Police v Nauer [2015] WSSC 269 (5 October 2015)

SUPREME COURT OF SAMOA
Police v Nauer [2015] WSSC 269

Case name:	Police v Nauer
Citation:	[2015] WSSC 269
Decision date:	05 October 2015
Parties:	Police (prosecution) v Hitler Nauer, male of Pesega and Vaitele fou
Hearing date(s):
File number(s):	S2110/15 and S2031/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	1.In respect of the charge of burglary in October of last year, you are convicted and ordered to come up for sentence if called upon within two years. In other words, I am going to hang that sentence over your head for the next two years. If you commit another offence you can also be sentenced with that burglary, if you don’t commit another offence in the next two years then there will be no other penalty. 2.On the charge of burglary and causing actual bodily harm in June of this year, you are convicted and sentenced now to a period of twelve months supervision. That supervision will be on the following conditions; Firstly, you will complete 80hours community work. Secondly, you will attend a drug and alcohol abuse program in the new year when there will be programs available through this Court Thirdly, you will comply with any other direction of your probation officer including any direction to live and work as directed.
Representation:	O Tagaloa for prosecution Defendant in person
Catchwords:	Burglary – causing actual bodily harm
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

Hitler Nauer, male of Pesega and Vaitele fou.
Defendant

Counsel: O Tagaloa for prosecution

Defendant in person

Sentence: 05 October 2015

Oral Sentence of Justice E M Aitken

1. Mr Nauer, you have pleaded guilty to three charges, the first is a burglary of a room at the Marist Club House back in October last year.
2. On that occasion you were so drunk that you have little or no memory of what happened but in the essence you were in the club house lawfully; the burglary was committed when you went into one of the rooms in the club house that was occupied by someone else. You entered without his permission, you damaged the door, you rummaged through his property but you did not take anything. That however is burglary and you accept that and have pleaded guilty to it.
3. Subsequent to that in June of this year, you also admitted a burglary and assault causing actual bodily harm. On this occasion it was a very different set of circumstances: your wife had not returned home that night, you had suspected that she was in a relationship with another man. You had confronted that man about it but he had denied it.
4. On this occasion you went over to that other man’s home about 8:30am in the morning. You tell me in Court today that you had been drinking and I accept that you were upset about what you suspected, because your wife had not come home. But in essence you entered the house of this other man with intent to commit a crime - on this occasion not the crime of theft but the crime of assault.
5. When you realized that the two were in fact in an intimate relationship, you picked up an empty jar of mayonnaise, you threw it at the man’s head, the jar smashed and he suffered a cut to the right side of his forehead. It clearly was not a significant cut because he was not hospitalized nor is there any evidence of stitches or anything else. Having assaulted him you ran out of the house, he followed you, you had a rental car there, he hurled rocks at you and cause quite significant amount of damage to the car, he was prosecuted for intentional damage and you were prosecuted for burglary and assault.
6. You are 24 years old, you have two sons, they now live with their mother and you and she have separated for obvious reasons. You live at your brother’s rental property and you earn your living by growing vegetables on the plantation and selling them. Your brother is in Court to support you today.
7. In terms of the burglaries: in respect of the Marist Club House, I would call that opportunistic drunken burglary very much at the lower end of the scale given that you were already lawfully in the building, the burglary being committed when you entered a private room. In respect of the burglary in June of this year, I would categorize that as emotional and rather an irrational behavior on becoming aware that what you suspected in relation to your wife was in fact true.
8. For those reasons Mr Nauer, despite the fact that you are before the Court for two burglaries, I will not on this occasion send you to prison. I will deal with you in a way that I hope will reduce the risk of you committing another offence - because I need to make it very clear: you will have now two convictions for burglary and one for causing actual bodily harm. If you were to commit a third burglary, then it would be almost impossible for the Court to avoid a sentence of imprisonment. So you need to see this as a last chance of remaining in the community. Continue to offend and you will end up in prison
9. In respect of the charge of burglary in October of last year, you are convicted and ordered to come up for sentence if called upon within two years. In other words, I am going to hang that sentence over your head for the next two years. If you commit another offence you can also be sentenced with that burglary, if you don’t commit another offence in the next two years then there will be no other penalty.
10. On the charge of burglary and causing actual bodily harm in June of this year, you are convicted and sentenced now to a period of twelve months supervision. That supervision will be on the following conditions;

1. Firstly, you will complete 80hours community work.
2. Secondly, you will attend a drug and alcohol abuse program in the new year when there will be programs available through this Court

100. Thirdly, you will comply with any other direction of your probation officer including any direction to live and work as directed.

11. It is very important that you comply with that sentence of supervision. If you breach that sentence then you will be prosecuted for breach and the sentence can be cancelled and can be re-sentenced. It is a final opportunity Mr Nauer to remain in the community, so make the most of it for your sake and for the sake of your children.

_____________________

JUSTICE E M AITKEN