Police v Aperila [2013] WSSC 147 (4 December 2013)

SUPREME COURT OF SAMOA

Police v Aperila [2013] WSSC 147

Case name:	Police v Aperila
Citation:	[2013] WSSC 147
Decision date:	04 December 2013
Parties:	POLICE and AUNESE APERILA, male of Vaitele-fou and Puapua Savaii (First Defendant) and ALAPATI CHONG NEE, male of Vaitele-fou and Aleisa (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Tagaloa for prosecution
	Defendants unrepresented
Catchwords:
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Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

AUNESE APERILA, male of Vaitele-fou and Puapua Savaii.
First Defendant

AND:

ALAPATI CHONG NEE, male of Vaitele-fou and Aleisa.
Second Defendant

Counsel: O Tagaloa for prosecution
Defendants unrepresented
Sentence: 04 December 2013

SENTENCE

1. Both defendants pleaded guilty to one count of burglary which carries a 10 year maximum penalty. The police summary of facts which they both admit says that first defendant Aunese is 18 years of age of Vaitele-fou and Puipaa unemployed. Second defendant Pati Chong Nee 20 years old of Vaitele-fou and Aleisa is a farmer. The complainant is a 50 year old married man of Vaitele-fou and Malie works for the Government and has two children.
2. In the early hours of 28 September 2013 the complainant and his family were asleep in their two storey house at Vaitele-fou. The complainant and his wife were on the ground floor and their children on the upstairs floor. The defendants cut through the fence that surrounds the complainants house. Entered the house and they made their way to the upstairs floor. The children ran downstairs and told the complainant about the defendants being upstairs. The complainant went upstairs but the defendants had fled. Complainant and sons drove around the surrounding streets and spotted the defendants. They pulled up next to the defendants who ran away. They were only able to catch the defendant Aunese but not the defendant Pati. But Pati was located by the police within a day or so.
3. Breaking and entering peoples houses in our country is far too common. Especially when committed by young men such as the two of you. Our Parliament recently reviewed the offence of burglary and increased the maximum penalty from 5 to 10 years. This is a sign of Parliaments concern over this kind of behaviour.
4. In this case you broke into the house where the complainant and his family were all asleep. You did not steal anything but that is probably because you were discovered by the children before you could. What you did needs to be thoroughly discouraged. Deterrent sentences are required in respect of both of you and in respect of the general public. As to the appropriate deterrent sentence that is the question.
5. Considering all matters I have come to the conclusion that Aunese I am not going to send you to prison for what you did. I will give you a different sentence. But in respect of you Pati you have a previous conviction for burglary and theft. You have done this sort of thing before. You have had your chance no more chances are available for you. I will deal with you first.
6. An appropriate penalty for your offending would be 12 months in prison. From that I will deduct 4 months for your guilty plea leaves a balance of 8 months. From that I will deduct a further period of 2 months to reflect the fact that you are still young and you have expressed some remorse for what you did. There are no other deductions you qualify for. For that offence you will be convicted and sentenced to 6 months in prison. But your time in custody awaiting sentences is to be deducted from that. I also recommend to the Prison Authority that you serve your sentence at the Olomanu Juvenile Facility.
7. It is further ordered that after you serve your 6 months Pati then you will begin your District Court sentence on the burglary and theft of 12 months probation and 100 hours community service. I am going to vary that sentence and add on two special conditions to your probationary term. Firstly defendant is not to associate or contact the co-defendant Aunese. Secondly defendant is to live and work only where approved by the probation office. Ua e malamalama la i le faaiuga o mataupu ia e faasaga ia oe Pati? (Defendant said yes)
8. E 6 masina lou taimi falepuipui e tuli mo le solitulafono lenei. A maea ona tuli lou 6 masina faatoa fai loa lea o lau 12 masina faanofo vaavaaia ma lou 100 itula faigaluega lea na faasala ai oe i le isi mataupu e le Faamasinoga Faa-Itumalo. Ma o tuutuuga faapitoa lena lea ua faaopoopo atu i le faaiuga muamua aua e te toe fesootai i le tama lea. Aua o le lua fesootai faatasi lea ua lua i’u mai ai i luma o le faamasinoga. O leisi tulaga ina ia e nofo ma e faigaluega i le mea e ioe iai le ofisa faanofo vaavaaia, na o ina e mafai ona e nofo ma e faigaluega ai. E iai se fesili i le faaiuga o lau mataupu? (Defendant said no). Ia talosia ia gata ai i i le vaai a le faamasinoga ia oe Pati. O le sau soo i luma o le faamasinoga e leai se lumanai.
9. In respect of you Aunese you will be convicted and placed on probation for 6 months. Tu’utu’uga fa’apitoa o lou faanofo va’ava’aia;
   • (i) E sa ona e toe fesootai ma le tama lea o Pati. O lou mulimuli ia Pati lea ua e iu mai ai i totonu o le potu lenei.
   • (ii) Ia e nofo i le mea o lo’o iai ou matua. E sa ona e nofo i seisi mea vagana ua ioe iai le ofisa faanofo va’ava’aia.
   • (iii) Fai lau sa mai le 6:00 pm e o’o i le 6:00 am e tatau ona e nofo i le tou aiga ma le tou fale. E sa ona maua oe i fafo o le tou aiga po’o le tou fale i le va o le 6:00 pm ma le 6:00 am. Ua e malamalama? Vagana ua tou o ma lou tina poo lou tamā i se feau talafeagai.
10. O isi tulaga o lou fa’anofo va’ava’aia lea o le a faamalamalama atu e le alii ofisa lea e alala mai. Fai se tou tala pe a maea le faaiuga o le faamasinoga e fa’amalamalama atu isi tulaga o lou fa’anofo va’ava’aia ia te oe ma le tina o le aiga. O le vaega mulimuli o le faasalaga Aunese e tatau ona tuli lou 50 itula faigaluega i lalo o le polokalame a le ofisa mo le manuia lautele o le atunuu. Ua e malamalama i le faaiuga o le mataupu? (Defendant indicated he understood). Aua e te so’o ia Pati, na maua le avanoa le faaogaina le avanoa ia la ua tofu i gauta. O le mea lena e tupu ia oe pe te ma’i pe te le ma’i pe a toe aumai oe Aunese.

JUSTICE NELSON