.	The court accepts that when the principal offender Nepata commenced to abuse the complainant, Michael left the apartment and went outside.  This is confirmed by the testimony of the complainant.  But he did return to the apartment and he was inside when Pauline, the complainant’s companion, entered.
5.	Michael told the probation service he removed the gold chain from the apartment.  He is a first offender.
6.	The defendant Sonny Silva was 16 and a student at the time of the offence.  He is still a student.  Pursuant to the provisions of the Young Offenders Act 2007, Sonny is a young person.  He is also a first offender.  
7.	At the time of the offence Sonny was living with his paternal grandfather at Vaimoso since he was 8 years old.  His father moved to Australia and his mother to Siusega when they separated.
8.	He told the probation service he removed 1 can of 12oz corned beef from the apartment.
9.	Both Michael and Sonny also received $50 from the principal offender after they left the apartment.
10.	The circumstances which lead to the offending, the circumstances surrounding the offending and the ages of these two defendants in my view justify a disparity in sentences to be imposed but in doing so the seriousness of the offence cannot be ignored.
11.	The court must try and set some sense of accountability in both defendants for the harm they have done, not just for the complainant but to her family, the families of the defendants and 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.
12.	The court accepts that both of them went to the complainant’s apartment at the instigation of Nepata.  They went to look for Pauline.  They had no idea who Pauline was and who lived in the apartment.  Similarly neither of them had a criminal intent when they entered the apartment, that is they did not go to the apartment to do a criminal act.
Prosecution’s Submissions
13.	The prosecution suggests a starting point of 9 years imprisonment for both defendants should be adopted by the court on the basis that the two defendants and Nepata were directly involved in the abuse and torture of the complainant and aided and abetted one another in the physical and sexual abuse.  It is submitted that this was a serious incident of home invasion resulting in a brutal gang attack and involving violence, torture and rape.
14.	In my respectful view, the prosecution’s submission signals and unwillingness on its part to accept the verdict of the assessors that the two defendants were not party to or aided and abetted each other or Nepata in the rape.  Both the prosecution and the court are bound by the verdict of the assessors.  To adopt a starting point of 9 years imprisonment for an offence punishable by a maximum penalty of 10 years is in my view unreasonably excessive given the circumstances of the offending.   
Defendant Michael
15.	Counsel for Michael has urged the court to impose a non custodial sentence to enable Michael to remain in the community and mend his ways.
16.	The testimonials by his parish priest and village mayor speak of his commitment to the church youth group and village activities and described his offending as out of character. 
17.	The probation service is of the view that Michael is suitable for supervision by the service if given a community based sentence.
18.	Given his role in the offending, impeccable good record, his age, his obvious remorse and other matters raised in the probation report as well as the testimonials, Michael is convicted and placed on probation for 2 years on condition he will perform 80 hours community service and will attend any programme ordered by the service.
Defendant Sonny
19.	Counsel for Sonny submitted that the court should exercise its discretion under section 104 Criminal Procedure Act 1972 and discharge the defendant without conviction.
20.	In support of the submission counsel says:
(a)	the defendant’s offending is on the lower and of the scale, 
(b)	the defendant is a young person and a student and can contribute productively and usefully if allowed to continue with his education.  A letter from his school is attached.
(c)	the defendant’s father came to Samoa for the trial and wants to take the defendant to Australia to and attain his potential continue his educational pursuits.  A conviction against his name may hinder the defendant’s chance to obtain a visa to enter Australia.
21.	 Section 104 in so far as relevant provides:
(1)	If after inquiry into the circumstances of the case, any court …. is of the opinion that, although the charge is proved:
(a)	the offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment, or
(b)	having regard to the age or other special circumstance of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed, it may discharge that person without convicting him unless a minimum penalty is expressly provided for the offence by any enactment.
22.	In Police v Papalii 2011 WSSC 132 (25/11/2011) Sapolu CJ referred to and considered the approach of the New Zealand Courts to a similar provision in the New Zealand Criminal Justice Act 1954, and adopted the three step approach identified by the New Zealand Court of Appeal in R v Hughes 2000 NZCA 544 as applicable to our section 104 Criminal Justice Act namely:
(a)	the court must first consider the gravity of the offending, 
(b)	secondly, the consequences of conviction; and 
(c)	finally whether these consequences are out of all proportion to the gravity of the offending identified as step one. 
23.	The involvement of the defendant Sonny in the offending has already been referred.  He was intoxicated and in the company of older intoxicated accomplices, one of whom had a previous conviction for offence involving violence.  He went looking for things to take when he was told to do by the principal offender.
24.	He was 8 years old when the parents separated and since then has been taken care of by the paternal grandfather.  Without doubt he has a promising sporting and academic potential.  His school principal referred to him as a very enthusiastic young man with great talents having represented his college in athletics and the under 16 rugby team.  Academically he is an average student with a willingness to study.
25.	Counsel has emphasised the best interest of the defendant will be attained if the defendant shall re-unite with the father in Australia.  The father has obviously been assisting financially with his maintenance and educational needs.  Counsel has also referred to the Young Offenders Act and the Convention on the Rights of the Child which Samoa has ratified.
26.	I accept the defendant has totally regretted his involvement in the offence and has realised the undesirable consequences of his actions.  Consequences of a conviction will be out of proportion to the gravity of his offending.
27.	He is discharged without conviction.

JUSTICE VAAI