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Police v Maualaivao [2015] WSSC 47 (5 May 2015)
SUPREME COURT OF SAMOA
Police v Maualaivao [2015] WSSC 47
Case name: | Police v Maualaivao |
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Citation: | |
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Decision date: | 5 May 2015 |
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Parties: | POLICE (prosecution) v VAINI MAUALAIVAO aka VAINI VASEGA (accused) |
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Hearing date(s): |
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File number(s): | S957/15 |
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Jurisdiction: | Criminal |
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Place of delivery: | Supreme Court of Samoa, Mulinuu |
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Judge(s): | Chief Justice Sapolu |
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On appeal from: |
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Order: | - Convicted and sentenced to 12 months imprisonment on both the burglary and theft charges. Both sentences to be concurrent. - The time that the accused has already spent in custody pending the outcome of this matter is to be deducted from that sentence. |
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Representation: | P Chang for prosecution Accused in person |
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Catchwords: | Burglary – theft – maximum penalty – early guilty plea – aggravating and mitigating features – intention
to burgle – home invasion – value of stolen properties - sentence |
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Words and phrases: | mens rea |
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Legislation cited: | Crimes Act 2013,s.174(1) s.161, s.165(b). |
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Cases cited: | |
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Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
FILE NO: S957/15
BETWEEN
P O L I C E
Prosecution
A N D
VAINI MAUALAIVAO aka VAINI VASEGA male of Malie.
Accused
Counsel:
P Chang for prosecution
Accused in person
Sentence: 5 May 2015
S E N T E N C E
The charges
- The accused appears for sentence on one charge of burglary, contrary to s.174(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of theft, contrary to s.161 of the Act, which carries a
maximum penalty 7years imprisonment under s.165(b). To both charges, the accused pleaded guilty at the earliest opportunity.
Offending
- On Monday 2 March 2015 around midnight, the accused was walking along the road at Afega when he saw that there was no one inside
the open Samoan fale of the complainant’s family. At that time, the accused who is from Malie was staying with a friend at
the neighboring village of Tuanai.
- The accused then entered the Samoan fale of the complainant’s family and stole the complainant’s blue bag which contained
the following items: (a) one Samsung cellphone valued at $400, (b) one pair of reading glasses valued at $20, (c) one Samsung galaxy
cellphone valued at US$600, (d) one Apple laptop valued at US$1200, (e) one Bose speaker valued at US$130, (f) two English bibles
valued at US$12, (g) one driver’s licence valued at US$25, and (h) cash of $100. The total value of these items in Samoan currency,
including the $100 in cash, was $5,289.39.
The accused
- The accused is from the village of Malie but was staying with a friend at Tuanai at the time of this offending. He is single and
unemployed. Given that his date of birth was 16 January 1995, as shown from his pre-sentence report dated 31 July 2013 for a previous
offending, he would be 20 years at the time of this offending.
- As it also appears from the accused’s pre-sentence report for this matter, the accused was convicted in the Youth Court in
August 2013 for the same type of offending as it is in this case and was given a suspended sentence of 6 months and ordered to perform
50 hours of community work. That suspended sentence of 6 months must have expired in February 2015 but the accused has re-offended
on 2 March 2015.
- It also appears from the accused’s pre-sentence report for this matter that the information he gave the probation service for
the preparation of his present pre-sentence report regarding his personal circumstances are very different from the information he
gave the probation service in 2013 in the presence of his father regarding his personal circumstances for the preparation of his
2013 pre-sentence report. This is a sign that the accused was not being truthful with the probation service.
Aggravating features relating to the offending
(a) Home invasion at night
- This offending involved the burglary of the home of the complainant’s family around midnight. This is an aggravating feature
relating to the offending.
(b) Value of the stolen properties.
- The total value of the stolen properties was $5,289.39 which is a substantial amount by Samoan standards. This is also an aggravating
feature relating to the offending.
(c) Intention to burgle the complainant’s house
- I do not agree with the suggestion by the prosecution that the intention of the accused in this case to burgle the complainant’s
house is an aggravating feature relating to the offending. Such an intention would be the mens rea required for the offence of burglary
but not an aggravating feature relating to the offending.
- An aggravating feature relating to the offending is a feature that increases the seriousness or severity of the offending. An intention
to burgle a house is the mental element of the offence of burglary but not an aggravating feature that increases the seriousness
or severity of the offending. However, there are cases where the planned, deliberate, and premeditated nature of a burglary is an
aggravating feature relating to the offending. This offending which occurred when the accused walked past on the road and saw no
one in the Samoan fale of the complainant’s family is more in the nature of a ‘spontaneous exploit’ and is not
one of such cases.
- In R v Mako [2000] NZCA 407; [2000] 2 NZLR 170; (2000) 17 CRNZ 272, at [36]; the New Zealand Court of Appeal stated:
- “The degree of planning and preparation will reflect criminality. Detailed activity over a sustained period indicating care
and sophistication in organisation are hallmarks of serious criminals particularly criminal organisations. Such conduct is plainly
to be regarded more seriously than less premeditated or spontaneous exploits”
Aggravating feature relating to the accused as offender
- I am also not able to accept the suggestion from the prosecution that the accused’s previous conviction for burglary and theft
in August 2013 is an aggravating feature relating to the offending. Previous convictions are an indicator of the offender’s
character and may justify an uplift in the sentence in order to vindicate the principle of deterrence. Previous convictions can
also be an indicator of the risk of reoffending by the offender. It follows that previous convictions are an aggravating feature
relating to the offender rather than the offending.
- The Court, however, must be cautious about giving too high an uplift than it is justified for previous convictions that it gives
the impression that the accused is being punished again for offences for which he has already being punished. Deterrence rather
than punishing the accused again for offences for which he has already being punished should be the justification for an uplift
in the sentence by reason of previous convictions.
Mitigating feature relating to the accused as offender
Guilty plea
- The only mitigating feature relating to the accused as offender is his guilty plea to the charges against him at the earliest convenience.
Discussion
- Having regard to the aggravating features relating to the offending, I wll take 15 months as the starting point for sentence. I
will add on 3 months for the previous conviction for burglary and theft in 2013. That increases the starting point to 18 months.
I will then deduct 1/3 or 6 months for the early guilty plea. That leaves 12 months.
Result
- The accused is sentenced to 12 months imprisonment on both the burglary and theft charges. Both sentences to be concurrent.
- The time that the accused has already spent in custody pending the outcome of this matter is to be deducted from that sentence.
Honourable Chief Justice
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