Police v Ajawas [2013] WSSC 49 (31 July 2013)

SUPREME COURT OF SAMOA

Police v Ajawas [2013] WSSC 49

Case name: Police v Seminare Ajawas

Citation: [2013] WSSC 49

Decision date: 31July 2013

Parties:
Police (prosecution) and Seminare Ajawas (Accused) male of Vaitele-uta and Satuimalufilufi.

Hearing date(s):

File number(s):
S8036/13, S8037/13, S8038/13
S8039/13, S8040/13, S8041/13,
S8042/13, S8043/13, S8044/13

Jurisdiction: CRIMINAL

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:

Representation:
F E Niumata and O Tagaloa for prosecution
Accused in person

Catchwords:
Aggravated burglary
Burglary
First time burglar
Free burglar
Recidivist burglar
Simple burglary

Words and phrases:
Escape from lawful custody
Intentional damage to property
Theft
Starting point for sentencing approach
Aggravating factors
Mitigating factors
Categorisation of burglary cases

Legislation cited:
Crimes Ordinance 1961
Crimes Act 2013

Cases cited:
Iwikau v Police [2012] NZHC 2027
Senior v Police (2000) 18 CRNZ 340
Police v Vester Toa and Peter Alatise (2013)
Police v Solomona Luamata
Rio v Police [2011] NZHC 1002
Blissett v Police [2013] NZHC 156,
Monsall v New Zealand Police [2009] NZHC 1097
R v Columbus [2008] NZCA 192

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NOS.

S8036/13, S8037/13, S8038/13

S8039/13, S8040/13, S8041/13,

S8042/13, S8043/13, S8044/13

BETWEEN

P O L I C E

Prosecution

A N D

SEMINARE AJAWAS male of Vaitele-uta and Satuimalufilufi.

Accused

Counsel:

F E Niumata and O Tagaloa for prosecution

Accused in person

Sentence: 31 July 2013

S E N T E N C E

The charges

1. The accused Seminare Ajawas appears for sentence on one count of aggravated burglary under s.175 of the Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment, one count of burglary under s.174 which carries a maximum penalty of 10 years imprisonment, one count of causing intentional damage to property under s.184 (2) which carries a maximum penalty of 7 years imprisonment, one count of theft under ss.161 and 165 (c) which carries a maximum penalty of 2 years imprisonment, and one count of escape from lawful custody under s.143 which carries a maximum penalty of 2 years imprisonment. The accused pleaded guilty to all counts at the earliest opportunity.
2. The offence of aggravated burglary under s.175 of the Crimes Act 2013 is a new offence which did not exist under the now repealed Crimes Ordinance 1961.
3. The offence of simple burglary under s.102 of the Crimes Ordinance 1961 carried a maximum penalty of 5 years imprisonment and came within the jurisdiction of the District Court. Because the maximum penalty for simple burglary has been increased to 10 years imprisonment under s.174 of the Crimes Act 2013, it now comes under the jurisdiction of this Court.
4. The offence of causing intentional damage to property under s.184 of the 2013 Act supersedes the offence of willful damage under s.113 of the 1961 Ordinance. The maximum penalties of 14 years and 7 years imprisonment s.113 of 1961 Ordinance remain the same under s.184 of the 2013 Act. However, the maximum penalty of 3 years imprisonment for other cases of willful damage under s.113 of the 1961 Ordinance does not re-appear in the 2013 Act.
5. The offence of escape from lawful custody under s.40 of the 1961 Ordinance which carried a maximum penalty of 2 years imprisonment has been re-enacted in s.143 of the 2013 Act with the same maximum penalty.
6. Under ss.85 and 86 (1) (d) of the 1961 Ordinance, the maximum penalty for theft of a property whose value exceeds $400 was 7 years imprisonment. Under ss.161 and 165 (c) of the 2013 Act, theft of a property whose value exceeds $500 but does not $1,000 carries a maximum penalty of 2 years imprisonment.

Burglary and aggravated burglary

7. The offence of burglary, often referred to in the relevant New Zealand case law as simple burglary, is now provided in s.174 of the Crimes Act 2013 which states:

“(1) A person commits burglary and is liable to imprisonment for a term not exceeding 10 years who:

“(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit a crime in the building or ship; or

“(b) having entered any building or ship, remains in it without authority and with intent to commit a crime in the building or ship”

“(2) In this section and in s.175, ‘building’ means any building or structure of any description, whether temporary or permanent, and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

“(3) For the purposes of this section and section 175:

“(a) entrance into a building or ship is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building or ship;

“and

“(b) a person who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority”.

