Police v Iosefatu [2013] WSSC 76 (24 September 2013)

SUPREME COURT OF SAMOA

Police v Iosefatu [2013] WSSC 76

Case name: Police v Morriez aka Maligi Iosefatu

Citation: [2013] WSSC 76

Decision date: 24 September 2013
Parties:
POLICE (Prosecution) and MORRIEZ aka MALIGI IOSEFATU male of Nofoalii and Saluafata

Hearing date(s):

File numbers: S1990/13 and S1991/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
L Su’a and B Faafiti-Lo Tam for prosecution
Accused in person

Catchwords:

Words and phrases:
aggravated burglary
Wilful damage and trespass
distinguishing feature
simple burglary
physical object

Legislation cited:
Crimes Act 2013-
Crimes Act 1961 (NZ)
Adams on Criminal Law (1992)

Cases cited:
Police v Dylan Wilson and Kopo Seuamuli Fua
Police v Fatima Tavui [2013] WSSC 6
Police v Palemene Tovia
Police v Seminare Ajawas [2013] WSSC 49;
R v Allingham and Bandy [1954] NZPoliceLawRp 9; [1954] NZLR 1223
R v Martin [1964] NZCA 23; [1965] NZLR 228

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NOs: S1990/13, S1991/13

BETWEEN

P O L I C E

Prosecution

A N D:

MORRIEZ aka MALIGI IOSEFATU male of Nofoalii and Saluafata

Accused

Counsel: L Su’a and B Faafiti – Lo Tam for prosecution

Accused in person

Sentence: 24 September 2013

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of burglary pursuant to s.174 (1)(a) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity. There is no charge of theft which usually accompanies the charge of burglary.
2. The offence of burglary provided in s.174 of the Act is sometimes referred to as simple burglary to distinguish it from the more serious offence of aggravated burglary provided in s.175 which carries a maximum penalty of 14 years imprisonment. The distinguishing feature between the two offences is that aggravated burglary involves possession or the use of a ‘weapon’ during or after the commission of a burglary whereas simple burglary does not require possession or the use of a ‘weapon’. The term ‘weapon’ is not defined in s.175 or any other provision of the Act.
3. Section 174 (3) refers to the use of an ‘instrument’ for the purposes of both simple burglary and aggravated burglary without defining what is an ‘instrument’. Thus, while an ‘instrument’ can be used for the commission of a simple burglary or an aggravated burglary, a ‘weapon’ can only be used for the commission of an aggravated burglary. The issue that has arisen is whether the small knife used by the accused in this case to tear the screen of the window of one of the rooms of the convent was an ‘instrument’ in terms of s.174 (3)(a) or a ‘weapon’ in terms of s.175. If the small knife was an ‘instrument,’ then it was open to the prosecution to bring the present charge as one of simple burglary under s. 174 which carries the maximum penalty of 10 years imprisonment. But if the small knife was a ‘weapon’, then the charge should have been brought as one of aggravated burglary under s.175 which carries a maximum penalty of 14 years imprisonment. It is therefore important to ascertain the meanings of the terms ‘instrument’ and ‘weapon’.
4. For assistance in determining the meaning of the term ‘instrument’, I refer to two New Zealand cases which explain that term in relation to burglary. In R v Allingham and Bandy [1954] NZPoliceLawRp 9; [1954] NZLR 1223 the appellants were charged under s.282(a) of the Crimes Act 1908 (NZ) with the offence of having possession by night without lawful excuse instruments of housebreaking. In delivering the judgment of the Court of Appeal, Finlay J said at p.1226:

“The Court is of the opinion that the word ‘instrument’ is used in this section (s.282 (a)) in a wide and not in a narrow sense, and that it comprehends all those things....which are or can be applied to advantage by those resorting to housebreaking. It will consequently include such articles as maybe of use to a housebreaker either in more efficiently effecting an entrance, or in effecting his escape, or concealing his identity. All such things may constitute the equipment of a housebreaker, and the word ‘instrument’ should so be interpreted as to include all these.

Gloves and torches are common things which come within such a definition and many people will be found with them.”

