Police v Finau [2016] WSDC 33 (19 August 2016)

DISTRICT COURT OF SAMOA
Police v Finau [2016] WSDC 33

Case name:	Police v Finau
Citation:	[2016] WSDC 33
Sentencing:	19 August 2016
Parties:	POLICE v ALENI FINAU, male of Moata’a.
Hearing date(s):	12 August 2016
File number(s):	D1447/16, D1560/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- For the charge of deception you are convicted and sentenced to 9 months imprisonment less time served since you have been in custody. On your release from prison, you are to be under the supervision of the Probation Service for 12 months with the special conditions that: (a) you are to attend the Tomanatu Program; and (b) undergo spiritual counseling as directed by the Probation Service. For the charge of taking vehicle without owner’s authority, you are convicted and discharged.
Representation:	I. Atoa for National Prosecution Office Defendant in person
Catchwords:	Causing loss by deception – obtain by deception – aggravating features – mitigating features -
Words and phrases:
Legislation cited:	Criminal Act 2013 s.172 (1) & s.173 (a) & (c)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ALENI FINAU, male of Moata’a.
Defendant

Counsel:
I Atoa for National Prosecution Office
Defendant in person

Decision : 19 August 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Aleni Finau, you appear for sentencing on the following charges:
   • (a) That on or between the 31^st March 2016 to the 15^th April 2016, you obtained a Toyota Camry Station Wagon T 1300 by deception. This offence carries a maximum penalty of 7 years imprisonment;
   • (b) That on or between the 31^st March 2016 and 15^th April 2016, you took the Toyota Camry Station Wagon T 1300 without the owner’s consent. This offence carries a maximum penalty of $200 fine.
2. You originally pleaded not guilty to the charges on 7 June 2016. On the hearing date on the 27^th July 2016, you vacated your pleas of not guilty and leave was granted to enter pleas of guilty to both charges.

The Offending

3. According to the Summary of Facts accepted by you, the victim had advertised his car for sale for $5,000.00. On Thursday 31^st March this year, you met with the victim and expressed your interest in buying the car. You told the victim that your name is Ah Ki. You asked to test drive the vehicle so the victim gave you the car to test drive. It was agreed that you would take the car and return on Saturday with the $5,000.00.
   
4. On Saturday morning, you went to the victim’s house and promised the victim that you would give him the money on Monday and for the victim to meet with you on the Monday at the NPF. You however had lied to the victim, took his car and then proceeded to sell it to a third party. The car was later returned to the victim by Police.

The Accused

5. According to the Summary of Facts, you are a 22 year old male of Moata’a. You are single and are currently unemployed.

The Victim

6. The victim in this matter is a 45 year old male of Tanumapua and Fagamalo. He is married and is also unemployed.

Aggravating features of Offending

7. The aggravating features of your offending are (a) the gross breach of trust; (b) the vulnerability of the victim; (c) the highly premeditated nature of your offending. You had carefully thought your offending out before you carried out your plan as demonstrated by your use of a false name. Your scheme was an ongoing lie from start to finish; (d) your level of deception was significant, not only against the victim but the third party with whom you later sold the car; and (e) the value of the car.

The mitigating features of your offending

8. There are no mitigating features to your offending.

The aggravating factor relating to you as an Offender:

9. You are a recidivist offender having committed numerous similar as well as violent offending since 2012. Your prior conviction record agreed to by you include the following convictions and sentence:

September 2012 - Kidnapping – for which you were convicted and sentenced to 2 years imprisonment;

October 2012 - Assault (4 counts), False pretence (6 counts), burglary, threatening words, unlawful conversion (3 counts) – for which you were convicted and sentenced to 2 years and 2 months imprisonment to be served cumulative;

April 2013 – 2 counts of escape for which you were sentenced to 2 months each, cumulative;

8 June 2015 - Possession of ammunition and unlicensed firearm – 12 months ‘suspended sentence’; and

7 September 2015 - Obtain by Deception whereby you were convicted and sentenced to 2 months imprisonment followed by 12 months supervision, to attend the Tomanatu program and serve 40 hours community work.

10. When you committed this offending, you were under the supervision of the Probation Service. This offending occurred only 6 months after you were sentenced for the same offence of obtaining by deception in September 2015 and for which you were under supervision when this offending occurred.

The mitigating factors relating to you as an Offender:

11. The only credit that you receive will be your guilty plea. This however was only on the date of hearing. You wasted Police and Prosecution resources in arranging and calling witnesses; the time of witnesses to attend the hearing date; and the Prosecution’s preparation for your hearing. You nevertheless will receive some credit for your guilty plea though that will be more limited than you would otherwise have received had you pleaded guilty at an early stage.
12. You expressed to the Court your remorse and told me that you would not come back to the Court. I do not accept that you are genuinely remorseful. That you are remorseful is more than empty words said for my benefit in reduction of sentence. You may be remorseful but that arises in my judgment from the predicament of your arrest, being held in custody and you facing a further imprisonment term. Your contrition must be genuine and I do not find your contrition genuine. I have no doubt that in your many appearances before our Courts, you have said the same to my other brother and sister Judges.

Discussion

13. In September last year, for similar offending of obtaining by deception, the Supreme Court imposed upon you a sentence that sought to punish you for your actions by imprisoning you for two months. The Supreme Court however also sought to balance and address the cause of your offending by sending you to the Tomanatu Program administered by the Probation Service for your rehabilitation. To assist with your rehabilitation and monitor you, you were also placed under the supervision of the Probation Service for 12 months.
14. Only 6 months into the 12 month supervision period, you have committed this further offending. You have soundly rejected the efforts of the Supreme Court last year to address your rehabilitation to make you a useful and productive member of our community. You are by your actions dishonest and untrustworthy. Your continued offending is a risk to the community. Until you genuinely commit yourself to your rehabilitation for your own good, you will condemn yourself to a wasted life of imprisonment.
15. In sentencing you, the relevant principles for sentencing are to hold you accountable for the harm that you have caused; to promote and instill in you a sense of responsibility for that harm; to provide for the interests of the victim of your offending; to denounce your conduct; protect the community from this type of offending; and to rehabilitate you.
16. Given the seriousness of your offending, your prior convictions and the risk you represent to the community for further offending, imprisonment is warranted. I will however seek to balance this sentence with further rehabilitation at the end of your sentence with a view hopefully that during your imprisonment term, you will genuinely commit yourself to rehabilitation because if you do not, imprisonment will become a regular part of your life. That as I have said would be a waste of your life.
17. In this matter for the charge of obtaining by deception, I will commence with a starting point of 8 months imprisonment having regard to the facts of this case. I will add 2 months for the previous convictions and the fact that this offending occurred whilst you were under supervision. I will deduct 1 month for your early guilty plea. That leaves an imprisonment term of 9 months.

The penalty

18. Aleni Finau, for the charge of deception you are convicted and sentenced to 9 months imprisonment less time served since you have been in custody. On your release from prison, you are to be under the supervision of the Probation Service for 12 months with the special conditions that:
    • (c) you are to attend the Tomanatu Program; and
    • (d) undergo spiritual counseling as directed by the Probation Service.
19. For the charge of taking vehicle without owner’s authority, you are convicted and discharged.
    

JUDGE LEIATAUALESA D.M. CLARKE