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Police v Roache [2013] WSSC 39 (17 June 2013)

SUPREME COURT OF SAMOA

Police v Roache [2013] WSSC 39

Case name: Police v Leon Roache

Citation: [2013] WSSC 39

Decision date: 31 May 2013 with reasons

Conclusions delivered: 27 May 2013

Sentence date: 17 June 2013

Parties: Police v Leon Roache, male of Pesega

Hearing date(s): 27 May 2013

File number(s): S2043/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Chief Justice, Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
F E Niumata for prosecution
P T Masipa’u for accused

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S2043/12

BETWEEN

P O L I C E

Prosecution

A N D

LEON ROACHE male of Pesega

Accused

Counsel

F E Niumata for prosecution

P T Masipa’u for accused

Sentence: 17 June 2013

S E N T E N C E

The charges

1. The accused Leon Roache appears for sentence on one charge of robbery which carries a maximum penalty of 10 years imprisonment to which he had pleaded not guilty but was found guilty at trial. He also appears for sentence on one charge of assault with intent to rob arising from the same incident and which carries a maximum penalty of 5 years imprisonment. He pleaded guilty to this charge.

The offending

2. The complainant was walking home at Lotopa after work between 7:30pm and 8pm in the evening on 27 October 2012 when he was attacked by the accused and another boy whom the prosecution told the Court has not been charged because they have not been able to find him. The accused and this other boy had been drinking on the side of the road. When they came up to the complainant they punched him causing him to fall down. They then delivered several kicks to the complainant. As a result, the complainant sustained injuries to one of his eyes, his mouth and nose. He was bleeding from all three injuries. According to the complainant in his evidence, “Na pa lona isu”. He also sustained swelling and bruises to his face. He was taken by the police the same night to the hospital for treatment. A report from the doctor who treated the complainant was not available.
3. As it appears from the evidence, the accused took the complainant’s sunglasses but he said he lost it during the time of the assault on the complainant. Even that is so, he is still guilty of the robbery of the sunglasses. The accused also said in his evidence that it was the other boy who took the complainant’s cell phone when they searched the complainant’s pockets. The accused is also guilty of the robbery of the cell phone because this was a joint attack by both men for the purpose of robbing the complainant. So each of them would be criminally responsible for the acts of the other. It is no excuse for the accused to say that it was his co-assailant who took the cell phone.
4. It also appears from the evidence that when the complainant was assaulted, the coins worth $4 which were in one of his pockets scattered on the road. It is not clear whether any one picked up those coins. The accused said he did not pick up the coins. There is also no evidence that his co-assailant picked up the coins. Robbery is theft accompanied by violence or threats of violence. It is not clear whether there was any theft of the coins because it is doubtful whether any of the assailants took the coins. But “taking” is one of the essential elements of theft and theft is one of the essential elements of robbery. It follows that the alleged robbery of the $4 coins was not proved beyond reasonable doubt. But I was satisfied on the evidence that the accused had assaulted the complainant with the intent to rob the complainant of whatever item of property was found on him. One of the items of property listed in the charge of assault with intent to rob to which the accused had pleaded guilty is the coins.
5. Likewise, it is not clear from the evidence whether the accused or his co-assailant took the complainant’s half-full bottle of pepsi drink. It follows that the alleged robbery of the bottle of pepsi drink was not proved beyond reasonable doubt. But I am satisfied beyond reasonable doubt that the accused assaulted the complainant with intent to rob him of whatever item of property was in his possession. That included the complainant’s bottle of pepsi drink. One of the items of property listed in the charge of assault with intent to rob to which the accused had pleaded guilty is the bottle of pepsi drink.

The accused

6. As it appears from the pre-sentence report, the accused is a 22 year old male of Pesega. He has a married wife and they are expecting a baby. At the time of this offending, he was employed with a weekly income of $120. He also has a previous conviction for theft and burglary for which he was sentenced to 12 months probation with a special condition to perform 80 hours of community work.

The complainant

7. The complainant is 19 years old. He is single and employed. He had to be taken to the hospital for treatment of his injuries. It is however, not clear whether there is any enduring impact of his injuries on him.

Aggravating factors

8. This is a case of a joint and unprovoked assault on the complainant with intent to rob him. As a result, the complainant sustained injuries to one of his eyes, his mouth, his nose, and other parts of his face. This is also a severe and sustained assault; after the complainant was punched and fell to the ground, he was kicked several times. These are all aggravating factors relating to the offending.
9. The accused also has a previous conviction for theft and burglary which is similar to robbery which also includes theft as one of its essential elements. However, I have decided not to treat the accused’s single previous conviction as an aggravating factor relating to the offender for the purpose of increasing his sentence. The effect, however, of the previous conviction is that the accused would not receive any deduction to his sentence as a first offender.

Mitigating factors

10. There are no mitigating factors relating to the offending or the accused as offender. The accused, as it appears from the pre-sentence report, is still maintaining his innocence in spite of the evidence and his own cautioned statement placed by the prosecution before the Court. This makes it highly doubtful whether he is at all remorseful.
11. I have considered the good things said by the accused’s wife and brother about the accused to the probation service but I do not believe that the accused is truly remorseful or has changed for the better.

The decision

12. The sentencing memorandum provided by the prosecution refers to about eight recent cases of robbery and the sentences imposed in those cases. These sentences range from terms of probation to terms of imprisonment of up to 12 months. This reflects the basic truth that the sentence to be imposed depends in the ultimate analysis on the circumstances of each case. It is not clear from the prosecution’s sentencing memorandum whether the starting point approach applied to sentencing by this Court was applied in all the cases cited in the prosecution’s sentencing memorandum. I will again apply the starting point approach for sentencing in this case.
13. Having regard to the maximum penalty of 10 years imprisonment for robbery, the need for deterrence in this kind of case, and the aggravating factors relating to the offending, there being no mitigating factors relating to the offending, I will take 15 months as the starting point for sentence. This is a conservative starting point in order to avoid the appearance of a sudden change in the level of sentences in this kind of robbery case. But the level of sentence for this kind of robbery may go up significantly in the future particularly where ‘serious injuries’ are inflicted on the victim or where expensive items of property or large sums of money are stolen.
14. The starting point of 15 months reflects the extent of the criminality of this offending. It is the sentence I would impose unless there are aggravating factors relating to the accused as offender which would increase the starting point or mitigating factors relating to the accused as offender which would reduce the starting point. As there is none of any such factors in this case, the starting point of 15 months remains. The accused is therefore sentenced to 15 months imprisonment on the charge of robbery.
15. On the charge of assault with intent to robe which carries a maximum penalty of 5 years imprisonment, the accused is sentenced to 6 months imprisonment.
16. Both sentences are to be concurrent. This means the accused will serve a sentence of 15 months imprisonment. The time that the accused has been remanded in custody pending the outcome of this matter is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Vaai, Hoglund and Tamati Law Firm for accused