Police v Iosefatu [2015] WSSC 250 (18 May 2015)

SUPREME COURT OF SAMOA
Police v Iosefatu [2015] WSSC 250

Case name:	Police v Iosefatu
Citation:	[2015] WSSC 250
Decision date:	18 May 2015
Parties:	Police (prosecution) v Maligi aka Morriez Iosefatu, male of Nofoalii, Saoluafata and Tafaigata Prison.
Hearing date(s):
File number(s):	S3787/14, S3788/14, S3677/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	In respect of all three charges, you are convicted and in respect of the charges of burglary and theft, you are sentenced to 2 years and 2 months imprisonment. On the charge of escaping, you are sentenced to 10 months but that is to be served concurrently. Time served is to be deducted from the end point.
Representation:	F Lagaaia and O Tagaloa for prosecution Defendant in person
Catchwords:	Escaping from custody – burglary - theft
Words and phrases:	Targeted burglary – repeat offender
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

Maligi aka Morriez Iosefatu male of Nofoalii, Saoluafata and Tafaigata Prison
Defendant

Counsel: F Lagaaia and O Tagaloa for prosecution

Defendant in person

Sentence: 18 May 2015

Oral Sentence of Justice E M Aitken

1. Mr Iosefatu, you have pleaded guilty and appear for sentence now in respect of three charges; one of escaping from custody, one of burglary and one of theft.
2. Very briefly: you are serving a sentence of imprisonment at Tafaigata Prison when you escaped one morning when you were on daily work at the plantation. The victims live near to the prison property and you approached their house, entered it and took a number of items. You took a cellphone, bags, a Samoan passport, a flash-drive and a small amount of cash, total value of $469.00. As you were leaving the property, the woman who lived in the house saw you and was able to contact the Police and you were found later that afternoon back in the prison compound. The property has all been recovered.
3. You told the Probation Officer really that you had planned this offending so it is what I would call a ‘targeted burglary’ and it was also very, what I would call audacious or bold behaviour: you escape, you commit the burglary, you go back to prison and you start using the phone you took from the property.
4. You must go to prison again for this offending, Mr Iosefatu and that means I must identify the starting point of your sentence. This is a burglary of a residential property during the day. There are no particular aggravating factors when one looks solely at the offending and I record that all the property has been returned.
5. Having regard to the previous authorities and in particular to the decision in respect of your last burglary when you were sentenced by the Chief Justice, I fix the starting point at 10 months.
6. However, that sentence must be increased when I have regard to the aggravating factors that attach to you personally and I am referring, Mr Iosefatu to your prior convictions. This is your thirteenth conviction for burglary; you are very much a repeat offender in that regard and the Police seek a very significant uplift in light of that prior offending but I remind myself that the purpose of the uplift is not to re-sentence you for that prior conduct. The aggravating factor of the prior convictions – what makes the situation worse – is the fact that you are a repeat offender; you have not been deterred or put off from this sort of offending despite these terms of imprisonment; and there is obviously a need to continue to protect the public from you.
7. Those are matters of significant aggravation in my view but equally the Court should be mindful of balancing the impact of aggravating factors against the starting point – rarely will the uplift for aggravating factors exceed the starting point, but this particular case is one of those rare exceptions and I increase the sentence in light of those aggravating factors by 12 months. That takes the sentence to one of 22 months but it must be increased beyond that to reflect the escaping charge. (The 22 months reflecting the burglary and the theft charges.)
8. The starting point for the charge of escaping would be a sentence of 6 months but you have four prior offences for escaping from custody and, as I understand, it is was while you were serving the last sentence of imprisonment for escaping from custody that you were escaped on this occasion. Those factors require me to increase the sentence for escaping by a further 4 months, taking me to a starting point of 10 months for the escape charge.
9. Mr Iosefatu, in terms of the three charges the sentence of 32 months imprisonment is available to the Court but you are entitled to a reduction from that sentence for the following reasons.
10. I have already had regard to the aggravating personal factors, being your prior convictions. In terms of any matters of mitigation, I have read the probation report. There are no matters of mitigation that are contained in that report or in what you have said to me.
11. You are 27 years old and you have spent the last 8 years of your life in prison. You are a repeat offender in terms of burglary and of escaping. You claim to be remorseful and apologetic for what you have done but I do not accept that that is genuine in light of your repeat behaviour.
12. The only matter to your credit is the fact that you pleaded guilty to these charges, albeit on the morning of the hearing, and that permits me to reduce the sentence by a period of 6 months.
13. It follows that, in respect of all three charges, you are convicted and in respect of the charges of burglary and theft, you are sentenced to 2 years and 2 months imprisonment. On the charge of escaping, you are sentenced to 10 months but that is to be served concurrently. Time served is to be deducted from the end point.
14. Mr Iosefatu, you are going about spending most of your young adult life in prison. If you continue to escape and continue to re-offend while you are escaping you are destined to spend many, many more years in prison. If you truly are sorry for what you have done; if you truly want to be with your family, you need to change your behaviours

_____________________

JUSTICE E M AITKEN