Police v Finau [2014] WSSC 65 (5 November 2014)

SUPREME COURT OF SAMOA

Police v Finau [2014] WSSC 65

Case name: Police v Finau

Citation: [2014] WSSC 65

Decision date: 5 November 2014

Parties:
POLICE prosecution, AND EPATI FINAU male of Vaigaga and Faleseela, Lefaga accused.

Hearing date(s):

File number(s): S2786/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
Accused in person

Catchwords:
Theft, aggravating and mitigating features, sentence

Words and phrases:

Legislation cited:
Crimes Act 2013s.16, s.165

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2786/14

BETWEEN

P O L I C E
Prosecution

A N D

EPATI FINAU male of Vaigaga and Safaatoa, Lefaga.
Accused

Counsel
L Su’a-Mailo for prosecution
Accused in person

Sentence: 5 November 2014

S E N T E N C E

The charge

1. The accused Epati Finau, a 28 year old male of Vaigaga and Safaatoa, Lefaga, appears for sentence on the charge of ordinary theft, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b) of the Act because the total value of the properties he is alleged to have stolen exceeded $1,000. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

2. The complainant is a 38 year old female of China and New Zealand. At the time of the offending, she was visiting Samoa on business purposes. On Saturday morning 6 September 2014, she wanted something to eat. So she drove around Apia, presumably in a rental car, looking for a restaurant. She stopped at the Treasure Garden at Fugalei which is a Chinese restaurant but it was closed. She then saw a man standing in front of the Treasure Garden. This man is the accused in these proceedings. The complainant being new to Samoa asked the accused for help in locating the Seafood Gourmet restaurant. The accused agreed to help and got into the complainant’s car and together they drove to the Seafood Gourmet at Matautu-tai.
3. After showing the complainant the Seafood Gourmet restaurant, the accused told the complainant that he will take a taxi back to the Treasure Garden. However, the complainant insisted that she will drop him off. So they left in the complainant’s car. The accused was supposed to direct the way back to the Treasure Garden.
4. As it happened, the complainant and the accused ended up at Lotopa and when they came to a bushy area at Lotopa, the accused asked the complainant to stop. Following that, the accused told the complainant that his cousin was not at home but to drop him off at the place of another relative not too far away. They then took another road until the accused again asked the complainant to stop. The accused then quickly opened the door on his side, grabbed the complainant’s handbag, and ran off down a nearby creek. The complainant chased after him but the accused got away. The complainant then sought the help of nearby residents and the matter was reported to the police who were able to find the accused two days later and arrested him.
5. The complainant’s handbag stolen by the accused contained: (a) SAT$470, (b) NZ$30 (SAT$53.00), (c) one New Zealand passport valued at SAT$200, (d) one Samsung galaxy ipad valued at SAT$1,500, (e) one New Zealand driver’s licence valued at SAT$200, (f) one metal water bottle valued at SAT$20, and (g) one pair of sunglasses valued at SAT$50. The total value of these properties including the monies was SAT$2,493.
6. The accused, as it appears from the pre-sentence report, told the probation service that he used the monies for his personal needs but he handed over to the police all the other items of property which were inside the complainant’s handbag including the handbag.

The accused

7. As already mentioned, the accused is 28 years old. The pre-sentence report shows that he was taken by his maternal aunt while he was young to New Zealand where he spent more than fifteen years. He attended school in New Zealand and successfully completed Form 7. He then found employment in New Zealand. The accused also has a wife in New Zealand and they have four children. In 2010, the accused returned to Samoa leaving his wife and children in New Zealand. He says he came back to Samoa to look after his parents.
8. In 2010 after the accused returned to Samoa, he was convicted of theft. He was given a suspended sentence and ordered to perform 100 hours of community service. At the time of the present offending, the accused was employed as a taxidriver.
9. It also appears from the pre-sentence report that the accused’s mother told the probation service that her son is a responsible, trustworthy, helpful, and a loving person and his present offending is out of character. I do not accept this testimonial from the accused’s mother. The accused has a previous conviction for theft in 2010. He had also left his wife and four children who must still be quite young in New Zealand and returned to Samoa in 2010. His first responsibility should be to his wife and the welfare of his young children.
10. The accused also told the probation service that he had apologised to the complainant at the police station when he was apprehended by the police. It is not clear whether such an apology was accepted by the complainant who has already left Samoa.