5. In the later case of R v Martin [1964] NZCA 23; [1965] NZLR 228, the appellants were jointly charged under s.244 (1) of the Crimes Act 1961 (NZ) with the offence of having in their possession by night instruments capable of being used for burglary. Turner J in delivering the judgment of the Court said at p. 232:

“In New Zealand this Court in R v Allingham and Bandy [1954] NZPoliceLawRp 9; [1954] NZLR 1223 expressed the view that ‘the word instrument is used in this section in a wide and not in a narrow sense and ... comprehends all those things ... which are or can be applied to advantage by those resorting to housebreaking’ ... . The term is consequently to be read as including all such things as may constitute the equipment of a housebreaker. The Court went on in the same passage to say that ‘gloves and torches are common things which come within such a definition.”

6. Further on in p. 232 in his Honour’s discussion of what objects may be comprised in the term ‘instrument’, Turner J said:

“[All] physical objects capable of physical use as part of a burglar’s equipment will in our opinion be included. A torch is within this definition, for it may be physically used to facilitate the process both of breaking and of entering. For the same reasons we are of the opinion that the pair of gloves found in this case was also an article or articles capable of being used for burglary.”

7. The meaning of the term ‘weapon’ used in s.175 which provides for aggravated burglary is not free from difficulty and I have not been able to find any case which deals authoritatively with the meaning of that term. However, in Adams on Criminal Law (1992) vol 1, CA 240A.04, the learned authors, when discussing the meaning of the term ‘weapon’ in the context of the offence of aggravated burglary, state:

“The term ‘weapon’ is not defined in the Act ... . Presumably it will carry the same meaning as in the general law, and will therefore include both items which of themselves are designed or adapted for the purpose of causing injury to persons, as well as any other item which is intended to be used for such purpose... The position of items such as knives which may be used either as an ‘instrument’ for forcing entry or used as a weapon is unclear. It is possible that mere possession of such an item will be enough, but in view of the seriousness of the offence it is submitted that the prosecution should be obliged to prove at least an intention to use the item as a weapon if the situation should require it. However, compare R v Stores (1989) 89 Cr App R 26 in which it was held a household knife, not in itself an offensive weapon, came within the section because the accused admitted he carried it for self-defence against a gang who wished him ill.”

8. On the basis of R v Allingham and Bandy [1954] NZPoliceLawRp 9; [1954] NZLR 1223, 1226 and R v Martin [1964] NZCA 23; [1965] NZLR 228, 232, the small knife which the accused in this case used to tear the window screen so that he could get to the window louvers which he removed thus making it possible for him to enter the convent of the Sisters of the Mercy would be an ‘instrument’ in terms of s.174 (3) (a). That is because the knife was the physical object used by the accused either to effect or facilitate his entry into the convent. On the basis of the opinion expressed in Adams on Criminal Law (1992), vol 1, CA 240A. 04, the knife would not be a weapon in terms of s.175. The reason being that on the facts presented in the prosecution’s summary of facts and confirmed by the accused, he was not in possession of the knife for the purpose of causing injury to someone. I therefore conclude that the prosecution has properly laid the charge against the accused as one of simple burglary under s.174 instead of laying it under s.175 as one of aggravated burglary.
9. It also appears from the authorities I have cited that a knife can be an ‘instrument,’ or a ‘weapon,’ or both, depending on the circumstances. The knife will be an ‘instrument’ if it is used for the purpose of effecting or facilitating entry into a building; it is a ‘weapon’ if the accused is in possession of the knife for the purpose of causing injury to someone; and it can be both an ‘instrument’ and a ‘weapon’ if the knife is used not only for the purpose of effecting or facilitating entry into a building but it also intended to cause injury to someone in the building.
10. As already pointed out, the offence with which the prosecution has charged the accused is that of simple burglary. Burglary or simple burglary is complete when a person enters a building without authority with intent to commit a crime in the building: s.174 (1) (a) or when a person having entered a building remains in the building without authority with intent to commit a crime in the building: s.174 (1) (b). What may happen afterwards, that is, whether a crime is committed or not, is irrelevant. In most cases of burglary, the crime intended and carried out by the burglar is theft. But that does not make theft an ingredient of burglary. A burglary can be committed without any theft being committed. But where the burglar steals an item of property, then that is theft. That is why when a burglar enters a building with the intent to steal and actually steals an item of property inside the building he is charged with both burglary and theft. The elements of theft are explained in Police v Fatima Tavui [2013] WSSC 6.
11. For sentencing purposes, where the accused is charged with both burglary and theft arising from the same offending, it is normal practice to apply the totality principle. A separate sentence is imposed for the burglary charge and a separate sentence is imposed for the theft charge. Both sentences can be of the same duration. The two sentences are then made concurrent. This approach is appropriate where the sentencing Judge is mindful of imposing an end sentence of imprisonment. It would not be appropriate where the sentencing Judge is mindful of imposing a non-custodial sentence.
12. For previous cases in which the above principles were discussed, see Police v Seminare Ajawas [2013] WSSC 49; Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13; sentence delivered on 2 August 2013); Police v Palemene Tovia (2013) (sentence delivered on 5 August 2013).