8. The new offence of aggravated burglary is provided in s.175 which states:

“(1) A person is liable to imprisonment for a term not exceeding 14 years who:

“(a) while committing burglary, has a weapon with him or her or uses anything as a weapon; or

“(b) having committed burglary, has a weapon with him or her, or uses anything as a weapon, while still in the building or ship.

“(2) A person is liable to imprisonment for a term not exceeding seven (7) years who is armed with a weapon with intent to commit burglary”.

9. For present purposes, it is clear that in terms of s.174 (1) (a), the offence of burglary or simple burglary is complete upon unauthorised entry into a building with intent to commit a crime in the building. What happens after that is irrelevant, that is to say, whether theft or some other crime is committed or not in the building is irrelevant. The offence of simple burglary is complete upon entry with intent to commit a crime in the building. This must be why simple burglary is normally charged together with theft where an item of property is stolen by a burglar. But that does not make theft an ingredient of burglary. For sentencing purposes, I am of the opinion that where both burglary and theft are established or admitted, it would be appropriate to apply the totality principle because the two offences are committed by the accused during the course of the same criminal conduct almost simultaneously. The sentences for burglary and theft are then made concurrent. The alternative would be not to apply the totality principle but to consider burglary and theft separately and then fix a separate sentence for each offence and make these sentences cumulative. Whichever method is applied in a given case, the important thing is that the final sentence must be fair and just in the circumstances.
10. I have also noticed that the expression “breaks and enters” which has been traditionally used as the label for the offence of simple burglary under s.102 of the Crimes Ordinance 1961 is not repeated under s.174 of the Crimes Act 2013. While the term “enters” re-appears in s.174 (1) (a), the term “breaks” does not. It is therefore important to bear in mind that ‘to break’ is no longer a requirement of the offence of burglary but ‘to enter’ a building still is.
11. It is also clear that the offence of burglary or simple burglary under s.174(1)(b) is complete when a person who has entered a building, remains in the building without authority with intent to commit a crime in the building. What happens after that is irrelevant, that is to say, whether theft or some other crime is committed or not in the building is irrelevant. Simple burglary is complete in terms of s.174 (1) (b) where a person after entering a building remains in the building without authority with intent to commit a crime in the building.
12. The more serious offence of aggravated burglary may also arise in two situations. Firstly, it is evident from s.175 (1) (a) that the offence of aggravated burglary arises where a person, while committing a burglary , has a weapon with him or uses anything as a weapon while still in the building. Evidently, the distinction between simple burglary and aggravated burglary is that with aggravated burglary, the burglar has or uses a weapon during or after the commission of a burglary while still in the building whereas with simple burglary the burglar does not have or use a weapon either during or after the commission of a burglary.

Categories of burglary cases

13. Burglars have been helpfully categorised into three groups: a first time burglar, a recidivist burglar, and a spree burglar. In Iwikau v Police [2012] NZHC 2027, Collins J in the High Court of New Zealand said:

“[18] The Court in Senior v Police (2000) 18 CRNZ 340 categorised burglary cases by reference to whether the offender was a first time burglar, a recidivist burglar or a spree burglar. The first category is that of the ‘first time burglar’. The Court noted that a sentence of imprisonment may be imposed in those cases but frequently that was not the case: Senior v Police (2000) 18 CRNZ 340 at 344.

“[19] The second category is the “recidivist burglar’, where the length of the sentence will largely depend upon the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors. In cases that fall within the second category, the protection of the public is a significant factor in determining the appropriate sentence. The Court noted that, in these cases, Judges are likely to impose sentences which are more severe than those imposed on the offender on previous appearances for the same offence, but there are limits to this. The Court stated that a typical case falling within this category will involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences, where the burglar is probably a professional in the sense of being a person who burgles for a living...

“[20] The third category was that of the ‘spree burglar’. Offending will fall within this category where the burglar appears for sentence on a large number of burglaries all committed within a short space of time and usually having admitted at interview a number of burglaries which the police without such admissions, would not have been able to solve. The Court sets out cases it considered to be ‘spree’ cases.

The offending

14. The accused is a prisoner at Tafaigata prison serving a term of imprisonment. On Friday morning, 17 May 2013, he was doing prison labour. When the prison authorities were not looking, he escaped from the prison compound. He had a machete with him. When he came to Siusega, he used the machete to break the glass door of the house which belongs to the complainant. However, he was unable to unlock and enter the house through the door. So he tried the windows. He used the machete to crack one of the glass windows. He then entered the house through the broken window. Whilst inside, he took a toy gun, a bag, and clothes.
15. Fortunately, a neighbour of the complainant had heard glasses cracking from the complainant’s house and saw the accused entering the house through the cracked window. The neighbour contacted the police immediately and the accused was apprehended by the police the same day.
16. The total value of the items of property stolen by the accused from the complainant’s house was $600. The total cost of the damage to the door and window of the complainant’s house is about $1,000.

