Police v Vaitoelau [2014] WSSC 180 (9 October 2014)

IN THE SUPREME COURT OF SAMOA
Police v Vaitoelau [2014] WSSC 180

Case name:	Police v Vaitoelau
Citation:	[2014] WSSC 180
Decision date:	09 October 2014
Parties:	POLICE (Prosecution) FAIGAME VAITOELAU male of Sapunaoa and Tafaigata (First Defendant) AND PENI FA’AILOGA male of Manono-tai and Tafaigata (Second Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On each count of burglary Faigame and Peni you are convicted and sentenced to 3 years in prison. On the charge of intentional damage, this relates to the damage to the second victims house. That carries a 7 year maximum penalty. There is no indication of the cost of the damage but it seems to be relatively minimal. But it was committed in the course of your burglarising the house. Making the appropriate deductions for your guilty plea convicted and sentenced to 12 months on that charge, concurrent term. On the next charge of theft from the first victims house of $6,100 worth of property. That carries a 7 year maximum penalty. Making the appropriate deductions for your guilty plea and factors in your favour convicted and sentenced to 2 years in prison. In respect of the next charge of theft from the second victims properties of $285 worth of property. Again making the relevant deductions convicted and sentenced to 3 months in prison. On the final charge of escape from prison carrying a 2 year maximum penalty. I note this is not your first escape. On that charge convicted and sentenced to 18 months in prison.
Representation:	F Lagaaia and T Mata’u for prosecution Defendants unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAIGAME VAITOELAU male of Sapunaoa and Tafaigata.
First Defendant

AND:

PENI FA’AILOGA male of Manono-tai and Tafaigata.
Second Defendant

Counsel: F Lagaaia and T Mata’u for prosecution
Defendant unrepresented

Sentence: 09 October 2014

SENTENCE

1. Defendants appear for sentence on two counts of burglary, one count of intentional damage, two counts of theft and one count of escape from prison. There was some dispute on the part of the first defendant as to the guilty plea but this morning he has indicated he accepts he is guilty and accepted the police summary of facts. Both defendants have extensive records for escape from prison, burglary and theft. They are veteran offenders.
2. The summary of facts which the defendants accept says the first defendant Faigame is a 28 year old male from Sapunaoa Falealili and the second defendant Peni is a 34 year old male of Manono-tai. Both defendants are currently serving terms at Tafaigata Prison.
3. The first victim is a 44 year old female of Vaipuna currently residing at Siusega. She is employed at SMI Hardware. The second victim is a 63 year old male of Siusega and is currently employed at the Link Pacific Samoa Limited as Company Director.
4. In July last year a police officer at Tafaigata went inside the cell number 8 to open the doors to all the cell-rooms to let the prisoners out to have a shower. The officer sat down in front of the cells to eat leaving his keys in front of him. Faigame came by picked up the keys and told the officers that he was going to unlock their cell number 8. It was then that Faigame removed a key from the bunch of keys on the officers key-ring without the officers knowledge. Later in July the defendant got into an argument with another inmate and requested the officer on duty to put him in cell number 2. This was done.
5. On Wednesday 23 July 2014 at about 8:00 pm whilst all the prisoners were inside their cells Faigame got up and used the key to cell 2 which he had taken from the officer to unlock their cell. Faigame and Peni then escaped from prison and walked to Siusega. The defendants went to the first victims house around 12:00 a.m. where they forced open the front door and entered the house without knowledge and authority of the owner. Whilst inside Faigame forced open the lock to the victims bedroom and went inside where the victim was sleeping.
6. The victim was shocked when Faigame squeezed her mouth while she was lying facing down on her bed. The victim screamed out for help waking her brother who was sleeping in the other room as well as their neighbours. The defendants fled the scene taking with them the following properties belonging to the victim: one Acer laptop valued at $2,500; one nokia cell-phone valued at $3,460.00; one cell-phone valued at $40 and one purse valued at $100. The total value of properties stolen was $6,100.
7. The defendants went to Falelauniu to sell the laptop for $100. One of the family members asked Faigame as to who owned the laptop. The defendant answered that it belongs to his sister. The gentleman told Faigame that he only has $50 and Faigame agreed that would suffice.
8. Later that same night the defendants went to the second victims house in Siusega where they broke into the property by cutting the perimeter link mesh fencing and entered the victims house through the bathroom window without the knowledge and authority of the second victim. In breaking into the second victims house the defendants broke the mosquito window mesh on two windows. Total cost of damage to the victims property is $250.
9. The defendants stole the following properties from the second victims house: two T-shirts valued at $70, one bath towel valued at $50, one hat valued at $20 and one surge protector valued at $75 to the total value of $285.
10. Later that morning the defendants returned to Tafaigata prison and went back into their cell number 2. At about 3:30 a.m. that same morning an officer on duty was patrolling around the prison cells when he saw that the cell number 2 door was unlocked. He then alerted the other officers on duty. When the police officers went inside to check, Faigame, Peni and the other two inmates were fast asleep. The room was searched and police officers found a cellphone where Faigame was sleeping. The matter was then reported to the Criminal Investigation Division. On Thursday 24 July 2014 defendants were brought to the Apia Police Station to be interviewed.
11. This summary of facts shows that the defendants broke out of prison at night and burglarised the houses of the two victims. Then they returned to prison and pretended to be sleeping. They obviously were not the only ones asleep, the prison guards must have all been soundly asleep as well. Both defendants must know that every time they do this sort of thing the only result is an increase in their prison time. Every time they commit these offences the court is not sentencing them, they are sentencing themselves. If they want to stop prison time and return to their families the solution is simple: stop doing this. Their future is in their own hands. But the court will do what it has to do.
12. Firstly in relation to the charge of burglary which carries a 10 year maximum penalty. You are charged with two counts of burglary. There is no reason to differentiate the sentence in respect of each count. Prosecution have suggested a 4 year start point uplifted to 5 years because of your previous convictions. I agree that is an appropriate start point. For your guilty plea I will deduct one-quarter of sentence leaves a balance of 45 months. I accept all the properties were returned to the complainant victims in this matter, for that I will deduct a further 6 months. Leaves a balance of 39 months. Because the defendants have not wasted the courts time today and the prosecutions time I will round that off and deduct a further 3 months leaving a balance of 3 years in prison.
13. On each count of burglary Faigame and Peni you are convicted and sentenced to 3 years in prison.
14. On the charge of intentional damage, this relates to the damage to the second victims house. That carries a 7 year maximum penalty. There is no indication of the cost of the damage but it seems to be relatively minimal. But it was committed in the course of your burglarising the house. Making the appropriate deductions for your guilty plea convicted and sentenced to 12 months on that charge, concurrent term.
15. On the next charge of theft from the first victims house of $6,100 worth of property. That carries a 7 year maximum penalty. Making the appropriate deductions for your guilty plea and factors in your favour convicted and sentenced to 2 years in prison.
16. In respect of the next charge of theft from the second victims properties of $285 worth of property. Again making the relevant deductions convicted and sentenced to 3 months in prison.
17. On the final charge of escape from prison carrying a 2 year maximum penalty. I note this is not your first escape. On that charge convicted and sentenced to 18 months in prison.
18. O fa’aiuga nei o moliaga uma nei Peni ma Faigame e tuli fa’atasi (all concurrent terms). O lona uiga e 3 tausaga le lua sala mo le talepe fale ma gaoi ia. Peita’i la o le 3 tausaga lea e tatau ona fa’aopoopo i le taimi lea e nofo sala ai i le falepuipui i le taimi nei. Ua lua malamalama i le fa’aiuga o le lua mataupu? (Defendant Faigame: queries penalties). Mo le mataupu lenei Faigame e le mafai ona tu’u atu le fa’amāmā avega lea e te talosaga mai ai. E tatau ona tuli ou taimi fa’aopoopo. Pau le fautuaga a le Fa’amasinoga a fa’apea o lou naunau lena aua le toe faia nei ituaiga mea fa’apea. Tuli fa’alelei le lua fa’asalaga. A lua magalo mai tua i le palola ona taumafai lea e su’e seisi olaga fou. Aua o le olaga lea e ola ai oulua, ia tailo po o le a le ituaiga fa’aupuga e fetaui ma lena olaga. Masalo o le fa’aupuga e fetaui i ai o le fa’amaimau taimi. Pau le iuga e mafai ona tu’u atu e le Fa’amasinoga o fa’aiuga fa’afalepuipui. Ma e le mafai ona tu’u atu se fa’aiuga māmā ona e tele lua solitulafono muamua. O le tulaga lena ua fa’apea ai le fa’aiuga a le Fa’amasinoga. Ma e toe molia mai foi oulua o le mea a lena e o’o iai. O le mea lena lea e fautua atu ai, tuli fa’alelei le lua taimi. Onosai e taui le tulafono i lua solitulafono lenei. A uma ona taumafai lea i se suiga. O lena e le’i taitai lua olaga. A’o le mea lea e fai o le waste of time oulua i le nonofo i le falepuipui. Ou te iloa foi e le’o oulua o ni tagata fa’avalevalea. Lua te atamamai, na’o tagata popoto e faia mea fa’apenei. Ia ae na e fa’aaoga sese le lua poto. Ae o le fa’aiuga lena o le tatou mataupu, e leai seisi fa’amāmā avega e mafai ona tu’u atu i le lua mataupu.
    

JUSTICE NELSON