The offending

13. The Catholic Sisters of the Mercy have a convent at Leulumoega-tuai. A convent is a building where nuns live.
14. On Saturday 27 July 2013 at around 4am in the morning while it was still dark the accused went to the said convent with the intent of stealing. He tore the screen wire of the louver windows of one of the rooms using a small knife. He then removed the louvers. He entered the convent through that window and went into the living room. Everyone in the convent was asleep. The accused then took the television and DVD player that were in the living room and placed them outside the window where he had entered the convent. But that was not enough for him. He was also hungry. So he went and opened the kitchen refrigerator. He found a cake and ice-cream and had an early morning breakfast of cake with ice-cream. He then slept on the bed inside the room where he had entered the convent as if it was his own bedroom.
15. One of the nuns, who lives in the convent happened to wake up to go to the bathroom. She noticed that some of the window louvers in her room that had been kept closed before she went to sleep were open. She became suspicious that a stranger was inside the convent. She then tried to open the door of one room but it was locked. She then opened the door of the next room. When the door opened she saw to her great shock a young man sleeping on the bed in that room. She then gently closed the door so as not to wake up the intruder and sought the help of a neighbour. This neighbour and members of his family came and surrounded the convent so that the intruder could not escape while the Faleolo police were called in. When the police arrived, the intruder, who turned out to be the accused, had woken up and was sitting on the bed holding his knife. He was then taken away by the police.

The accused

16. The accused is a 27 year old male of Nofoalii and Saoluafata. He is single and unemployed. He has a number of previous convictions starting from 2002. These include previous convictions for burglary, theft, unlawful entry and trespass. For his previous convictions on 26 September 2007 for burglary, theft, unlawful entry, willful damage and trespass he was given concurrent sentences of 5 years imprisonment. These sentences must have been completed in 2012 and now this offence in July 2013. In fact in 2008 he had also been convicted of escape from lawful custody and was given a 12 months suspended sentence.

The aggravating and mitigating features

17. The aggravating features relating to this offending are: (a) the time the offence was committed, it was around 4am in the morning, (b) the use of a knife to effect the commission of the offence, (c) the impact of the offending on the Sisters of the Mercy as set out in the victim impact report, (d) the building that was burgled was the convent of the Sisters of the Mercy, and (e) home invasion. There is no mitigating feature of this offending.
18. In Police v Palemene Tovia (2013) (sentence delivered on 5 August 2013), para 13, this Court said:

“In my opinion, home entry is an aggravating factor relating to the offending because it runs the risk that there is someone in the house or a sleeping owner may wake up and find the burglar in the house. This may lead to violence and someone may get hurt. There is also likely to be distress, anxiety, and a sense of violation felt by the homeowner upon discovery that his home has been burgled. Such distress, anxiety, and sense of violation may have long term effects.”

19. In relation to the accused as offender, the aggravating factor is the accused’s previous convictions which includes a number of previous convictions for burglary, theft, unlawful entry and trespass. The only mitigating factor personal to the accused is his early plea of guilty to the charge. But I will not give a significant discount for the guilty plea because the accused was caught in the act and he had no real option but to admit to the charge. The plea of guilty also cannot be taken as a sign of remorse given the number of the accused’s previous convictions for the same or similar type of offending.

The decision

20. Given the aggravating features of the offending and the need for deterrence in this type of case, I will take a starting point for sentence of 10 months. In doing so, I have to bear in mind that the accused has been charged only with burglary, not with burglary and theft. For the accused’s previous convictions, there will be an uplift of 3 months. I am conscious that too high an uplift for previous convictions may give the impression that the accused is being punished again for offences for which he has already being punished. That increases the starting point to 13 months. I will deduct only one month for the guilty plea. That leaves 12 months.
21. The accused is convicted and sentenced to 12 months imprisonment.
    

CHIEF JUSTICE