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Police v Tevaga [2015] WSSC 196 (24 December 2015)
SUPREME COURT OF SAMOA
Police v Tevaga [2015] WSSC 196
Case name: | Police v Tevaga |
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Citation: | |
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Decision date: | 24 December 2015 |
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Parties: | POLICE v ATONIO PINETUAOI TEVAGA male of Samalaeulu and Lano. |
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Hearing date(s): |
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File number(s): | S3593/15 |
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Jurisdiction: | CRIMINAL |
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Place of delivery: | Supreme Court of Samoa, Mulinuu |
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Judge(s): | Chief Justice Sapolu |
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On appeal from: |
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Order: | - Convicted and sentenced to 12 months imprisonment |
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Representation: | F Lagaaia for prosecution Accused in person |
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Catchwords: | ordinary theft – theft in a special relationship – maximum penalty – aggravating features relating to the offending
– breach of trust – impact of the offending – attitude of the accused – mitigating features – starting
point for sentence |
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Words and phrases: |
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Legislation cited: | |
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Cases cited: |
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Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
FILE NO: S3593/15
BETWEEN
P O L I C E
Prosecution
A N D
ATONIO PINETUAOI TEVAGA male of Samalaeulu and Lano.
Accused
Counsel:
F Lagaia for prosecution
Accused in person
Sentence: 24 December 2015
S E N T E N C E
The charges
- The accused Atonio Pinetuaoi Tevaga of Lano and Samalaeulu in Savaii stood trial on one charge of ordinary theft under s.161 of the
Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment under s.165 (b) and one charge of theft in a special relationship under s.162
of the Act which carries a maximum penalty of 10 years under s.165 (a). In my judgment delivered on 16 November 2015, I found the
charge of ordinary theft under s.161 to have been proved in part in relation to some of the properties alleged to have been stolen
by the accused but dismissed the charge of theft in a special relationship. The accused now appears for sentence on the charge of
ordinary theft as proved.
The offending
- On a Saturday night in April 2014, the complainant’s son and other boys of the village of Samalaeulu went for a ride in the
complainant’s van. On the following morning the van was found with its boot stuck on a pile of rocks near the boundary between
Samalaeulu and the village of Mauga. The evidence given by the prosecution witnesses which I decided to accept is that only one big
light, the door of the boot, and the rear windscreen of the boot of the van were damaged. There was no damage to the front or the
sides of the van. Apart from the big light, the other lights of the van were also in good condition.
- About two or three weeks later, the accused who is a mechanic drove the van from the complainant’s place at Samalaeulu to his
place at Lano to repair the damage to the van. After about three months, the complainant went to the accused’s place to see
whether the repairs to the boot of his van had been completed. He was shocked to find that the undamaged doors and the other undamaged
parts of his van as well as the damaged boot had all been removed even though only the boot was damaged. The complainant said he
found his van to be only a ‘shell’ of a vehicle as the accused had removed many parts including undamaged parts. He
then gave $200 to the accused in order for the accused to carry out the repairs to his van.
- Two months later, the complainant again visited the accused and found that no repairs had yet been done to his van. He then told
the accused that he wanted to use his van for White Sunday in October and paid $1,500 to the accused to expedite the repairs to his
van. However, after White Sunday no repairs had been done to the van. Then one day the complainant’s wife went to the accused
and asked the accused to return the missing parts of her husband’s van but the accused told her he had thrown away those parts
except for the floor cover and to tell her husband to come and get the floor cover.
- Then about a month after White Sunday, the complainant went back to the accused’s place. He found that there were still no
repairs done to his van and many parts were still missing. The complainant then had his van towed away after the doors were put back
inside the van. The parts that were still missing from the van were the stereo, the fuel pump valued at $465, two parking lights
valued at $300 each, two sliding door rollers valued at $95 each, one floor cover valued at $150 and two body kits valued at $300
each. It was only after the accused was arrested and questioned by the police that he told the police that the missing parts of the
complainant’s van were at his house at Lano. The police then went to the accused’s house and recovered only the stereo,
one body kit, the floor cover, one parking light, and the two sliding doors rollers. Up to now, the fuel pump and one of the body
kits are still missing.