The victim impact report

17. Apart from the costs of the items of property stolen and the damage to the house, the complainant says in the victim impact report that after this incident his three young girls have become paranoid and feel scared. The complainant has also been affected as a parent in terms of security and protection of his children and his house. The complainant can no longer leave his three young girls by themselves at home for fear that a man might come again and break into their house while only his young daughters are there. As a consequence, the complainant has been forced to put in security windows and take extra measures to ensure that his house is safe and secure. The adverse impact of the offending on the complainant and his daughters is an aggravating factor relating to the offending for the purpose of setting a starting point for sentence: see Police v Vester Toa and Peter Alatise (2013) para 14, (SC Nos. S798/13, S799/13: sentence delivered on 29 July 2013), Police v Solomona Luamata (2013) para 23 (SC No. S111/13: sentence delivered on 17 July 2013).

The accused

18. The accused is a 22 year old male of Vaitele-uta. At the time of this offending, he was serving a sentence of 9 months imprisonment for burglary. He has other previous convictions.
19. In July 2009 he was convicted and sentenced to 6 months imprisonment for possession of narcotics. In November 2009 he was convicted and sentenced to 2 months imprisonment for escape from lawful custody. In May 2010 he was convicted and sentenced to 9 months imprisonment for attempted break and enter (burglary). In February 2013 he was convicted and sentenced to imprisonment for 9 months for burglary. This was the sentence he was serving when he committed the present offences. Given that the accused is now 22 years of age, he must have been 19 years old in 2009 when he was sentenced to prison for possession of narcotics and then for escape from lawful custody.
20. In terms of the categorisation of burglary cases into first time burglar, recidivist burglar, and spree burglar in Senior v Police (2000) 18 CRNZ 340 as referred to in Iwikau v Police [2012] NZHC 2017, it would appear that this case does not fall within the category of a recidivist burglar. However, the accused is a repeat burglary offender and his previous convictions for attempted burglary and burglary are relevant.

The aggravating and mitigating factors

21. The aggravating factors in relation to the present offending are (a) the extent of the damage to the complainant’s house, (b) the value of the properties stolen, (c) the use of a weapon, namely, a machete, (d) the impact of the offending on the complainant and his young daughters, (e) home entry, that is to say, entry into a private dwelling house, and (f) the fact that these offences were committed when the accused escaped from lawful custody.
22. It appears from the New Zealand burglary cases that home entry or entry into a private dwelling house is an aggravating factor relating to the offending, for example, Rio v Police [2011] NZHC 1002, para [27].
23. Previous convictions are also an aggravating factor. However, there is no consensus in the New Zealand burglary cases as to whether previous convictions for burglary is an aggravating factor relating to the offending and therefore relevant to setting the starting point for sentence or whether such previous convictions is an aggravating factor relating to the offender and requires an uplift after arriving at a starting point (the Taueki approach). This inconsistency in judicial opinions in the New Zealand cases with regard to the place of previous convictions for burglary in the starting point approach when passing sentence in burglary cases is referred to in several cases, for example, Blissett v Police [2013] NZHC 156, Monsall v New Zealand Police [2009] NZHC 1097 and R v Columbus [2008] NZCA 192. I do not propose to become involved in this case in that inconsistency of judicial opinions. That should be left for another case. For present purposes, I am content to apply the Taueki approach which this Court has applied to other cases.

Discussion

24. Applying the totality principle of sentencing to the present offences, and having regard to the aggravating factors relating to the offending, there being no mitigating factors in the regard, I will set the starting point for sentence for the lead offence of aggravated burglary at 12 months. For the accused’s previous convictions for attempted burglary and burglary there will be an uplift of 3 months. There is no mitigating factor relating to the offender. That means the ‘provisional sentence’ is 15 months. I will then deduct 20% or 3 months for the accused’s guilty plea at the earliest opportunity. That leaves 12 months. The accused is therefore sentenced to 12 months imprisonment on the lead offence of aggravated burglary.
25. For the alternative offence of simple burglary, it is unnecessary to pass sentence.
26. For the offence of causing intentional damage to property, the accused is sentenced to 8 months imprisonment.
27. For the offence of theft, the accused is sentenced to 6 months imprisonment.
28. For the offence of escape from lawful custody, the accused is sentenced to 3 months imprisonment.
    29. All sentences are to be concurrent so that in effect the accused will serve a sentence of 12 months imprisonment. This sentence is to commence at the end of the sentence of 9 months imprisonment currently served by the accused.
        

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution