Police v Devoe [2015] WSSC 69 (29 July 2015)

SURPEME COURT OF SAMOA
Police v Devoe [2015] WSSC 69

Case name:	Police v Devoe
Citation:	[2015] WSSC 69
Decision date:	29 July 2015
Parties:	POLICE (prosecution) v TAOTUA JOHN DEVOE male of Fagali-uta.
Hearing date(s):	Guilty plea
File number(s):	S1690/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Sentenced to 7 months imprisonment. Any time spent in custody is to be deducted from that sentence.
Representation:	O Tagaloa for prosecution Accused in person
Catchwords:	Burglary – theft – insulting words – maximum penalties – aggravating features – mitigating features – breach of trust – early guilty plea – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.174 s.161 s.165 (d); Police Offences Ordinance 1961s.4 (g)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1690/15

BETWEEN

P O L I C E
Prosecution

A N D

TAOTUA JOHN DEVOE male of Fagalii-uta.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 29 July 2015

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment; one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of one year imprisonment pursuant to s.165 (d); and one charge of using insulting words, contrary to s.4 (g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment. To all three charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. On the night of 23 May 2015, the accused was drinking beer in one of the small open fales in which he stays in the compound of the Fagalii golf course. After he had three bottles of beer, he decided to go to the bar on the top floor of the golf course clubhouse in the hope of finding more alcohol. He found the entrance door to the clubhouse locked and there was no one else present. He then climbed up outside the bathroom of the clubhouse and entered the top floor. He then looked for a way to enter the bar where the alcohol are kept. He saw a window on the right side of the bar and used a chair to reach up to the window and removed two louvres. Once inside the bar, he took one bottle of vodka valued at $65, one bottle of rum valued at $75, one bottle of Jim Beam valued at $78, and one bottle of wine valued at $25. The total value of these items is $243.00. The accused then took the stolen items and hid them in the bushes within the golf course compound.
3. On the next morning at around 7:00am, the accused and a friend started drinking all the bottles of alcohol at the house of his friend at Fagalii-uta. By 6:00pm the same day, the accused who was heavily drunk went back to the golf course. The employees at the clubhouse who had been looking for the person who broke into the bar and stole the bottles of alcohol saw the accused heavily drunk. They became suspicious and called the police who came and apprehended the accused.
4. When the police arrived with the accused at the police station, the heavily drunk accused swore at the police. The accused then went to sleep inside the police station. When he woke up the following morning, he was interviewed by the police.

The accused

5. The accused is a 27 year old male of Fagalii-uta. As his pre-sentence report shows, when the accused’s father passed away, his mother re-married and lived with her new husband in American Samoa leaving the accused at Fagalii-uta in the care of her sisters. The accused then attended school up to Year 12 when he was expelled from school because of his involvement in a school brawl. At the time of this offending, he was being employed at the Fagalii golf course and living by himself in a small open fale in the golf course compound because he had been disowned by his maternal aunts in 2013 due to his drinking habits.
6. The accused has a previous conviction in 2013 for using insulting words and previous convictions in 2014 for using insulting words and being armed with a dangerous weapon.

The victim

7. Apart from the stolen bottles of alcohol, the victim, who operates the bar at the Fagalii golf course clubhouse, has had to replace the louvres of the window through which the accused entered the bar. The victim says in the victim impact report he is tired of people breaking into his bar.
8. The victim also says that what hurts him most is that he has treated him well. He knows that the accused had been banned by his family and was staying by himself in a small fale in the golf course compound. He used to give the accused money and food because he felt sorry for him. Sometimes, he gives the accused clothes when he sees the accused wearing ragged clothes.

Aggravating features relating to the offending

(a) Breach of trust

9. The accused’s actions of burgling and stealing from the bar on the top floor of the clubhouse is a breach of the trust of his employer which was employing him in the Fagali golf course and allowing him to stay in one of the small open fales in the golf course compound. This is an aggravating feature relating to the offending.

(b) Value of stolen properties

10. The value of the stolen properties is another aggravating feature relating to the offending.

(c) Impact of offending on the victim

11. The financial and phsychological impact of the offending on the victim is another aggravating feature relating to the offending.

(d) Time of offending

12. I do not consider the fact that this offending was committed at night time as an aggravating feature relating to the offending. Burglaries accompanied by theft which are committed during the day time are just as bad as the ones committed at night time.

The aggravating features relating to the accused as offender

Previous convictions for using insulting words

13. The accused’s previous convictions for using insulting words is an aggravating feature relating to this offending which includes using insulting words.

The mitigating features relating to the accused as offender

Guilty plea

14. The only mitigating feature relating to the accused as offender is his guilty plea at the earliest opportunity.

Discussion

15. I will apply the totality principle of sentencing to this case. Taking into account the aggravating features relating to the offending, I will take 9 months as the starting point for sentencing. I will add on one month for the accused’s previous convictions. That increases the starting point to 10 months. I will then deduct 30% for the accused’s early guilty plea. That leaves 7 months.

Result

16. The accused is convicted of the charge of burglary and sentenced to 7 months imprisonment.
17. The accused is convicted of the charge of theft and sentenced to 5 months imprisonment.
18. The accused is convicted of the charge of using insulting words and sentenced to one month imprisonment.
19. All sentences to be concurrent. Any time the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE SAPOLU