Police v Cheung [2015] WSSC 103 (8 September 2015)

SUPREME COURT OF SAMOA
Police v Cheung [2015] WSSC 103

Case name:	Police v Cheung
Citation:	[2015] WSSC 103
Decision date:	8 September 2015
Parties:	POLICE v ASOLUA LAM CHEUNG male of Malie and Afega.
Hearing date(s):
File number(s):	S.2224/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 12 months supervision
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Burglary – theft – maximum penalty – pleaded guilty at the earliest opportunity to both charges – aggravating features relating to the offending - mitigating features relating to the accused as offender – home invasion – breach of trust – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013,s.174 (1) (a) s.161 s.165 (d)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: s2224/15

BETWEEN

P O L I C E

Prosecution

A N D

ASOLUA LAM CHEUNG male of Malie and Afega.

Accused

Counsel: L Sua-Mailo for prosecution

Accused in person

Sentence: 8 September 2015

S E N T E N C E

The charges

1. The accused Asolua Lam Cheung of Malie and Afega appears for sentence on one charge of burglary, contrary to s.174 (1) (a) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of one year imprisonment pursuant to s.165 (d). To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The complainant is a 63 year old male of Tuana’i. His wife is the biological mother of the accused and therefore the complainant is the accused’s stepfather. Between 31 May 2015 and 30 June 2015, the complainant and his wife locked their house and went to a family faalavelave at Manono. While they were away, the accused came to their house, removed two timbers on the side, and entered the house. He then stole from inside the house the following items of property: (a) one fishing spear valued at $180, (b) one slingshot valued at $18, (c) two bicycle tyres each valued at $50, (d) one fishing goggle valued at $30, (e) one torch valued at $65, (f) one air pump valued at $29, and (g) one head file valued at $25. The total value of these items of property was $447.
3. When the complainant and his wife returned from their family faalavelave at Manono, they noticed a hole on the side of their house and that two of the timbers were damaged. They immediately suspected that someone had entered their house while they were away. When they went inside their house, they discovered that the above-mentioned items of property were missing. They then contacted the police.

The accused

4. The accused is 23 years old. As already mentioned, the complainant is now living as husband and wife with the accused’s’ biological mother. As shown from the accused’s pre-sentence report, when his parents separated, the accused stayed with his father. He has a wife and two young children aged 3 years and 2 months. He is the sole breadwinner for his young family.
5. The accused finished school at Year 10. He then found employment with Yazaki, then with Frankie Supermarket, and then with Mataia Construction where he has been employed as a carpenter up to now.
6. The accused has already apologised to the complainant and his wife and his apology was accepted. This matter has therefore been settled and the complainant has asked the probation service to have the charges against the accused withdrawn. The accused is also a first offender and his paternal aunt told the probation service that the accused is a hardworking person who always strives for the betterment of his family.

Aggravating feature relating to the offending are as follows:

(a) Home invasion

7. This burglary involved home invasion, that is to say, breaking into a private dwelling house. It also involves violation of the privacy of a home. This is an aggravating feature relating to the offending.

(b) Value of the stolen properties

8. The total value of the stolen properties which was $447 is also an aggravating feature relating to the offending.

(c) Breach of trust

9. I would not consider that breach of trust is an aggravating feature relating to this offending. Evidently, the stolen properties belonged to the complainant and not his wife who is the mother of the accused. There was no close familial relationship or relationship of trust between the complainant and the accused. W hen the accused’s parents separated and the accused’s mother lived with the complainant, the accused stayed with his father. So there was no real familial relationship between the complainant and the accused giving rise to a relationship of trust. The fact that the accused may be described as a stepson of the complainant does not necessarily create a relationship of trust between the complainant and the accused.

The mitigating features relating to the accused as offender

(a) Previous good character

10. The oral testimonial given by the accused’s paternal aunt to the probation service suggests that the accused has some element of goodness in his character. He is also a first offender which tends to show good character though first offender status and previous good character are not exactly the same. This is a mitigating feature relating to the accused as offender.

(b) Apology

11. The apology by the accused to the complainant and his wife which was accepted is also a mitigating feature relating to the accused as offender.

(c) Guilty plea

12. The accused’s guilty plea to the charges against him at the earliest opportunity is an important mitigating feature relating to the accused as offender.

Discussion

13. Having regard to the aggravating features relating to the offending and the mitigating features relating to the accused as offender, I have decided to give the accused a second chance to redeem himself while he is still a young man with his future still very much before him. But I must warn the accused that if he commits this kind of offence again, then he may not be given another chance; instead he will be likely to go to prison. It is therefore in his best interests not to reoffend.

Result

14. The accused is convicted of the charges against him and sentenced to 12 months supervision.
    

CHIEF JUSTICE