Police v Tele'a [2015] WSSC 46 (28 April 2015)

SUPREME COURT OF SAMOA
Police v Tele’a [2015] WSSC 46

Case name:	Police v Tele’a
Citation:	[2015] WSSC 46
Decision date:	28 April 2015
Parties:	POLICE (prosecution) v MEFIPOSETA LUAGIA TELE’A (accused)
Hearing date(s):
File number(s):	S3419/14, S3431/14,S3531/14-S3540/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted of both charges. - The accused is sentenced to 12 months supervision pursuant to s.12 of the Community Justice Act 2008. He is also ordered to perform 100 hours of community work during his term of supervision pursuant to ss.12(3) and 19 of the Act.
Representation:	R Titi for prosecution T Peniamina for accused
Catchwords:	Burglary – theft – maximum penalty– early guilty plea – mitigating features –remorse –sentence
Words and phrases:	Clandestine nature of offending - previous good character
Legislation cited:	Crimes Act 2013, s.16, s.165 (b).
Cases cited:	R v Diack [1991] 1 NZLR 281 R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOS: S3419/14, S3431/14,
S3531/14-S3540/14

BETWEEN

P O L I C E
Prosecution

A N D

MEFIPOSETA LUAGIA TELE’A male of Neiafu, Savaii and Toamua.
Accused

Counsel:
R Titi for prosecution
T Peniamina for accused

Sentence: 28 April 2015

S E N T E N C E

The charges

1. The accused appears for sentence on one joint charge of burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and one joint charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 7 years imprisonment under s.165 (b). To both charges, the accused pleaded guilty at the earliest opportunity.
2. The accused is jointly charged with burglary and theft with other co-offenders. The Court has yet to deal with those co-offenders.

The offending

3. Two of the accused’s co-offenders were at the material time employed by the Hainan Construction at Vaitele-Fou. One of those co-offenders, who appears to have been the ringleader in this offending, approached a relative of the accused on 10 September 2014 at around 6pm if he and the accused would help him with his errand. It was not clear what that errand was. The accused’s relative then approached the accused who agreed to help. Subsequently, the accused and his relative were taken by the ringleader to his workplace which was the Hainan Construction site at Vaitele-Fou. This was around 7pm on 10 September 2014.
4. According to the prosecution’s summary of facts, when the accused and his co-offenders arrived at the compound of Hainan Construction they entered the compound. The accused then aided his co-offenders in stealing three hundred bags of cement with a total value of $6,570 by removing them from one of the containers in the company’s premises. They then delivered the cement to a third party from whom they received payment.
5. As it appears from the pre-sentence report, the accused told the probation service that the co-offender who was the ringleader told him that he needed his help to load his (ringleader’s) materials from his workplace at Vaitele-Fou. He then went along with his co-offenders on a truck to the ringleader’s workplace. The accused further told the probation service that he only found out that the materials with which the ringleader wanted his help were stolen items of property when they arrived at the Hainan Construction site and the ringleader jumped over the company’s fence to make his way inside the company’s premises. The accused emphasised to the probation service that he did not enter the company’s premises as he was on the truck parked outside of the fence and when the ringleader who went inside the company’s premises tossed the bags of cement over the fence, he would put them on the truck. Afterwards, they took the bags of cement to a friend of the ringleader from whom they received a monetary payment. He received only $50 from that money.

The accused

6. The accused is a 23 year old male from the village of Neiafu in Savaii. He has a wife and a one year old daughter. He is the sole provider for his young family. He presently resides with his young family with his relatives at Toamua as he is working at a bakery at Vaitele-Fou.
7. The accused is a first offender and as it appears from the testimonials provided by his wife, the pastor of his village of Neiafu, and the pulenuu of his village, he had been a person of good character prior to the commission of these offences.
8. Counsel for the accused also informed the Court that the accused has been penalised by the Alii and Faipule of Neiafu and that he and his family have paid a fine of twenty five boxes of canned fish, five fine mats, and $300 cash.
9. The accused has also expressed remorse and apologised to the probation service. He has also pleaded guilty to the charges against him at the earliest opportunity.
10. In relation to the offending, it is clear that it was not the accused who instigated this offending but one of his co-offenders who was employed by Hainan Construction. The accused also received a limited benefit from the offending.

