Police v Kalapu [2016] WSDC 13 (7 April 2016)

DISTRICT COURT OF SAMOA
Police v Kalapu [2016] WSDC 13

Case name:	Police v Kalapu
Citation:	[2016] WSDC 13
Sentence date:	7 April 2016
Parties:	POLICE v AFA KALAPU male of Matautu tai
Hearing date(s):
File number(s):	D702/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	- Convicted and sentenced to 6 months imprisonment less time served since you have been in custody.
Representation:	I Atoa for NPO Defendant in person
Catchwords:
Words and phrases:
Legislation cited:	Criminal Act 2013 s.161 & 165©
Cases cited:	Police v Puni [2014] WSSC 57 Police v Lelei [2016] WSSC 17 Police v Lefaiaao [2015] WSSC 22
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

AFA KALAPU male of Matautu tai
Defendant

Counsel:
I Atoa for National Prosecution Office
Defendant in person

Sentence: 7 April 2016

DECISION OF DCJ CLARKE

1. Afa Kalapu, you appear for sentencing on one count of theft in breach of section 161 and 165(c) of the Crimes Act 2013.
2. You pleaded guilty to the charge on the 15^th of March 2016. The maximum penalty on conviction for theft for which you have been convicted is 2 years imprisonment.

The Offending

3. On 31 March 2016, you confirmed the Summary of Facts as read to you. According to the Summary of Facts, on the night of the 12^th February 2016 at around 7pm, the victim and her cousin were clubbing at the Club X at Matautu-tai. The victim met you at that night club, you danced and afterwards, she had a drink with you in the outside area of the night club. After a while, she went with you outside of the night club area and had sex with you. After you had sex with the victim, she put her clothes on. You then stole her black Samsung telephone valued at NZD$300 (SAT$537). She told you that the phone was hers and you said no and ran off with the phone. You told the Court that you subsequently returned the stolen property.

The Accused

4. According to the Summary of Facts, you are a 21 year old male of Matautu-tai. You are single and employed at Aggie Greys Vaisigano. You told the Court you are not married and have no children.
5. You confirmed your previous conviction record provided to the Court which included three (3) convictions for theft on 29/03/2010 (suspended sentence 2 years plus 80 hours community work), 19/01/2011 (sentenced to probation for 12 months) and 01/04/2011 (convicted and sentenced to 6 months imprisonment). You were also convicted of willful damage on 18 April 2012 for which you were convicted and sentenced to 2 years imprisonment and burglary on 19 January 2011.
6. At your sentencing hearing, the Probation Service informed the Court verbally that you had also been convicted for theft on 7 September 2015 and sentenced to 15 months supervision on the condition that you carry out 100 hours community work, obey a curfew from 7pm to 7am Friday and Saturday nights and that you not consume alcohol. When you committed the offending, you were under the supervision of the probation service.

The Victim

7. The victim is a 29 year old female from Samoa and also New Zealand. She is married with one child.

Aggravating features of Offending

8. The aggravating features of your offending are that the victim was in a vulnerable position and she had placed trust in you. She went with you to a private location and after you had sex with her, you stole her property valued at SAT$537.00.

The mitigating features of your offending

9. The only mitigating feature in your offending is that you apparently returned the phone. This however is of some though not significant weight as the return of the phone occurred after the matter was referred to Police. You will nevertheless receive some credit for this.

The aggravating factor relating to you as an Offender:

10. You are a recidivist offender having committed numerous similar offences over the past five (5) plus years. You have been convicted of theft four times previously. This conviction is your fifth conviction for theft. Most recently, you were convicted for theft on 7 September 2015 and sentenced to 15 months supervision. Your further offending for theft on this occasion occurred whilst you were under your 15 months supervision period. These factors are all aggravating factors.
11. In addition, a condition of your sentence of supervision imposed on 7 September 2015 as advised by the Probation Service and confirmed by you was that you do not consume alcohol. You told the Court in sentencing that you had consumed alcohol and were intoxicated at the time of your offending. You have failed to take the opportunity extended to you by the Court in its leniency in September of last year to learn from that experience and mend your ways.

The mitigating factors relating to you as an Offender:

12. Firstly, I take into account that you entered a guilty plea at the earliest opportunity.
13. Secondly, you expressed your remorse to the Court and said that you had changed your ways. Whilst I accept that you might have some remorse, this most likely extends from being caught and brought before the Court. I do not accept that you have changed your ways since 12^th February this year and those are hollow words. You nevertheless will receive some benefit for the remorse expressed, in part, supported by your guilty plea.
14. Thirdly, you will also receive some credit for returning the stolen property, however, as that appears to have been after Police involvement and prompted by Police, the benefit you will receive will also be minimal.

Discussion

15. The relevant principles for sentencing are to hold you accountable for the harm that you have caused the victim; to promote and instill in you a sense of responsibility for that harm; to provide for the interests of the victim of your offending; and to denounce your conduct and protect the community from this type of offending.
16. Your offending took place whilst you were under supervision of the Probation Service for a similar offence you were convicted for in September 2015. Whilst under supervision and when you committed your offending, you also breached a condition of your sentence not to consume alcohol. There is no question that a custodial sentence is warranted. You do not comply with sentences of supervision and such a sentence is therefore not appropriate. A custodial sentence is warranted and the only question is how long you should be imprisoned for.
17. Prosecution have applied for a sentencing starting point of 9 months. I have had regard to the cases referred to by Prosecution in the Sentencing Memorandum.
18. A review of sentences for theft is that there are a wide range of sentences imposed by the Courts of Samoa. As stated by the Honourable Chief Justice in Police v Puni [2014] WSSC 57 (16 October 2014) in terms of sentencing
    • (a) “Whilst previous sentences in comparable cases are a relevant consideration for sentencing purposes, it is a cardinal principle of criminal sentencing that the senten each case depends prds primarily on the facts of that case.”
19. The application of thdinal rule in sentencing ging gives rise to a wide range of sentences in cases involving similar offending. In Police v Lelei [2016] WSSC 17 (20 January 2016) a decision of Her Honour Tuatagaloa J, the defendant had prior convictions for similar offending and also did not appear for sentencing resulting in sentencing being delayed for over 12 months. An aggravating factor accepted by the Court was that the stealing involved theft of the victim’s hand bag cash and also $560 from the victim’s bank account by the use of the victim’s key card. The sentencing start point was 12 months.
    
20. In Police v Lefaiaao [2015] WSSC 22 (20 March 2015), a decision of His Honour Chief Justice Sapolu for sentencing for theft under sections 161 and 165(b) of the Crimes Act 2013 with a maximum imprisonment term of 7 years, the sentencing start point was 10 months for the theft of a cigweld welder valued at $2,800.00 before aggravating and mitigating factors were applied and deducted.
    
21. In this matter, I will commence with a starting point of 6 months imprisonment having regard to the facts of this case. I will add 4 months for the previous convictions and the fact that this offending occurred whilst you were under supervision and breached the terms of your supervision including your consumption of alcohol. I will deduct 1 month for your remorse and the return of the stolen property and 1/3 off the balance for your early guilty plea.

The penalty

22. Afa Kalapu, you are convicted and sentenced to 6 months imprisonment less time served since you have been in custody.

JUDGE D M CLARKE