Police v Mitchell [2011] WSSC 156 (4 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

DONALD MITCHELL male of Vaiala and Vaivase-uta.
Defendant

Counsel: Ms T.Toailoa for prosecution
Defendant unrepresented

Sentence: 04 November 2011

SENTENCE

The summary of facts which Mr Mitchell has admitted and accepted states that he is a 35 year old male of Vaiala and Vaivase-uta, married with four children, currently working as a taxi driver. It also says that at all relevant times the defendant stole property belonging to his mother Florence Mitchell De Leon who is presently a resident of the United States of America.

It appears that the mother left the defendant in charge of these properties while she resided in the United States and that the defendant without her authority sold the properties. The properties were taken from various places being from the family residence, from the mothers taxi business and from various storage containers where they had been stored. As a result the defendant faces three charges of theft to which he has pleaded guilty.

The first relates to a number of miscellaneous items which are fully listed in the summary of facts but includes compressors, an air conditioner, fridges, coffee tables, a television, office chairs, filing cabinets and various kitchen materials and as well a computer and barbeque gas set. The total value of the various items is $52,656.00. The second charge to which the defendant pleaded guilty was theft of a Nissan Sentra taxi valued at $12,000. A vehicle which he apparently sold again without the mothers knowledge or authority. The third charge relates to the theft of another Nissan Sentra taxi also valued at $12,000 again sold without the mothers knowledge or authority. The total value of all the properties stolen by the defendant $75,753.00 and it is in respect of these properties that the defendant now appears for sentence. Each charge carrying a maximum penalty at law of 5 years in prison.

It also appears from the material before the court that this is not the first time the defendant has done this sort of thing. He has a previous conviction in the District Court in December 2006 for theft for which he was fined and ordered to pay restitution. That charge was in relation to another complainant. On that occasion he was given an opportunity by the court and was not sent to prison. An opportunity that the defendant has unwisely not used.

The thefts in this case involved some $75,000 worth of property which is a significant amount. Some of it has been recovered but the majority of the property has been lost to the owner. The defendants mother in her victim impact report says she has forgiven the defendant because he is her son and therefore is her present from the almighty. The fact that the defendants mother has brought him to the law and this court indicates that she had no other alternative. And clearly Mr Mitchell it is now time for you to understand that offending like this does have certain consequences. Jail terms are commonly imposed for offending on this kind of scale in order to act as a deterrent to the person involved in the theft and to others who may be minded to follow that persons example. It is also imposed because theft is a very common problem in the country that we live in.

An appropriate starting point for sentence for your charges would be a term of 4 years in prison. But from that start point you are entitled to certain deductions which I will now make. For the fact that you have pleaded guilty and saved the courts time and resources a deduction of one-third of that sentence is appropriate. In other words a period of 16 months leaving a balance of 32 months. From that balance you are entitled to a deduction because of your previous good character notwithstanding your previous conviction and also to reflect the other factors in your favour outlined in the probation office report on you. In respect of that I deduct a period of 3 months from the balance of 32 leaving 29 months. To reflect the properties that were recovered by the police in this matter a deduction of 6 months will be made. Leaving a balance of 23 months.

In respect of that balance there must be some adjustment made for the fact that you have a previous conviction for this sort of offence. Usually that adjustment means an increase in penalty. However I have taken account of what your mother has stated and her plea for leniency for you in the victim impact report that has been filed through the Attorney Generals Office in this matter. Any allowance for that would be counteracted by any increase for your previous conviction. I therefore will not make any further adjustment to the penalty.

There are no more deduction that you are eligible for Donald. In respect of this matter you will be convicted and serve a term of 23 months in prison in respect of all three charges as a total sentence.

............................
JUSTICE NELSON