Police v Mataio [2015] WSSC 119 (8 April 2015)

THE SUPREME COURT OF SAMOA
Police v Mataio [2015] WSSC 119

Case name:	Police v Mataio
Citation:	[2015] WSSC 119
Decision date:	8 April 2015
Parties:	Police (prosecution) and Sione Mataio, male of Faleapuna & Satuimalufilufi (defendant)
Hearing date(s):	25 February 2015 and 13 March 2013
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	Three months imprisonment followed by 12 months supervision
Representation:	O Tagaloa for the Prosecution Defendant appears in Person
Catchwords:	burglary – theft – intentional damage – pre-meditation
Words and phrases:
Legislation cited:
Cases cited:	Police v Ajawas [2013] WSSC 49 Police v Iosefatu [2013] WSSC 76 R v Churchward [2011] NZCA 531
Summary of decision:

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SIONE MATAIO
male of Faleapuna and Satuimalufilufi
Defendant

Counsel:
O Tagaloa for the Prosecution
Defendant appears in Person

Hearing: 25 February 2015 and 13 March 2013

Ruling: 13 March 2015

Sentence: 8 April 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Sione, you have been found guilty on a charge of burglary, theft and a charge of intentional damage and, having heard the facts and given my decision, I summarise the facts now before I sentence you.
2. In the early hours of the morning of 1 October last year, you went to the Le Vasa Resort intending to commit these offences. You had previously worked there and you knew the layout of the Resort. I am also satisfied you were telling the truth when you told the Interviewing Sergeant that earlier in that day you had met the man who was in fact staying in Villa Number 6. He gave you AUD$50.00; you asked him about where he was staying and you specifically targeted his villa at the Resort that night. To commit this offence, you persuaded or probably compelled – in other words, threatened or used force to persuade – the young Pelesala to come with you. He is 13 years old and he and two older boys went with you to the Resort but only you and Pelesala actually went onto the verandah of the fale. You had torn the screens; you removed the louvers; and you lifted Pelesala in and told him to retrieve the property. The family were in that fale, asleep at the time and I found this to have occurred somewhere before 3 o’clock in the morning. Pelesala took, at your direction, the victim’s backpack, a purse, a watch, a telephone and a torch.
3. At the hearing, no evidence of the value of those items was given and I found you guilty of theft amounting to property of less than ST$500.00. I observe (but I do not take this into account at fixing the penalty) that it is highly likely that the value of the property was well in excess of ST$500.00. Indeed, it now is clear from the Victim Impact Statement (that is admissible as part of this process) that the goods were worth probably in excess of ST$6,000.
4. Pelesala gave the goods to you; he and the other boys left and you were the one who retained the property and none of that property has ever been recovered – so you are here for sentence today for burglary at night of a fale at a resort where you used to work, of a tourist you had previously met. So this was a planned and targeted burglary while the victim and his wife were asleep in the fale with their bags packed as they were due to leave for the airport at 3 o’clock that morning. You also used a 13 year old boy to assist you in committing this offence.
5. There has been obviously an impact of your offending, not just on the owner of the property, who was here in Samoa to attend the wedding of his daughter, but he woke up ready to go to the airport to find that all of his property had been stolen. And there has been a huge impact on the Le Vasa Resort because the victim, the person who owned the property has put a note on the Trip Advisor website saying how terrible this was and the owner of the Resort is sure that that will cause other tourists to choose not to come to Le Vasa.
6. Now in terms of fixing the starting point for this offending, I have had regard to a number of decisions of the Supreme Court of Samoa, in particular, those given by the Chief Justice. As His Honour makes clear in the Police v Ajawas [2013] WSSC 49, the Supreme Court here has adopted the categories of burglary as set out by the New Zealand Courts and articulated in R v Senior. You are clearly a first time burglar and His Honour has noted, in this and many other decisions, that first time burglars are usually given a non custodial sentence. In Police v Ajawas, the Chief Justice adopted a starting point of 12 months; that was an aggravated burglary where the offender was armed with a machete but a daytime burglary with nobody present in the house. In Police v Iosefatu [2013] WSSC 76, again the Chief Justice addressed the issue of burglary. This was, in some ways, similar to your behaviour where the offender broke into a convent at night, having cut the screens before removing the louvers. He took property and food from the convent but fell asleep and was found there the next morning, holding a knife. The property, as best I understand, was all recovered and the Chief Justice fixed a starting point of 10 months.
7. The Attorney General, on behalf of the Police, seeks a starting point, in this particular case or your case, of 2 years imprisonment and has cited a number of authorities. The most similar in terms of conduct being that of Police v Matulino: burglary of a tourist accommodation where a significant amount of property was taken. The starting point must have been in excess of 5 years for Her Honour Justice Malosi to arrive at a 4 year, 3 month final sentence after a guilty plea but that seems to me to be very different offending by a 36 year old man with prior convictions for burglary. I find the decision in the Police v Iosefatu to be the most similar but your behaviour was more serious in that there was clearly the aspect of premeditation, the property was not returned and it has had a significant impact on the business of the Resort but you were not obviously in possession of any weapon. I fix the starting point for your offending, Sione, at 12 months imprisonment.
8. You did not plead guilty to this offending; you have not apologised; you do not express remorse; on the contrary, you maintain your innocence – so all of those factors that would permit me to reduce your sentence are not available here. The single significant factor that permits me to reduce your sentence is your age; you are 19 years old. You have no prior convictions; you live with your family and I have a letter from the Mayor and the Pastor of your village, asking for leniency and describing you in good terms. You are not in paid employment at the moment; you are working for the family on the plantation and in the Probation Report there is a reference also to the possibility of a second chance although no recommendation is made in these particular circumstances.
9. I refer to the New Zealand authority of R v Churchward [2011] NZCA 531 where the Court of Appeal identifies a number of factors which the Court should have regard to in assessing the culpability and the appropriate penalty for young offenders (see [76] – [92]).
10. Clearly, youth is a factor which this Court has regard. Now while in this case this was not ‘spur of the moment’ offending, given your age it is highly likely that you failed to appreciate the seriousness of what you were doing and in light of your age and the good references from the Pastor and the Mayor, I do have regard to the impact of a prison term on someone so young, and at the same time the need for rehabilitation to be a primary focus of sentencing young adult offenders.
11. In my view, I can, on a principled basis, reduce the sentence by as much as 70%, which means a final sentence of 3 months imprisonment. That is a short term of imprisonment, Sione, but given the need for deterrence where this is serious offending that has a significant impact on the livelihood of particularly the resort owners, in my view, a sentence of imprisonment in the circumstances is the only available penalty, so it will be a sentence of 3 months imprisonment to be followed by 12 months of supervision, on the condition that you comply with all of the directions of your Probation Officer.
    

_____________________
JUSTICE E M AITKEN