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Police v Talimalie [2022] WSSC 72 (2 December 2022)

IN THE SUPREME COURT OF SAMOA
Police v Talimalie & Anor [2022] WSSC 72 (02 December 2022)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IOPU TALIMALIE male of Laulii AND IAPESA ELISARA male of Fagaloa and Laulii.
Accused

Counsel: I Tanielu for Prosecution

F Lagaaia for the First Named Accused

C Vaai for the Second Named Accused

Sentence: 02 December 2022

S E N T E N C E

The charges

1. The accused appear for sentence on one joint charge of kidnapping, pursuant to sections 130 & 33 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. The pleaded guilty to the charge on 15 November 2022.

The offending

3. The Prosecution summary of facts accepted by the accused says that on 4 April 2018, the victim caught a taxi to Laulii. On arrival to inland Laulii the victim walked away without paying the taxi fare. The driver called out to a nearby house where the accused live, seeking their assistance to capture the victim. The accused and a relative chased after the victim, while the taxi followed, driving slowly to shine his car lights at the chase. The victim was captured somewhere in the bushes and the accused with one other carried the victim back to the taxi. The victim was placed in the boot upon instruction from the taxi driver. The accused and one other then got into the taxi and proceeded to take the victim to the Police Station. On the way to the main road they gave Tyson a lift. Tyson heard banging and movements from the boot which ceased by the time the taxi got to the main road. When they arrived at the Police Station in Apia they opened the boot and Police officers confirmed that the victim was deceased. The attending doctor declared the victim dead upon arrival at the hospital at 2000 hours on the same day. The cause of death in the pathologist’s report is blunt force head injury.

The First Named accused-Iopu Talimalie

4. As shown in the pre-sentence report, Iopu is 28 years old, he was 24 years old when this offending occurred. He is married with one child. He is employed at the China Harbour at Matautu.
5. He attended school until Year 11. He lived and worked in New Zealand from 2015 to 2017.
6. His father describes him as his right hand man in the family. He says his son avoids trouble and always invests his time towards family, youth and choir responsibilities.
7. His village Chief and village mayor write in support saying that they have observed positive changes in Iopu since the offending. He is now involved in church and youth activities. He is also described as humble and loving.
8. Iopu says of the offending that when he caught up the victim, they argued before a fist fight ensued. The victim’s hands were then tied with a shirt. The accused and one other held down the victim while waiting for the taxi. They put the victim into the boot because the taxi driver said he did not want his car to get dirty.
9. As a result of the offending, Iopu and his family were banished from Laulii. They were reinstated after paying a village penalty consisting of fine mats and money.
10. There was an ifoga conducted to the family of the deceased which was accepted by relatives and villagers of the deceased. The father of the deceased says that although accepted he will never forgive the accused for what they did to his son.
11. Iopu has no previous convictions.

The Second Named Accused-Iapesa Elisara

12. As shown in the pre-sentence report, Iapesa is 29 years old, he was 25 years old when this offending occurred. He is married with two children. He is employed by NCT Plumbing.
13. He attended the National University of Samoa in 2014.
14. His father describes him as humble, obedient and hardworking. He says this offending is out of character.
15. His Reverend says Iapesa is a regular member of and attendant of church and is active in church and village activities.
16. Iapesa says of the offending that when they caught the victim, they engaged in a fist fight, before the victim’s hands were tied with a shirt, he was held down by the accused and one other, and then carried into the taxi and put into the boot.
17. As a result of the offending, Iapesa and his family were banished from Laulii. They were reinstated after paying a village penalty consisting of fine mats and money.
18. There was an ifoga conducted to the family of the deceased which was accepted by relatives and villagers of the deceased. The father of the deceased says that although accepted he will never forgive the accused for what they did to his son.
19. Iapesa has no previous convictions.

Victim Impact Report

20. The deceased was 24 years old of Fusi Safata.
21. His father says that his son was his hope, his right hand and the whole family relied on him. He is still angry and hurt. His son looked after him and now he lives alone.
22. He said of the ifoga that it will not bring his son back. He misses him and cannot take him off his mind.

Aggravating features of the offending

23. Although not in the summary of facts, both accused told Probation that they were involved in a fist fight with the victim. It is aggravating that they ganged up on the victim.
24. This offending was cruel in that the accused put the victim into the boot of the taxi, a confined space for the duration of the trip from inland Laulii to Apia Police Station, a trip which would easily be longer than 30 minutes.
25. The impact of the offending on the victim is a significant aggravating feature of this offending. He died in the boot of the taxi, as it is accepted that there was banging and movement from the boot which ceased by the time the taxi reached the main road. He was dead on arrival at the Police Station. (per section 9(f) Sentencing Act 2016). There is no consequence more serious than the death of someone. The flow on effect is seen in the VIR provided by the father of the victim.
26. The injury sustained by the accused which caused his death is blunt force head injury. It is not known whether he sustained the injury from the fist fight with the accused or when he was put into the boot. The pathologist says that a relatively minor head injury if associated with airway obstruction may lead to lethal hypoxaemia, and further contribution from environmental suffocation (from being in the car boot) was impossible to exclude. In any event, the victim died in the boot of the taxi where he was put by the accused.