Aggravating features relating to the offending

(a) Value of the stolen properties

11. The only aggravating feature relating to this offending is the total value of $6,570 of the stolen bags of cement.

(b) Group offending

12. I am not able to accept, as suggested by the prosecution, that the group nature of this offending is an aggravating feature relating to the offending. There are cases where the group nature of the offending may be an aggravating feature relating to the offending. But this is not one such case.
13. In R v Diack [1991] 1 NZLR 281, 283, the New Zealand Court of Appeal observed that substantial sentences must inevitably follow “when persons combine their efforts and resources to achieve unlawful objectives which can cause serious harm to the community”.
14. In R v Mako [2000] NZCA 407; (2000) 17 CRNZ 272, [49], the New Zealand Court of Appeal stated:
    • “Gangs or any other group within the community who are responsible for major organised crime must expect their members representing them in criminal conduct to have the connection recognised as increasing the seriousness of the offending”.
15. In my view, the offending in this case does not fall within the descriptions in Diack and Mako so as to justify the group nature of this offending being treated as an aggravating feature relating to the offending.

(c) Clandestine nature of offending

16. I am also not able to accept the suggestion by the prosecution that the clandestine nature of the burglary and theft offending in this case is an aggravating feature relating to the offending. Burglary and theft are normally committed in secret and deceitful circumstances. It is an integral part of a burglary and theft committed together. The clandestine nature of such an offending is part and parcel of the offending itself but not an aggravating feature relating to the offending.

(d) Personal circumstances of the offenders

17. Again, I am not able to accept as an aggravating feature relating to the offending, as suggested by the prosecution, that as the offenders in this case are young and unemployed and have set for themselves what seems to be a pattern of offending behaviour that would earn them fast and dirty money, an example should be made of the offenders in order to discourage this type of offending.
18. In the first place, the starting point for sentencing approach draws a distinction between an ‘offending’ and an ‘offender’. This distinction should be borne in mind when applying the starting point. Secondly, the present accused is employed, that is, at a bakery at Vaitele-Fou. So he is not unemployed and seems to be set on a pattern of offending behaviour that would earn him fast and dirty money. In relation to the offending, the accused appears to have been drawn into this offending by the ringleader who instigated the offending. On that basis, it is also not easy to say that the accused has set for himself what seems to be a pattern of offending behaviour.

Mitigating feature relating to the offending

Role of the accused in the offending

19. The accused was not the instigator of this offending. He was only approached around 6pm on 10 September 2014 to help the ringleader with his errand. Around 7pm the same evening, the accused was taken by the ringleader to the premises of his employer, Hainan Construction. According to the accused, it was then that he realised that he was on a theft mission when the ringleader jumped over the company’s fence and entered the premises. The accused also told the probation service that he remained outside the company’s fence and put on the truck the bags of cement that the ringleader was tossing over the fence from inside the company’s premises. The accused also received only a limited benefit of $50 from this offending.

Mitigating features relating to the accused as offender

(a) Previous good character

20. The accused is a first offender and had been a person of good character prior to the commission of these offences.

(b) Penalty by the Alii and Faipule of the accused’s village

21. The accused was penalised by the Alii and Faipule of his village of Neiafu and he and his family have paid a fine to the village of twenty five boxes of canned fish, five fine mats, and $300 cash.

(c) Remorse

22. The accused has expressed remorse and apologised to the probation service for his offending. His early guilty plea to the charges against him is a sign of that remorse.

(d) Early guilty plea

23. The accused’s guilty plea at the earliest opportunity to the charges against him is another mitigating feature relating to him as offender.

Discussion

24. Having regard to the aggravating and mitigating features relating to the offending as well as the mitigating features relating to the accused as offender, I have decided to impose a non-custodial sentence. But I must warn the accused that if he appears before the Court again on this type of offending, then he is most likely to go to prison. So let this offending be a warning and a solemn lesson to him.

Result

25. The accused is convicted of both charges against him and sentenced to 12 months supervision pursuant to s.12 of the Community Justice Act 2008. He is also ordered to perform 100 hours of community work during his term of supervision pursuant to ss.12(3) and 19 of the Act.

Honourable Chief Justice