Police v Bourne [2016] WSDC 39 (27 September 2016)

DISTRICT COURT OF SAMOA
Police v Bourne [2016] WSDC 39

Case name:	Police v Bourne
Citation:	[2016] WSDC 39
Decision date:	27 September 2016
Parties:	POLICE v STEVEN BOURNE male of Tanugamanono and Lalovaea
Hearing date(s):
File number(s):	D2561/15, D2562/15
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	Judge Fepuleai A Roma
On appeal from:
Order:	- Convicted and sentenced to 4 weeks imprisonment to be followed by 6 months supervision with a condition that you complete 60 hours of community work.
Representation:	I. Atoa for Prosecution Tuisa T. Patea for Defendant
Catchwords:	Theft – obtain by deception - mitigating factor – aggravating factor –starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s161, 165(c), 172(1)(a)(d), 173(b), Community Justice Act 2008,
Cases cited:	Police v Tauivalea Peleti (4 Novema 2013 Police v. Sale Maeloi (16 April 2014) Police v. Alisa Suisala (7 May 2014) Police v. Kofe Sauvao Tasi (10 March 2014)
	Police v. Fritz Neufeldt (23 September 2013) Police v. Temukisa Seiuli (9 November 2015) Police v. Kalapu [2016] WSDC 13 Police v. Puni [2014] WSSC 57,
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

STEVEN BOURNE, male of Tanugamanono and Lalovaea
Defendant

Counsel
Ms. I. Atoa for National Prosecution Office
Mr Tuisa T. Patea for Defendant

Sentence: 27 September 2016

SENTENCING REMARKS OF JUDGE ROMA

Charges

1. Defendant, you appear this afternoon for sentencing on the following 2 charges:
   • (i) Theft of the gear of a mazda sedan familiar valued at $1,000.00, being property of Tise Muliaga (161 & 165(c), Crimes Act 2013);
   • (ii) Obtaining by deception of $800.00 monies from one Timoteo Molesi (s172(1)(a) & (d), 173(b), Crimes Act 2013).
2. The maximum penalty for each charge is 2 years imprisonment so for both charges, you are liable to an imprisonment term of 4 years.
3. You denied both charges and following a defended hearing on 7 July 2016, I found you guilty of both.

Offending

4. In a decision delivered on 22 August 2016 and reasons made available on 16 September 2016, I found amongst others that you:
   • (i) Removed the gear of Tise’s vehicle without his knowledge and consent and installed it Timoteo’s vehicle when the latter came to you looking for a spare gear;
   • (ii) Sold the gear as your own property to Timoteo, from which you received payment of $800.00;
   • (iii) Subsequently when police became involved, the gear was removed from Timoteo’s vehicle and installed back in Tise’s vehicle.

Aggravating factors

5. Firstly, the dishonesty and deception involved is in itself an aggravating feature of your offending. You saw the opportunity to gain from selling the gear, and did so without the knowledge and consent of Tise, its rightful owner. Whatever issues you had with him over an agreement for you to operate the vehicle and pay him weekly turn ins, they were no excuse and did not justify what you did.
6. Secondly, I accept that there was some planning and premeditation on your part.
7. Thirdly, the amounts involved are not insignificant. Whilst the gear was subsequently returned to Tise (first victim), it was only after the police became involved and for a while, he was deprived of his property valued at $1,000.00, and Timoteo (second victim) suffered loss in a sum of at $800.00.
8. Fourthly, your offending involved 2 victims.
9. Fifthly, you have a previous conviction for theft dated 4 September 2013. Prior to yesterday when this matter was last called, your Counsel referred in his submissions to you as a first offender. He must have made that submission on your instructions. Prosecution on the other hand in their sentencing memorandum referred to a previous offending for misleading. They argued then that whilst that previous ‘misleading’ charge was not exactly the same as the present charges, they all involve an element of dishonesty and showed a tendency for you to be untruthful.
10. But yesterday in Court, before I was to pass sentence, prosecution submitted your previous conviction record. That record, which you accept, refers to a number of offences, the most relevant being your conviction for theft in September 2013 where you were given a 12 months suspended sentence and fined $250.00.

Mitigating factors

11. Whilst not insignificant, I accept that the amounts involved in the charges are smaller compared to other cases that have come before the Court.
12. The only other mitigating factor in my view relates to your personal circumstances as highlighted in Counsel’s submissions.
13. I accept that the gear was subsequently returned and installed in Tise’s vehicle, but it was much later and only after the police became involved.
14. Counsel also submitted yesterday that you have been paying Timoteo monthly payments pursuant to an Order of the Court on Judgment Summons, for his loss when the gear was returned to Tise. I bear in mind however that those payments were not voluntary. Timoteo himself had to come to Court to recover his loss. After he was granted judgment, he had to come back to Court to enforce it. Thus, it is only pursuant to an Order of the Court that you are making those payments.

Sentencing submissions

15. Prosecution seeks a custodial sentence with a starting point of 2 years. In its sentencing memorandum, they refer to some Theft cases where custodial sentences were imposed (Police v. Tauivalea Peleti (4 November 2013) involving theft of items worth $4,903.36; Police v. Sale Maeloi (16 April 2014) involving theft of $1,350.00 worth of items and a defendant with a previous conviction for theft); and Police v. Alisa Suisala (7 May 2014) and Police v. Kofe Sauvao Tasi (10 March 2014) where non custodial sentences were imposed.
16. For obtaining by deception, the defendants in the 2 cases referred to by prosecution namely Police v. Fritz Neufeldt (23 September 2013) and Police v. Temukisa Seiuli (9 November 2015) were handed custodial sentences. In the former, there were 2 counts and the total amount involved was $1,150.00. In the latter, the amount involved was $2,400.00.
17. Your counsel on the other hand seeks a non custodial sentence. Even with your previous and related conviction, Counsel pleads with the Court not to impose a custodial sentence. He refers to the cases of Police v. Kalapu [2016] WSDC 13 and Police v. Puni [2014] WSSC 57, but neither of the defendants in both cases had a previous conviction for the same offence. In fact in Police v. Kalapu [2016] WSDC 13, the defendant was sentenced to 6 months imprisonment and does not help your case.

Sentencing Principles

18. I agree with prosecution that relevant in your sentencing are the purposes and principles of accountability, denunciation and deterrence.
19. I must also have regard to the desirability of keeping offenders in the community so far as is practicable and consistent with the safety of the community under the Community Justice Act 2008. I would have been minded therefore to impose a community based sentence but for your previous and related conviction.
20. The Court gave you a chance in 2013. A year later, you reoffended as in the present charges. You cannot keep coming back for the same offence and expect this Court to grant you the same leniency.
21. Taking into account the circumstances of your case, the amounts involved, the fact that the property has since been returned to the first victim, and that you are paying the second victim judgment he obtained in recovery of his loss, I am of the view that the sentence must be deterrent.

Decision

22. For the above reasons, you are convicted of both charges and sentenced to 4 weeks imprisonment to be followed by 6 months supervision with a condition that you complete 60 hours of community work.

JUDGE FEPULEAI A ROMA