- The prosecution has charged the accused with the theft of the fuel pump, two parking lights, two sliding door rollers, two body kits,
and one floor cover. The accused is not charged with the theft of the stereo. I found that the prosecution has proved beyond reasonable
doubt the charge of theft in respect of the spare parts for which has been charged except for the floor cover. I was not satisfied
that the prosecution had proved beyond reasonable doubt the alleged theft of the floor cover because the accused had told the complainant’s
wife to tell her husband to come and get the floor cover. In other words, I was not satisfied that the accused had an intention
to deprive the complainant permanently of the floor cover.
- The total value of the missing parts of the complainant’s van which I found to have been proved by the prosecution as stolen
by the accused was $1,855.
The complainant
- The complainant is a 54 year old male of Samalaeulu. He is a tattooist by profession and he needs his van for his work and for his
family. As a consequence of the accused’s actions, he was without his van for several months which made him sad, angry, frustrated,
and mentally distressed. The accused has also shown no sign of remorse towards the complainant and there has been no reconciliation.
Furthermore, because of the accused’s actions, it has cost the complainant about $10,000 to pay a second mechanic to fix his
van. This is on top of the $1,700 the complainant had paid to the accused. However, I do not accept that the complainant has no
prospect of being able to recover his money from the accused. He may be able to recover his money by civil action. This will, however,
cost the complainant more time and money.
- The complainant’s family was also affected because they needed the van for some of their family chores.
The accused
- The accused is a mechanic by profession and earns about $600 a week. He is 42 years of age and is married with three children.
He is a first offender and the testimonials from the pastor of his church and the pulenuu of his village show that he had been a
person of good character prior to the commission of this offence.
The aggravating features relating to the offending
- There are several aggravating features of this offending which are as follows:
(a) Breach of trust
- The accused as a mechanic took the complainant’s van to be repaired. The complainant trusted and relied on him to repair his
van. However, for several months from April 2014 to October 2014 the accused did no repairs to the van. Even after he was paid
$200 and then $1,500 by the complainant, he still did no repairs to the complainant’s van. Instead, he stole some undamaged
parts of the complainant’s van. This is a clear breach by the accused of the complainant’s trust in him.
(b) Impact of the offending
- The psychological and financial impact of the offending on the complainant is another aggravating feature relating to the offending.
The complainant became sad, angry, frustrated and distressed by the actions of the accused in not fixing his van for several months
but dishonestly removing several undamaged parts of the van and kept them for himself. In addition, as a result of the accused’s
actions, the complainant has had to pay $10,000 to a second mechanic to fix his van.
- Not only was the complainant a victim of the actions by the accused but so was his family who depended on the use of the van for
travel and family chores.
(c) Attitude of accused
- The attitude of the accused to the complainant and to the complainant’s wife was one of arrogance which further hurt the feelings
of the complainant and his wife.
(d) Value of the stolen parts
- The value of $1,855 of the undamaged parts of the complainant’s van stolen by the accused is also an aggravating feature of
this offending. Even though some of those parts were returned to the complainant, that was only after the police had arrested and
questioned the accused. As a result of the unauthorised removal by the accused of those parts from the complainant’s van,
the complainant has had to pay more than necessary to a second mechanic to fix his van. Up to now, the fuel pump and one of the
body kits of the van have not been recovered from the accused.
The mitigating features relating to the accused as offender
- The only mitigating feature relating to the accused as offender is his previous good character as shown from the testimonials from
his church pastor and village pulenuu. The prosecution has not shown whether the accused has any previous conviction.
Discussion
- In passing sentence, I am conscious that this is the first time this Court has had to pass sentence in this type of case. So in
a sense this is a test case. I am also conscious of the apparent prevalence of this type of offending by mechanics around the country.
Having considered the aggravating features relating to the offending and the maximum penalty of 7 years imprisonment provided for
this type of offence, I will take 15 months as the starting point for sentence. I will deduct 3 months for previous good character.
That leaves 12 months.
The result
- The accused is convicted and sentenced to 12 months imprisonment.
CHIEF JUSTICE
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