The complainant

11. As already mentioned, the complainant is a 38 year old female of China and New Zealand. She had visited Samoa on business purposes. It would appear from the prosecution’s summary of facts that this must have been her first visit to Apia because she did not know the location of the Seafood Gourmet restaurant at Matautu-tai or how to get to the Treasure Garden restaurant at Fugalei when she was to drop off the accused at that restaurant. She was clearly vulnerable and was deceived by the accused who directed her to Lotopa which is some distance from the Treasure Garden.
12. There is no victim impact assessment report on the complainant. Probably, this is because she has already left Samoa.

The aggravating and mitigating features

13. In relation to the accused’s offending, there are several aggravating features. The complainant being a foreigner not familiar with Apia was in a vulnerable position. This must have been clear to the accused when the complainant asked him in front of the Treasure Garden restaurant at Fugalei for his help in locating the Seafood Gourmet restaurant which is at Matautu-tai and then when he misled the complainant into driving him to Lotopa on the pretext that he was to be dropped off at the Treasure Garden at Fugalei. The complainant must also have placed her trust in the accused who had helped her by showing her the location of the Seafood Gourmet and wanted to return the good favour by taking the accused back to the Treasure Garden. The accused must have been aware of the trust the complainant was placing in him. However, he took advantage of that trust by deceiving the complainant into driving him to Lotopa where he further deceived her to drop him off at a cousin’s home and then at a relative’s home before he stole her handbag and ran away with it. Furthermore, the conduct and the actions of the accused clearly show that there was a high degree of pre-meditation on his part to steal from the complainant. The complainant must also have suffered emotional distress as a result of the accused’s actions even though there is no victim impact assessment report.
14. I have also decided to accept the submission of counsel for the prosecution that the fact that the complainant was a foreigner travelling to this country on business purposes should be treated as an aggravating feature in relation to the offending. Samoa is economically a developing country. Foreign revenue brought into Samoa by tourists and other foreigners who visit this country is a major source of revenue for this country. It would be in the public interest to protect and encourage such a source of revenue. I do not consider that this would be in essence discrimination on the ground of residential status between foreigners and locals. But even if it is arguable that it is such a discrimination, then it must be justified in the public interest because we are a developing country with few limited resources and foreign revenue from visiting tourists and other foreigners is a major contributor to the economy of the country.
15. The total value of $2,493 of the items of property stolen by the accused is also an aggravating feature in relation to the offending.
16. On the other hand, I consider the non-monetary stolen items of property which were returned by the accused to the police as a mitigating feature of the offending. However, I bear in mind that the accused did not voluntarily return those items of property. Those items of property were returned when the police found the accused.
17. In relation to the accused as offender, his previous conviction for theft in 2010 would be an aggravating feature but I would give limited weight to this. On the other hand, the mitigating features in relation to the accused as offender would be his apology to the complainant which should also carry limited weight and his plea of guilty at the earliest opportunity.

Discussion

18. Having regard to the aggravating and mitigating features relating to the offending, I will take 18 months as the starting point for sentence. I will add on one month for the previous conviction for theft in 2010. That increases the starting point to 19 months. I will then deduct one month for the accused’s apology to the complainant. That brings the starting point back to 18 months. I will further deduct 6 months for the early plea of guilty. That further decreases the starting point to 12 months.

The result

19. The accused is sentenced to 12 months imprisonment. Any time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.
    

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CHIEF JUSTICE