Police v Lafi [2013] WSSC 83 (2 October 2013)

SUPREME COURT OF SAMOA

Police v Lafi [2013] WSSC 83

Case name: Police v Lafi

Citation: [2013] WSSC 83

Decision date: 2 October 2013

Parties:
POLICE (prosecution) and ETI LAFI (accused) male of Matautu Falelatai and Tuvao Moataa

Hearing date(s):

File number(s): S1554/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia and O Tagaloa for prosecution
Accused in person

Catchwords:
Sentence, simple burglary, theft, elements of simple burglary, element of ‘without authority’, aggravating and mitigating features, starting point for sentence

Words and phrases:

Legislation cited:
Crimes Act 2013 s.174 (1) (a)

Cases cited:
Iwikau v Police [2012] NZHC 2027
Police v Seminare Ajawas [2013] WSSC 49
Senior v Police (2000) 18 CRNZ 340, 344,

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NOS: S1554/13

BETWEEN

P O L I C E

Prosecution

A N D

ETI LAFI male of Matautu Falelatai and Tuvao Moataa.

Accused

Counsel: F Lagaaia and O Tagaloa for prosecution

Accused in person

Sentence: 2 October 2013

S E N T E N C E

The charges

1. The accused Eti Lafi who is a 22 year old male appears for sentence on the charge of simple burglary, contrary to s.174 (1) (a) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and on the charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 7 years imprisonment under s.165 (b). To the charges the accused pleaded guilty at the earliest opportunity.

Burglary

2. Section 174 (1) (a) under which the accused is charged with burglary provides, as far as relevant,:

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

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

3. In terms of s.174 (1) (a), the elements of simple burglary consist of firstly, entry into a building or part of a building, secondly, without authority, and, thirdly, with intent to commit a crime in the building. The facts of this case give rise to a new and interesting issue in relation to the first and second elements because of the way the charge of burglary has been framed by the prosecution. I will now explain this issue.
4. The second element of ‘without authority’ for burglary under s.174 (1) (a) implies that a person who enters a building or part of a building must be a trespasser. Thus, what s.174 (1) (a) contemplates is a trespasser, that is to say, a person who enters a building or part of a building without the authority of the owner or the person in possession of the building. If, therefore, a person enters a building or part of a building with the authority of the owner or person in possession of the building then that person would not be a trespasser and therefore not a burglar.
5. In this case, the accused was staying in his former employer’s premises with the permission of his employer. His employer’s premises include a two storey building. The accused stayed on the top floor and his employer operates a rental car and car spare parts business on the ground floor. For the accused to get to the top floor he has to enter his employer’s building through a door at the ground floor and walk up the steps to the top floor. On those facts, the accused had the permission of his employer to enter the building. So to that extent he was not a trespasser and therefore not a burglar. But that is not the end of the matter.
6. One night at around 1.00am in the morning, the accused entered the building through the door at the ground floor. He walked up the steps to the top floor where he was staying. He did not go to sleep given the lateness of the hour. Instead, after a short while, he walked down the steps again. He then turned into the room on the ground floor where the car spare parts of his employer’s spare parts business are kept. He put some spare parts in a sack and removed them from the building. The accused had no authority from his employer to go into the room where the spare parts are kept. By doing so, the accused became a trespasser. That is because in terms of s.174 (1) (a) the accused entered ‘part of a building without authority’.
7. In other words, when the accused entered his employer’s building to go to the top floor where he was staying he was not a trespasser because he had the authority of his employer to do so. But when he entered the part of the building where his employer’s car spare parts are kept he became a trespasser because he had no authority to be there. Thus a person may not be trespasser when he initially enters a building with the authority of the owner but later becomes a trespasser when, while inside the building, he enters a part of the building he is not authorised to be. For an authority which shows that being a trespasser is an essential element of burglary, see the judgments of the High Court of Australia in Barker v R [1983] HCA 18 and in particular the joint judgment of Brennan and Deane JJ at para 5.