Mitigating Factors

27. The mitigating factors are as follows (same for both accused);
    • The ifoga;
    • Their Remorse;
    • Age of the accused, being 25 and 24 respectively;
    • The village penalty being banishment;
    • Their intention to assist the taxi driver to get his fare;
    • Previous good character; and
    • Guilty plea.

Discussion

28. Prosecution referred me to three sentencing authorities for the offence of kidnapping being Police v Sape [2015] WSSC 160; Police v Luamanu [2018] WSSC 120; and Police v Upuese [2019] WSSC 84.
29. There are few authorities in Samoa for this type of offending, and none similar to this case where someone died while being unlawfully detained and confined by another person.
30. The maximum penalty of 10 years imprisonment indicates that it is a serious offence.
31. Nelson J in Police v Sape started with 5 years imprisonment for tying up the complainant and putting him into his car which the accused then drove away. The complainant only managed to escape after the accused had an accident.
32. In Police v Luamanu, Clarke J adopted a starting point of 3 years imprisonment where the victim was physically assaulted and then kidnapped by placing him in the boot of his taxi. The accused then kept him confined in the boot of the taxi for a lengthy period of time, approximately 8 hours, as the accused drove around Apia drinking and driving as they went. He was threatened with violence when the demand was made about the whereabouts of his money and they used that money stolen from him.
33. Other authorities deal with the kidnapping of children (Police v Finau [2012] WSSC 95-6 years starting point) and girls for sexual purposes (Police v Timu [2006] WSSC 15-. 2 years imprisonment end sentence).
34. Prosecution recommends a starting point of 2 years imprisonment.
35. Counsel for Iopu submits that a non-custodial sentence is appropriate. He refers to section 30 of the Crimes Act 2013 which provides;

30. Arrest during flight - (1) A person is protected from criminal responsibility for arresting without warrant any other person whom the person believes, on reasonable grounds, to have committed an offence against this Act, and to be escaping from and to be freshly pursued by any one whom the person believes, on reasonable grounds, to have lawful authority to arrest that other person for the offence. (2) This section applies whether or not the offence has in fact been committed, and whether or not the arrested person committed it.

36. Counsel submits that Iopu tried to capture and arrest the victim who was running away from the crime scene, and submits that section 30 provides an exemption from liability when arresting a person escaping from a crime as long as it is reasonable and non-violent.
37. With respect, there are several requirements that should be met to satisfy section 30 to be protected from criminal responsibility. There is no question that the accused believed on reasonable grounds that the victim was running away from paying his taxi fare. However, the victim was not escaping from nor was he being freshly pursued by someone who had lawful authority to arrest the victim, e.g a police officer. This section does not therefore apply to exempt either of the accused from criminal responsibility.
38. Counsel for Iapesa submits a non-custodial sentence is appropriate.
39. This is a classic case of what is loosely referred to as a citizen’s arrest. However, there are limits to this and these limits and safeguards are found in Part 4 of the Crimes Act 2013. This Part predominantly provides protection to a member of the public who is assisting police officers. It should not and does not mean that members of the public should take the law into their own hands and act as Police officers. This can result in tragic consequences like what happened to the victim in this case. The safest course of action in this case would have been to contact the Police. This sentence critically serves a deterrent purpose, i.e. in deterring others from committing the same actions.
40. Other sentencing decisions for the offence of kidnapping are helpful. The distinguishing factor in this case is the impact of the offending on the victim in that he died. Although the accused are not charged with having caused the death of the victim, it does not change the fact that the victim died whilst in the boot of the taxi where he had been placed by the accused. The impact of their offending, in that someone died, although an unintentional consequence is unfortunately still a consequence of this offending which I consider as highly aggravating. The accused must be held accountable for the harm done to the victim.
41. I consider the culpability of both accused to be the same.
42. Having regard to the aggravating features relating to this offending, I take a higher starting point than in Police v Sape (5 years imprisonment) and adopt a starting point of 6 years imprisonment. I deduct 12 months for the ifoga, 6 months for their remorse which I accept is genuine, 6 months for their age, 12 months for the village penalty, the highest that can be imposed by a village Council, 10 months for their previous good character, 4 months for their intention to assist, and for their guilty plea 8 months.

The result

43. The accused are convicted of kidnapping and sentenced to 14 months imprisonment.
44. Any time spent in custody is to be deducted.

JUSTICE TUALA-WARREN