Police v Viliamu [2015] WSSC 71 (21 July 2015)

SUPREME COURT OF SAMOA
Police v Viliamu [2015] WSSC 71

Case name:	Police v Viliamu
Citation:	[2015] WSSC 71
Decision date:	21 July 2015
Parties:	POLICE (prosecution) v TAFI LEO VILIAMU male of Tafaigata and Toamua.(accused).
Hearing date(s):
File number(s):	S1542/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused is convicted and sentenced to 2 years imprisonment on the charge of burglary. - On the charge of theft, the accused is convicted and sentenced to 12 months imprisonment. - On the charge of escape from lawful custody, the accused is convicted and sentenced to 6 months imprisonment. - All sentences to be concurrent.
Representation:	L Suá-Mailo and B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	Burglary – theft – escape from lawful custody - maximum penalties – early guilty pleas to all charges – aggravating features – home invasion – impact of the offending – previous convictions – mitigating features - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013,s.174 s.161 s.165 (c) s.143
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1542/15

BETWEEN

P O L I C E
Prosecution

A N D

TAFI LEO VILIAMU male of Tafaigata and Toamua.
Accused

Counsel:
L Suá-Mailo and B Faafiti-Lo Tam for prosecution
Accused in person

Sentence: 21 July 2015

S E N T E N C E

The charges

1. The accused Tafi Leo Viliamu appears for sentence on (a) one charge of burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, (b) one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 2 years imprisonment under s.165 (c) because of the total value of the properties stolen, and (c) one charge of escape from lawful custody, contrary to s.143 of the Act, which carries a maximum penalty of 2 years imprisonment. To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution’s summary of facts, the accused and the victim are related to each other as they are members of the same extended family. On 10 May 2015, the accused escaped from Tafaigata prison where he is a prisoner. The next day 11May 2015, he went to the victim’s house while the victim was not at home and removed the wood that held the lock of the door. He then entered the house and stole a mobile phone valued at $280, a pair of cargo shorts valued at $70, a short sleeved jacket valued at $50, and a long sleeved jacket valued at $150.
3. When the victim returned home, he found that his house had been burgled and the said items were missing. He then contacted the police. Upon enquiries at Tafaigata prison, the police discovered that the accused who is a known burglar to the police had escaped from prison on 10 May 2015. So the police became very suspicious that the accused might be the burglar of the victim’s house and they started looking for the accused. On 13 May 2015, the police attended the house of a known contact of the accused at Vaitele. Upon arrival, the police sighted the accused ran out of the back of the house and jumped over a fence. The police gave chase and caught the accused.
4. When the police asked the accused about the stolen items, he told the police that they were hidden in the tall grass at the back of the victim’s house. The police then went there and found all of the stolen properties and returned them to the victim.

The accused

5. The accused is aged 25 years. He is not new to the Courts. He has four previous convictions for burglary and three previous convictions for theft starting from 2012. His last previous convictions for burglary and theft were on 23 February 2015. He also has one previous conviction in 2014 for escape from lawful custody.

The victim

6. The victim is 58 years. He is a taxidriver. He stays by himself in his house at Vaitele-fou as his wife and children now reside in New Zealand.
7. The victim impact report shows that the accused and the victim are relatives. The accused used to stay with the victim who treated the accused like his own son and took care of him. As a result of this offending, the victim has sought the assistance of his relatives for someone to look after his house when he goes to work as a taxidriver. The victim is worried that the accused might be able to escape from prison again and come and burgle his house.
8. The victim impact report is seriously critical of the accused. However, I will not take those criticisms into account because they have not been shown to the accused whether he confirms them or not. For those criticisms to be taken into account in determining an appropriate sentence for the accused when he has not been given the opportunity to comment on them, would be an infringement of natural justice and the accused’s right to a fair trial under Article 9 of the Constitution.

The aggravating features relating to the offending

(a) Home invasion

9. This is a case of burglary and theft of a home and therefore involves home invasion which is an aggravating feature relating to the offending.

(b) Total value of stolen properties

10. The total value of the stolen items of property is an aggravating feature relating to the offending. However, I do bear in mind that the stolen items were recovered by the police and returned to the victim.

(c) Escape from lawful custody

11. The fact that the offences of burglary and theft were committed when the accused escaped from Tafaigata prison where he is a prisoner is another aggravating feature relating to the offending.

(d) Impact of the offending

12. Burglary offences which involve home invasion generally have had some kind of psychological impact on the home owner. In this case, the victim has sought the assistance of his relatives for someone to come and look after his house when he goes to work as a taxidriver as he is worried that the accused might escape from prison again and burgle his house.
13. The aggravating features relating to the accused as offender

Previous convictions

14. The accused’s previous convictions for burglary, theft, and escape from lawful custody are an aggravating feature personal to the accused as offender.

The mitigating features relating to the accused as offender

Guilty plea

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

Discussion

16. I must say that the approach followed by counsel for the prosecution in their sentencing memorandum in determining a starting point for sentence and then making any necessary adjustments, up or down, for aggravating and mitigating features relating to the accused as offender is the correct sentencing approach now applicable in Samoa. The starting point for sentence is determined by taking into account the aggravating features and any mitigating features relating to the offending. This defines the extent of the criminality of the offending. Adjustments up or down, are then made for any aggravating features relating to the accused as offender and the mitigating features relating to the accused as offender. A guilty plea is often, if not always, the last of the mitigating features personal to the accused to be taken into account. The outcome of this exercise is the end sentence to be imposed.
17. Having regard to the aggravating features relating to this offending, I will take 2 years as the starting point for sentence. I will then add on 12 months for the accused’s previous convictions as the aggravating feature relating to him as offender. That increases the starting point to 3 years. I will then deduct 12 months for the early guilty plea. That leaves 2 years.

The result

18. The accused is convicted and sentenced to 2 years imprisonment on the charge of burglary.
19. On the charge of theft, the accused is convicted and sentenced to 12 months imprisonment.
20. On the charge of escape from lawful custody, the accused is convicted and sentenced to 6 months imprisonment.
21. All sentences to be concurrent.
    

CHIEF JUSTICE