The offending

8. The accused was employed by Juliana’s Rental which operates a rental car and car spare parts business in a two storey building in Apia. The car rental and spare parts business is carried out on the ground floor. The owner made the accused stay on the top floor.
9. Early on Saturday morning 3 August 2013 at around 1:00am, the accused entered the building through a door at the ground floor. He walked up the steps to the top floor where he was staying. Instead of going to sleep, he walked down the steps again. When he got to the ground floor he turned to the room where his employer’s spare parts are kept. He then entered that room. That created some noise. It alerted the security guard who was on duty.
10. The security guard shone his torch into the spare parts room. The light shone directly into the accused’s eyes. The accused moved away to avoid being seen. But the security guard had sensed that someone was inside the spare parts room. So he kept on shining his torch into that room. When he could not see anyone, he went around to the back of the building and went inside through the back door which is near the spare parts room. He found the accused putting spare parts into a sack. When he asked the accused what he was doing, the accused replied he was getting things ready for work the following morning. The security guard then left being very suspicious of the accused’s actions.
11. After the accused had loaded the sack with spare parts, he took the sack out of the building and left it at the back of his employer’s premises. He then walked away from his employer’s premises. Shortly afterwards, a police petrol car came by and was stopped by the security guard. His suspicions were still weighing on his mind. He told the police about the sack he had seen the accused loaded with his employer’s car spare parts. The police then looked for the sack. They found the sack where the accused had left it at the back of his employer’s premises. When the police opened the sack, it contained four fog lights valued at $200, a pedal valued at $80, a CD player valued at $700, and another car part valued at $50. The total value of these items is $1,030. All these items were given back by the police to the accused’s employer.
12. At about 9:00am the same morning, the accused was apprehended by the police and taken to the Apia police station where he was cautioned and interviewed.

The accused

13. The accused has a de-facto wife. They have a 6 month old baby girl. Since this incident, the accused has been unemployed and depends on his family and his wife’s family for financial support.
14. The accused had an unhappy start in life. His parents separated when he was 5 years old. He and his three sisters were then brought up by their mother and maternal grandparents. The accused finished school at Year 11 and stayed home to serve his family. He found a job in 2010 but left that job to look his mother who had become very sick until she died in 2011. His second job is where the present incident occurred. The accused also told the probation service that he was drunk at the time he committed these offences. His reason for doing so was because of his low wages.
15. The accused is also a first offender. According to his wife he is a loving husband and a caring father. He is also a hardworking person.

The aggravating and mitigating features

16. The aggravating features of this offending are firstly, the clear breach by the accused of his employer’s trust as he had been allowed to stay on the top floor of his employer’s building and, secondly, the total value of the spare parts that the accused had stolen. The fact that all the stolen items were recovered by the police has a mitigating effect on the offending because it means that the employer had suffered no loss of property. In relation to the accused as offender, there is no aggravating feature. But there are mitigating features personal to the accused. He is a first offender and according to the accused’s wife her husband is a person of reasonably good character prior to the commission of these offences. He has also pleaded guilty at the earliest opportunity. The accused is also 22 years old.

Discussion

17. The offending in this case involves a betrayal by an employee of his employer’s trust. The accused was made to stay in the top floor of his employer’s two storey building. However, he burgled a room on the ground floor of the building and stole car spare parts valued at $1,030. This is not a case of a stranger who burgles a shop or other commercial premises and steals from it items of property.
18. On the other hand, the accused is a first time burglar. Even though a first time burglar may be given a prison sentence, frequently that is not done: Police v Seminare Ajawas [2013] WSSC 49 citing Senior v Police (2000) 18 CRNZ 340, 344, Iwikau v Police [2012] NZHC 2027. All the items stolen were also recovered so that there was no loss of property to the employer. Also in favour of the accused are the other mitigating features personal to him to which I have already referred.
19. In weighing the aggravating and mitigating features of the offending and the mitigating features personal to the accused and taking into account the need for deterrence in this type of case, I have decided to take 10 months as the starting point for sentence. I have done this because this is a case of burglary and theft committed by an employee against an employer. In a sense, this case has the features of theft as a servant but perhaps the prosecution has good reason for not having brought such a charge. For the fact that the accused is a first offender who has been a person of reasonably good character prior to the commission of these offences, I will deduct 2 months. That leaves 8 months. I will then deduct 1/3 or 2 months for the accused’s plea of guilty at the earliest opportunity. That leaves 6 months.

Result

20. The accused is convicted and sentenced to 6 months imprisonment on each of the charges of burglary and theft. Both sentences to be concurrent.
    

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia for prosecution