Police v Nikolao [2015] WSSC 43 (15 April 2015)

SUPREME COURT OF SAMOA
Police v Nikolao [2015] WSSC 43

Case name:	Police v Nikolao
Citation:	[2015] WSSC 43
Decision date:	15 April 2015
Parties:	POLICE (prosecution) v VAAFAGOTA NIKOLAO (accused)
Hearing date(s):
File number(s):	S403/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 14 months imprisonment.
Representation:	L Su’a-Mailo for prosecution Accused in person
Catchwords:	Aggravated burglary – maximum penalty – aggravating and mitigating features – home invasion – sentence – impact of the offending – previous conviction - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.175(1)
Cases cited:	Police v Iosefatu [2013] WSSC 76
Law texts/books	Adams on Criminal Law (1992) vol 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S403/15

BETWEEN

P O L I C E
Prosecution

A N D

VAA FAGOTA NIKOLAO male of Malie and Afega.
Accused

Counsel:
L Su’a-Mailo for prosecution
Accused in person

Sentence: 15 April 2015

S E N T E N C E

The charge

1. The accused Vaa Fagota Nikolao of Malie and Afega appears for sentence on one charge of aggravated burglary, contrary to s.175(1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment. To the charge, the accused pleaded guilty at the earliest opportunity.
2. What differentiates aggravated burglary from simple burglary is that with aggravated burglary, the offender is required to have a weapon with him or use anything as a weapon while committing a burglary whereas with simple burglary the offender is not required to have a weapon with him or use anything as a weapon.
3. The term “weapon” which is used for the offence of aggravated burglary in s.175 is not defined in the Act. However, in Police v Iosefatu [2013] WSSC 76, I referred to Adams on Criminal Law (1992) vol 1, CA 240A.04 where the learned authors, when discussing the meaning of the term “weapon” in the context of the offence of aggravated burglary, stated:
   • “The term ‘weapon’ is not defined in the Act... Presumably it will carry the same meaning as in the general law, and will therefore include both items which of themselves are designed or adapted for the purpose of causing injury to persons, as well as any other item which is intended to be used for such purpose. The position of items such as knives which may be used either as an ‘instrument’ for forcing entry or used as a weapon is unclear. It is possible that mere possession of such an item will be enough, but in view of the seriousness of the offence it is submitted that the prosecution should be obliged to prove at least an intention to use the item as a weapon if the situation should require it. However, compare R v Stores (1989) 89 Cr App R 26 in which it was held a household knife, not in itself an offensive weapon, came within the section because the accused admitted he carried it for self-defence against a gang who wished him ill”
4. On the basis of the opinion expressed in Adams on Criminal Law (1992) vol 1, CA 240A.04, the hammer and screwdriver used by the accused to gain entry into the complainant’s house would not be “weapons” for the purpose of the offence of aggravated burglary unless it is proved by the prosecution that the accused had an intention to use those items as weapons if the situation should require it: see Police v Iosefatu [2013] WSSC 76, para 7. There is nothing in the summary of facts to show that the accused was in possession of the hammer and screwdriver with the intention to use those items as weapons if the situation should require it, that is to say, to cause injury to someone or to defend himself against anyone. The accused must have known that the complainant’s house was unoccupied because the complainant was overseas and his step father was looking after the house for the complainant. The complainant’s house is also just across the road from the house of the accused’s mother and step father so that the accused would be aware of it. The accused therefore could not have gone to the complainant’s house with the hammer and the screwdriver with the intention to use those items as weapons to cause injury to someone or to defend himself against anyone for the accused must have known that the complainant’s house was unoccupied.
5. The proper charge in this case should therefore have been simple burglary under s.174 (1) instead of aggravated burglary under s.175 (1). Accordingly, I will proceed on the basis that the charge in this case is one of simple burglary. In so doing, I will treat the hammer and screwdriver as “instruments” in terms of s.174 (3) which were used by the accused to make possible his entry into the complainant’s house and probably his entry into the complainant’s bedroom: see the discussion on the meaning of “instrument” in Police v Iosefatu [2013] WSSC 76 paras 4-6, 8, 9.

The offending

6. The accused is the step son of the complainant’s brother in law. The complainant has a house at Salelologa in which she lives. About 20 August 2014, the complainant left Samoa for New Zealand for about five months and was due to arrive back on 17 January 2015. She left her house to her brother in law, the step father of the accused, to look after.
7. On 12 January 2015 at about 2pm in the afternoon, the complainant’s brother in law chased away the accused from their home for being disobedient. On the night of the same day before 9pm, the accused went to the house of the complainant with a hammer and a screwdriver and used those instruments to damage and open a window of the complainant’s house. He then entered the house and turned on the lights. The complainant’s brother in law who lives across the road from the complainant’s house saw the lights of the complainant’s house were on and suspected that someone was inside the house. At that time, a police vehicle drove by on the road and the complainant’s brother in law stopped the police vehicle and asked the police for assistance as he suspected that someone was inside the complainant’s house.
8. The police stopped their vehicle and drove to the complainant’s house. When they entered the house, they found the accused inside. The complainant’s brother in law also went with the police inside the house. He found the door to the complainant’s bedroom broken and there were holes on the kitchen wall. There was no such damage to the bedroom door or any holes on the kitchen wall when the complainant’s brother in law had checked the house earlier that same night. Such damage must have been caused afterwards by the accused using the hammer and screwdriver he had.
9. According to the pre-sentence report, the accused told the probation service that he used the hammer to burgle the complainant’s house as he was desperate for a bus fare and ferry fare to come to his family in Upolu. There is nothing in the pre-sentence report or summary of facts to show that the accused had an intention to use the hammer and the screwdriver as weapons to cause injury to someone or to defend himself against anyone..
10. Obviously, the accused entered the complainant’s house without authority with the intention to commit a crime therein. Such crime was intentional damage or theft or both. In entering the house, the accused used a hammer and screwdriver to try and achieve his purpose.

