Police v Tuaina [2014] WSSC 194 (17 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Tuaina [2014] WSSC 194

Case name:	Police v Tuaina
Citation:	[2014] WSSC 194
Decision date:	17 November 2014
Parties:	POLICE (Prosecution) FALEFATU TUAINA male of Lufilufi. (First Defendant) AND FINEASO FAASAVALU male of Papa Sataua and Samata-uta (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:	In respect of the charge of theft, you will be convicted and sentenced to 24 months in prison. In respect of the charge of burglary you will be convicted and sentenced to 18 months in prison, concurrent terms. Your remand in custody time awaiting sentence is to be deducted. It seems from what I have read that Fineaso went along with what Falefatu proposed and did. But he was still part of this law breaking exercise. Because of your lesser role Fineaso you qualify for a lesser penalty and also because you have a clean police record you get a greater deduction in respect of your background. In respect of the charge of theft you will be convicted and sentenced to 12 months in prison but in respect of the charge of burglary, you will receive the same sentence of 18 months in prison as Falefatu. Terms to be concurrent so that your total term will be 18 months. Remand in custody time to be deducted.
Representation:	L Sio and O Tagaloa for prosecution Defendants unrepresented
Catchwords:	breaking and entering – burglary and theft – previous conviction
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FALEFATU TUAINA male of Lufilufi.
First Defendant

AND:

FINEASO FAASAVALU male of Papa Sataua and Samata-uta.
Second Defendant

Counsel: L Sio and O Tagaloa for prosecution
Defendants unrepresented

Sentence: 17 November 2014

SENTENCE

1. The defendants in this case face charges of breaking and entering into the complainants house on 22 April this year and stealing from that house, from a strongbox in a bedroom, the sum of USD$5,000. When the summary of facts was read to them they initially admitted to breaking and entering the house without permission but denied they stole USD$5,000. They say the only took USD$340. The Court heard evidence on the matter and by its ruling dated 10 October 2014, found that it had been proven beyond reasonable doubt they stole if not exactly USD$5,000 a sum very close thereto.
2. At the time they did this the defendants were known to the complainant. Both of them were former employees of the complainant. They were familiar with the property in question and where the money was kept in the strongbox of the complainant in his bedroom. They used this knowledge to enter the house, unlock the strongbox and take the money. The complainant in his evidence said he was very disappointed that they had done this because he had treated the defendants especially the defendant Falefatu Tuaina like his own sons.
3. The defendants have apologised to the complainant but the pre-sentence report and victim impact report indicates that this apology has not really been accepted by the complainant.
4. The offence for which they are charged carries a maximum penalty at law of 10 years imprisonment for the burglary and 7 years for the theft. The prosecution have suggested in their memorandum of sentencing that the starting point for the burglary charge should be 3 years in prison reflecting the fact that Falefatu has a previous conviction already in 2006 for theft. I agree with the prosecution that is an appropriate start point for sentence.
5. I will deal firstly with Falefatu who appears to be the primary lead offender in this theft. From the start point of 3 years in prison you are entitled to certain deductions which I will now give effect to. In respect of your guilty plea which has saved some of the courts time and which indicates your willingness to take responsibility for what you did I will deduct 6 months from the start point for sentence, leaves a balance of 30 months.
6. You are not a first offender, you have a previous conviction for theft in 2006. But that was about 8 years ago and I note you were only fined for that matter which indicates it was not a significant theft. I will then give you some credit for the fact that for the last 8 years you have not re-offended and for matters referred to in your pre-sentence report on your background of service to your family which is supported by a reference from your faifeau. For those matters I deduct 3 months from the balance of sentence, leaves 27 months in prison. I note you have made an apology and even though that has not been accepted by the complainant you will get some credit for making the apology in any event. In respect of that matter a further 3 months will be deducted from your balance, leaves 24 months.
7. In respect of the charge of theft, you will be convicted and sentenced to 24 months in prison.
8. In respect of the charge of burglary you will be convicted and sentenced to 18 months in prison, concurrent terms. Your remand in custody time awaiting sentence is to be deducted.
9. It seems from what I have read that Fineaso went along with what Falefatu proposed and did. But he was still part of this law breaking exercise. Because of your lesser role Fineaso you qualify for a lesser penalty and also because you have a clean police record you get a greater deduction in respect of your background.
10. In respect of the charge of theft you will be convicted and sentenced to 12 months in prison but in respect of the charge of burglary, you will receive the same sentence of 18 months in prison as Falefatu. Terms to be concurrent so that your total term will be 18 months. Remand in custody time to be deducted.
    

JUSTICE NELSON