Police v Chen [2015] WSSC 226 (13 March 2015)

IN THE SUPREME COURT OF SAMOA
Police v Chen[2015] WSSC 226

Case name:	Police v Chen
Citation:	[2015] WSSC 226
Decision date:	13 March 2015
Parties:	POLICE (Prosecution) YUAN CHEN, male of Vaitele-tai. (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:	The defendants punishment will therefore be in two parts. Firstly he must pay police costs $500, court costs $300, probation office costs $200; total sum of $1,000.00 to be paid by 4:00 pm today in default 6 months in prison. Secondly he will provide at the times and on the days designated by the probation office five hundred (500) free lunches for participants of the various training and rehab programs run by the probation office. Each lunch plate is to be of a value not exceeding $5.00 excluding the cost of the plate and is to be of a reasonable quality and standard acceptable to the probation office. They are to be provided free of charge and delivered to the probation office by the defendant at his own cost and expense.
Representation:	F Lagaaia for prosecution P Mulitalo for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

YUAN CHEN, male of Vaitele-tai.
Defendant

Counsel: F Lagaaia for prosecution
P Mulitalo for defendant

Sentence: 13 March 2015

SENTENCE

1. This defendant has pleaded guilty to a charge that he did receive one hundred (100) roofing irons to a total value of $11,000.00 knowing the said properties were stolen goods belonging to a local hardware company. The properties were stolen from the complainant company by a number of its employees who have all pleaded guilty and are awaiting sentence. As this defendant is only involved in relation to one of a number of those thefts he can properly be sentenced separately.
2. The police summary of facts which seems to be accepted by the defendant through his counsel indicates that two of the three employees of the complainant company entered into an agreement with the defendant. Whereby the defendant would buy from them the roofing irons at the discounted price of $6,500.00. The goods were delivered to the defendants premises at Vaitele-fou and stored in his container. The defendant told the probation office he was surprised when the police showed up looking for the materials. He showed it to them and they took possession of the roofing iron and returned all of it to the complainant company. He also complained that the police took extra items from his container not involved in this transaction but that is a matter for him to pursue with the police authorities.
3. As a result of all these the defendant was charged and has pleaded guilty to one count of receiving stolen goods which carries a maximum penalty at law of 7 years in prison. I observe that while servants and other primary offenders are vigorously prosecuted by the police surprisingly receiving is not a charge that often comes before this court. In the few times it has the court has imposed non-custodial sentences. But that is not to say that this will always be the case.
4. The sentence in every criminal case revolves around its particular facts and the circumstances of the offender in question. If a penalty of imprisonment is necessary and appropriate the court will not hesitate to impose it.
5. The aggravating factors here include the fact that the offending was part of a pre-meditated plan and deception. And the fact that the items in question are of significant value. This is not a case of receiving a stolen chocolate bar or “tau talo” (bunch of taro).
6. There are obvious factors in the defendants favour in mitigation. These have been referred to by defence counsel in his written submissions. These includes the defendants guilty plea which has saved the courts time and the States limited resources; the defendant numerous apologies and its acceptance by the complainant company as evidenced by the companys letter attached to counsels submission; the defendants expressed remorse for his offending; the complainants company plea for leniency; the fact that all the stolen goods have been recovered and returned to the complainant; the defendants co-operation with the police and the company in its investigations; the good background of service of the defendant to his family and to the community as outlined in the pre-sentence report; the various references as to his character; and his clean criminal record. I understand and accept all those.
7. But there is another large part of counsels submission which I can only term unusual and requiring a response. Counsel has also argued that the circumstances of this matter make it an “exceptional case.” In support of that are cited a manslaughter case where substantial provocation from the deceased was present. As well as a case of marijuana possession where the defendant was a breast feeding mother. In addition numerous New Zealand authorities bearing no resemblance to the situation at hand have been advanced. And then the extraordinary submission that in sentencing in this matter the court should take into account Samoas obligations under two United Nations Conventions. Convention on the Rights of the Child (“CRC”) and the Convention on Economic, Social and Cultural rights.
8. I have some passing familiarity with the Convention on the Rights of the Child. But I know of no convention on economic, social and cultural rights, only an International Covenant not a convention. It is a Covenant to which Samoa is not a party. Perhaps this mistaken reference is a reference to the International Covenant on Civil and Political Rights (“ICCPR”) to which Samoa is a party.
9. But whatever the case may be I can assure counsel that his client being a mature 51 year old male is not subject to the principles of either Convention. The fact that the defendant is a caregiver for his children does not trigger the application of the Conventions. If one wishes to fully understand the Conventions there is ample literature available on the internet which can be read. See for example ‘18 Candles: The CRC Reaches Majority’ a publication by the Institute International des droits de l’enfant or the IDE. The office of the United Nations High Commissioner for Human Rights (OHCHR) in Fiji and Geneva also has numerous publications and articles on the CRC and ICCPR.
10. It is a mistake to try to apply principles developed in sentencing in particular kinds of cases to all cases. Before such principles can be applied the circumstances of the case in hand must be carefully investigated so that the authorities cited are analogous to the matter before the court. It is in my respectful view too far a stretch to try and apply principles developed for and applicable to homicide and narcotics cases to a case of receiving such as the one before the court. I make these comments in passing not as a criticism but in the hope that they may assist.
11. In respect of the defendants case as stated there are clear mitigating factors in his favour. Despite the imprisonment maximum penalty that the offence carries I note the prosecution have not sought a custodial sentence. Probably because there is no evidence unlike its sister offence of theft as a servant that this type of offending is prevalent.
12. Having due regard to the circumstances of your matter Mr Chen I consider a non-custodial penalty is warranted for your offending. And I note the defendant has sufficient means to meet monetary penalties. But Mr Chen I give you a very clear warning. Non custodial penalty is for today only, begins today ends today. Any more offending of this kind the defendant can look forward to the less comfortable surroundings of Tafaigata Prison. Ua malamalama oe i le tulaga lea Chen? E toe fai e oe mea faapea, falepuipui, kasi avanoa, mo le asō ma le asō lava.
13. The defendants penalty must reflect the seriousness of what he did. It must be sufficient to convey to him and to other potential receivers the deterrent message that if you do this sort of thing you will not be treated lightly. The defendants punishment will therefore be in two parts. Firstly he must pay police costs $500, court costs $300, probation office costs $200; total sum of $1,000.00 to be paid by 4:00 pm today in default 6 months in prison.
14. Secondly he will provide at the times and on the days designated by the probation office five hundred (500) free lunches for participants of the various training and rehab programs run by the probation office. Each lunch plate is to be of a value not exceeding $5.00 excluding the cost of the plate and is to be of a reasonable quality and standard acceptable to the probation office. They are to be provided free of charge and delivered to the probation office by the defendant at his own cost and expense. The defendant and his counsel may wish to discuss this part of the sentence further with the probation officer who I see is in court today. Do we have any question as to the penalty Mr Prosecutor? (no your honour). Mr Mulitalo? (No thank you your honour).
    

JUSTICE NELSON