Police v Fido [2015] WSSC 80 (17 July 2015)

SUPREME COURT OF SAMOA
Police v Fido [2015] WSSC 80

Case name:	Police v Fido
Citation:	[2015] WSSC 80
Decision date:	17 July 2015
Parties:	POLICE (prosecution) v PETER FIDO aka PAKU FIDO male of Taufusi, Vaimea and Saipipi, Savaii (accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 12 months supervision.
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Burglary and theft – maximum penalty – early guilty plea – victim impact report – value of the stolen properties – impact on the victim – degree of premeditation and planning – mitigating features relating to the offender – aggravating features relating to the offending – previous good character – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.174 s.161 s.165 (b)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PETER FIDO aka PAKU FIDO male of Taufusi, Vaimea and Saipipi, Savaii.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 17 July 2015

S E N T E N C E

The charges

1. The accused is an 18 year old male who 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, and one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 7 years imprisonment under s.165 (b) because of the value of the stolen properties. To both charges, the accused pleaded guilty at the earliest opportunity.
2. The accused was jointly charged with two co-accused to whom I would refer as A and B. Because A and B are aged 16 years, they were dealt with in the Youth Court. According to the pre-sentence report on the accused, the co-accused A who has two previous convictions was sentenced to 18 months imprisonment and the co-accused B was given a suspended sentence of 12 months.

The offending

3. This is a case of simple burglary under s.174 of the Crimes Act 2013 as opposed to aggravated burglary under s.175. According to the prosecution’s summary of facts which was confirmed by the accused, on the night of 15 March 2015, the accused and his co-accused A and B were hanging out at Lalovaea. At some point in time that night, they decided to burgle a shop at Vaimea. They then went to the house of B and got some clothing to be used as disguises. When they came to the shop they had decided to burgle, they changed their minds and continued on to the complainant’s shop. When they arrived at the complainants’ shop, A told the accused and B to wait while he went to check the door of the complainant’s shop if it was easy to open. This was about 3:00am in the morning. When A returned, he said to the accused and B that the back door of the shop could be opened with a screwdriver. The three of them then went to the accused’s house and brought a school bag and a screwdriver and returned to the complainant’s shop. The accused then waited in front of the complainant’s shop as a look-out while A and B who had wrapped clothing around their heads as disguises took the bag and screwdriver with them to the back door of the complainant’s shop. They then used the screwdriver to break the lock of the back door and entered the shop. When they came to another locked door inside the shop they again used the screwdriver to open that door. Once they got to the stock inside the shop, they opened the bag they had with them and put in it cartons of cigarettes, headphones, various food stuffs, soft drinks, bottles of vodka, and other goods. They then left the complainant’s shop with the accused who had been keeping a look-out. They consumed some of the stolen food and drinks that night and hid away what remained near the house of B.
4. At 6:00am the same morning when the employees of the complainant arrived to open the shop, they noticed the doors at the back of the shop were open. They immediately contacted the complainant and the police were notified. The police were able to identify the co-accused A from the footage taken from a video camera installed inside the shop. On 16 March 2015, A and B were apprehended by the police. On the next day, the present accused was also apprehended by the police. The total value of the stolen properties was $1,115.40. Some of those properties were recovered by the police.
5. In terms of s.33 of the Crimes Act 2013, which is the parties provision, A and B would be the principal parties for they were the ones who actually committed the offences of burglary and theft (s.33(1)(a)). The accused, on the other hand, would be a secondary party for he was aiding A and B to commit those offences by keeping a look-out (s.33(1)(b)).

The victim impact report

6. In the victim impact report, the complainant says that goods and monies were stolen from his shop. The prosecution’s summary of facts confirmed by the accused does not mention any money stolen from the complainant’s shop. The victim impact report also states that the total estimated loss to the complainant, including the replacement costs of the broken locks, is $5,000. However, the estimated total value of the stolen goods as shown in the summary of facts is $1,115.40 and some of the goods were recovered by the police. There is also no mention of any stolen money in the summary of facts. The reported estimated loss of $5,000 to the complainant would therefore seem too high.

The accused

7. As earlier mentioned, the accused is 18 years. He is still a student attending college. He is also a first offender. He is the eldest of his parents eight children. His family relies financially on his father’s employment as a carpenter in a construction company.
8. The pre-sentence report shows that the accused has had an unstable school background. At age 18, he has attended four different schools in his career as a student. The testimonial from the principal of the accused’s present school shows that the accused sometimes attends school and sometimes does not. On the other hand, the testimonial from the catechist of the accused’s church shows that the accused is a loyal participant in the activities of the church youth and in 2014 at age 17 he won the Apia Parish Outstanding Male of the Year Award and the Taufusi Youth of the Year Award. The accused is also a member of his church choir that sings at the Immaculate Conception of Mary Cathedral at Mulivai. The testimonial from the Mulivai Cathedral Administrator confirms the testimonial from the catechist of the accused’s church and states that the accused is serving the church well and used to be one of the altar boys serving Holy Communion at the church (talimisisa).

Aggravating features relating to the offending

9. The following are the aggravating features relating to the offending by the accused:

(a) Value of the stolen properties

10. The total value of $1,115.40 of the stolen properties is an aggravating feature relating to the accused’s offending. He is jointly responsible with his two co-accused for all the goods that were stolen being a party to this offending.

(b) Impact on the victim

11. The total financial loss to the complainant which would include the replacement costs for the damaged locks and unrecovered goods together with the psychological impact of the offending on the complainant are another aggravating feature relating to this offending.

(c) Degree of premeditation and planning

12. The degree of premeditation and planning involved in this offending as shown by the actions of the accused and his two co-accused is another aggravating feature relating to the offending.

Mitigating features relating to the accused as offender

13. The following are the mitigating features relating to the accused as offender:

(a) Young age of the accused

14. The young age of the accused together with the fact that he is still a student are a mitigating feature relating to the accused as offender.

(b) Previous good character

15. The pre-sentence report shows the accused to have had an unstable school background. However, the testimonials from the accused’s church show that there is an element of goodness in him. This is another mitigating feature relating to the accused as offender.

(c) Early guilty plea

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

Discussion

17. The accused at the age of 18 years is still a young man and his future is still very much ahead of him. He is also a first offender and the testimonials from his church show that he has been a promising youth. In spite of this offending, there is still a chance that his life can be turned around away from one of crime. A sentence of imprisonment would obliterate that possibility at this critical stage of his life. It could make him a much worse person by the time he comes out than before he went in. Prison would not be the appropriate environment to facilitate a comeback for him to normal life. It would also end any hope for him at school. In saying this, I do not overlook the seriousness of the accused’s offending. Burglary carries a maximum sentence of 10 years imprisonment and theft carries a maximum sentence of 7 years imprisonment. And I want the accused to realise the serious of his offending and that he is at the verge of going to prison today.
18. However, I have decided to give the accused a second chance to redeem himself while he is still a young man with his future still ahead of him. To achieve this end, the accused must stop associating with the wrong people, particularly the type of youths like his co-offenders. The parents of the accused must also join in and help their son to turn a new leaf. They must not depend solely on the administration of justice to do for their son what they as parents must be doing for him. The probation service can assist with its rehabilitation programmes but the parents also have an important and essential role to play in the rehabilitation process for their son.
19. I have decided not to impose a non-custodial sentence. But I must warn the accused not to offend again. If he does, then there is a high degree of probability that the Court will show no more leniency on him but to send him to prison. So it is in his best interests not to offend again.

Result

20. The accused is convicted of the charges against him and sentenced to 12 months supervision.
    

CHIEF JUSTICE