The accused

11. The accused is 19 years old. He has previous convictions for theft in 2012, robbery in 2013, burglary and theft in 2013, and escape from lawful custody in 2014. The pre-sentence report also mentions a previous conviction of the accused for assault in 2011 but such previous conviction is not mentioned in the prosecution’s previous conviction card. I will therefore not take such previous conviction for assault into account as no evidence was called by the prosecution to prove that conviction.
12. As it also appears from the pre-sentence report, the accused began his life at Afega in his father’s family. When his parents separated he remained with his father at Afega. He left primary school at Year 7 on his own accord. Two years later, his father enrolled him at the Punaoa Technical College where he completed two years in an automotive mechanical course. The accused then stayed at home and assisted his father with the family plantation as well as with village and church matters. In 2013, when he committed the robbery for which he was convicted, his father disowned him and chased him away from home. This was probably the time the accused went and lived with his mother and the complainant’s brother in law at Salelologa. The accused also consumes alcohol and smokes cigarette.
13. As earlier mentioned, the accused has pleaded guilty to the charge against him at the earliest opportunity

The victim

14. The complainant who is also the victim is 66 years old and, as mentioned, the accused is the step son of her brother in law. As a consequence of this offending, she does not feel safe in her own home. She is also worried that when she leaves Samoa again the accused might break into her house again as he lives with his mother and step father just across the road.
15. The victim impact report does not provide an estimate of how much it will cost to repair the damage caused by the accused to the victim’s house.

Aggravating features relating to the offending

(a) Home invasion

16. This offending involved home invasion of the complainant’s house. The accused must have known that the complainant’s house was unoccupied because his step father was looking after the house for the complainant while the complainant was in New Zealand. However, he still burgled the complainant’s house which was being looked after by his step father.

(b) Damage to the complainant’s house

17. The other aggravating feature of this offending is the damage to the complainant’s house. The accused not only damaged a window to get into the house but also the door to the complainant’s bedroom, most probably in order to enter the bedroom. Furthermore, are the holes on the wall of the kitchen. Whilst the motives for damaging the window and the bedroom door are clear, it is somewhat puzzling why the accused made holes on the wall of the kitchen.

(c) Use of hammer and screwdriver

18. The use by the accused of the hammer and screwdriver to damage the window of the complainant’s house and gain access into the house, to damage the door to the complainant’s bedroom, and to create holes on the wall of the complainant’s kitchen is another aggravating feature relating to the offending.

(d) Impact of the offending

19. The complainant no longer feels safe in her own home and is worried that when she leaves her house to go to New Zealand again the accused might break into her house again as he lives with his mother and step father just across the road.

Aggravating feature relating to the accused as offender

Previous convictions

20. The accused’s previous convictions are not an aggravating feature relating to the offending but is an aggravating feature relating to the accused as offender. Previous convictions relate to previous offendings with which the accused had been convicted in the past. They do not relate to the present offending for which the accused is now appearing for sentence. So the accused’s previous convictions in this case is not an aggravating feature relating to his present offending.
21. The relevance of previous convictions for sentencing purposes is that they go to show the character of the offender and assists in determining the punishment for an offender of that character for the particular offence committed. Previous convictions are therefore an aggravating feature personal to the accused as offender and not an aggravating feature relating to the offending.
22. In this case, the accused’s recent previous convictions for theft, robbery, burglary, and escape from lawful custody are an aggravating feature relating to the accused as offender.

Mitigating feature relating to the accused as offender

Guilty plea

23. There is no mitigating feature relating to the accused as offender except for his guilty plea to the charge against him at the earliest opportunity.

Discussion

24. When the accused was convicted on 27 September 2012 of theft, he was given a suspended sentence of 9 months. He was then 16 years old. That sentence must have expired on 26 June 2013. However, on 19 June 2013, before the term of the accused’s suspended sentence expired, the accused was convicted of robbery. He was then about 17 years old. He was placed under supervision for 2 years for the robbery conviction. The term of his supervision was to expire in June 2015. However, while under supervision the accused was again convicted on 24 October 2013 on four counts of burglary and theft. His term of supervision was revoked and he was sentenced to 9 months imprisonment. His sentence was served at the Olomanu rehabilitation facility for juvenile offenders. While serving that sentence, the accused escaped from the Olomanu rehabilitation facility and was convicted of escape from lawful custody and sentenced to one month imprisonment on 29 May 2014 to be cumulative on his sentence of 9 months imprisonment for the burglary and theft charges. That total sentence of 10 months imprisonment must have been completed in August 2014. The accused is now appearing before the Court again for a burglary he committed on 12 January 2015.
25. It is clear that past attempts to rehabilitate the accused have not worked. He has continued to re-offend and some of his re-offending occurred before the expiry of the sentence that had been imposed on him. The present offending was committed about 4½ months after he had served his sentences imposed in 2013 and 2014.
26. It is clear that the accused has not shown any genuine remorse for his previous offences. He is a threat to the community.
27. In passing sentence in this case, I take into account the principles of denunciation, deterrence, and the need to hold the accused accountable for his offending. Having regard to those principles, and the aggravating features relating to the offending, I will take 15 months as the starting point for sentence. I will add on 6 months for previous convictions being an aggravating feature relating to the accused as offender. That increases the starting point to 21 months. I will deduct 1/3 or 7 months for the early guilty plea. That leaves 14 months.

Result

28. The accused is convicted and sentenced to 14 months imprisonment.

Honourable Chief Justice