Police v Tapaga [2013] WSSC 112 (24 December 2013)

SUPREME COURT OF SAMOA

Police v Tapaga and Poneta [2013] WSSC 112

Case name: Police v Tapaga and Poneta

Citation: [2013] WSSC 112

Decision date: 24 December 2013

Parties: POLICE (prosecution) AND MANU TAPAGA male of Vaiusu and Fuluasou and MALOSI PONETA male of Fuluasou and Fagaee Savaii

Hearing date(s):

File number(s): FILE NOS: S2581/13,S2584/13,S2582/13, S2583/13,S2416/13,S2417/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia for prosecution
Accused in person

Catchwords:
sentence, burglary, theft

Words and phrases:
aggravating and mitigating features

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NOS: S2581/13,S2584/13,S2582/13,

S2583/13,S2416/13,S2417/13

BETWEEN

P O L I C E

Prosecution

A N D:

MANU TAPAGA male of Vaiusu and Fuluasou MALOSI PONETA male of Vaiusu and Fagaee Savaii

Accused

Counsel: F Lagaaia for Prosecution

Accused in person

Sentence: 24 December 2013

S E N T E N C E

The charges

1. The two accused appear for sentence on two joint charges of burglary pursuant to s.174 (1)(a) of the Crimes Act 2013 and two joint charges of theft pursuant to s.161 of the Act. Each of the burglary charges carries a maximum penalty of 10 years imprisonment under s.174 (1) (a). The theft charge in which the total value of the stolen properties is $450 carries a maximum penalty of one year imprisonment under s.165 (d) and the theft charge in which the total value of the stolen properties is $850 carries a maximum penalty of 2 years imprisonment under s.165 (c). The accused pleaded guilty to all the charges against them.

The offending

2. On Tuesday morning 6 August 2013 at around 10.00am, the accused approached a home at Ululoloa and hid near a fence. When the owner of the house and his family left their house, the accused climbed over the fence and broke into the house through the back door. They then searched the house and took an alcatel charger valued at $80, black PSP valued at $300, a Tomahawk Toa Samoa League shirt valued at $20, and a handbag valued at $50. The total value of those properties was $450.
3. On Wednesday morning 7 August 2013 at about 3.00am the accused entered a house at Tuaefu and took $700 and a Silver Sony speaker valued at $150. The total value of those properties was $850.
4. Some of the stolen items of property were recovered by the police during their investigation. Both accused were apprehended by the police on the 21 August 2013 but the accused Malosi Poneta escaped from police custody. He was not found by the police until 2 October.

The accused

5. The accused Manu Tapana is 17 years old. He is single and unemployed. He finished school at Year 9 when he was expelled from school. It appears from the pre-sentence report that he is a difficult person within his family. On 31 May 2013, he was convicted in the District Court of causing actual bodily harm and sentenced to one month imprisonment and ordered to perform 60 hours of community service. He has pleaded guilty to the present charges against him.
6. The accused Malosi Poneta is 23 years old. He finished school at Year 11 and then stayed home and helped out with family chores. His parents have separated and he is now staying with the family of a friend at Lalovaea. He drinks and smokes but has no job. On 22 April 2013, he was convicted in the District Court on two counts of burglary and two counts of theft and sentenced to 3 months imprisonment.

Aggravating and mitigating features

7. The usual aggravating feature of burglary accompanied by theft is the invasion of the privacy of a home and the consequential impact of such an invasion on the owner or occupants of the house. A sense of insecurity usually follows. The value of the stolen properties is another aggravating feature of this type of offending. The accused Manu Tapaga, though a first time burglar, is not a first offender. The accused Malosi Poneta is a repeat burglary offender. He also escaped from police custody after being apprehended by the police for these offences.
8. On the other hand, there is no mitigating feature in this case which relates to the offending or personal to any of the accused except for their guilty pleas.

Discussion

9. For the accused Manu Tapaga, I will set a starting point for sentence at 12 months having regard to the aggravating features of the offending and the need for deterrence in this type of case. I will then deduct 4 months for the guilty plea. That leaves 8 months.
10. For the accused Malosi Poneta, I will also set a starting point for sentence of 12 months having regard to the aggravating features of the offending and the need for deterrence in this type of case. I will add an uplift of 2 months for his previous burglary convictions. That increases the starting point to 14 months. I will then deduct 4 months for the guilty plea. That leaves 10 months.

The result

11. The accused Manu Tapaga is sentenced to 8 months imprisonment on each of the burglary and theft charges against him. All sentences to be concurrent. So the end sentence is 8 months imprisonment. Any time this accused has spent in custody pending the sentence of this matter is to be deducted from that sentence.
12. The accused Malosi Poneta is sentenced to 10 months imprisonment on each of the burglary and theft charges against him. All sentences to be concurrent. The end sentence is therefore 10 months imprisonment. Any time this accused has spent in custody is not to be deducted from that sentence. The reason is that when he was apprehended by the police for these offences he escaped from police custody. So he had to be kept in custody when re-apprehended by the police. He has also been convicted in the District Court for escape.
    

CHIEF JUSTICE