Police v Leatinuu [2015] WSSC 86 (24 August 2015)

SUPREME COURT OF SAMOA
Police v Leatinuu [2015] WSSC 86

Case name:	Police v Leatinuu
Citation:	[2015] WSSC 86
Decision date:	24 August 2015
Parties:	POLICE (prosecution) v LIKISANI LEATINUU male of Vailoa-tai, Faleata, ARONA POLATAIVAO male of Vailoa-tai, Faleata, LOTOVALE TOAVALU FAASIPA male of Vailoa-tai, Faleata.(accused)
Hearing date(s):
File number(s):	S1990/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused Likisani is convicted of the joint charges against him and sentenced to 18 months imprisonment on each of those charges. All sentences to be concurrent. Any time Likisone has already spent in custody is to be further deducted from his sentence. - The accused Arona is convicted of the joint charges against him and sentenced to 18 months supervision. - The accused Lotovale is convicted of the joint charges against him and sentenced to 18 months supervision.
Representation:	P Chang for prosecution Accused in person
Catchwords:	Burglary – theft – maximum penalty – aggravating features relating to the offending – breach of trust – extent of offending – planning and premeditation – mitigating features relating to the accused as offender – formal apologies – previous good character – early guilty pleas – starting point for sentence – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.174 s.161 s.165 (b).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1990/15

BETWEEN

P O L I C E
Prosecution

A N D

LIKISANI LEATINUU male of Vailoa-tai, Faleata, ARONA POLATAIVAO male of Vailoa-tai, Faleata, LOTOVALE TOAVALU FAASIPA male of Vailoa-tai, Faleata.

Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 24 August 2015

S E N T E N C E

The charges

1. The accused Likisani Leatinuu, Arona Polataivao, and Lotovale Toavalu all of Vailoa-tai, Faleata, appear for sentence on six joint charges of burglary, contrary to s.174 of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment, and six joint charges of theft contrary to s.161 of the Act, each of which carries a maximum penalty of 7 years imprisonment contrary to s.165 (b). To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. On six separate occasions from 31 May 2015 to 13 June 2015, the three accused broke into the hall of the Congregational Christian Church (the EFKS Church) at Vailoa-tai, Faleata, and stole items of property. According to the prosecution’s summary of facts confirmed by the accused, on 31 May 2015, the accused went to the hall of the EFKS Church at Vailoa-tai and removed louvers from the window of the storage room of the hall. One of the accused then climbed into the storage room through the window and stole four boxes of 3lb corned beef valued at $150, and two boxes of 12 ounce corned beef valued at $150. The total value being $300. The other two accused helped carry the properties out of the storage room. The accused then sold the stolen properties to a third party in Vailoa.
3. On 8 June 2015, the accused again went to the hall of the EFKS Church at Vailoa-tai and removed louvres from the window of the storage room of the hall. One of the accused then climbed into the storage room through the window and stole four boxes of 12 ounce corned beef valued at $150 each to a total value of $600. The other two accused helped carry the properties out of the storage room. The accused then sold the properties to a third party at Vailoa.
4. On 9 June 2015, the accused went to the hall of the EFKS Church at Vailoa-tai and removed louvres from the window of the storage hall. One of the accused then climbed into the storage room through the window and stole four boxes of 12 ounce corned beef valued at $150 each to a total value of $600. The other two accused helped carry the stolen properties out of the storage room. They then sold the properties to a third party at Vailoa.
5. On 10 July 2015, the accused again went to the hall of the EFKS Church at Vailoa-tai and removed louvres from the window of the storage room of the hall. One of the accused then climbed into the storage room through the window and stole three boxes of 12 ounce corned beef valued at $150 each to a total value of $450. The other two accused helped carry the stolen properties out of the storage room. They then sold the properties to a third party in Vailoa.
6. On 12 June 2015, the accused went to the hall of EFKS Church at Vailoa-tai and removed the louvres from the window of the storage room. One of the accused then climbed into the storage room through the window and stole four boxes of 12 ounce corned beef valued at $150 each to a total value of $600. The other two accused helped carry the stolen properties out of the storage room. The accused then sold the properties to a third party at Vailoa.
7. On 13 June 2015, the accused again went to the hall of the EFKS Church at Vailoa-tai and removed the louvres from the window of the storage room. One of the accused then climbed into the storage room through the window and stole one box of 12 ounce corned beef valued at $150 and one box of canned fish valued at $40 tala to a total value of $190. The other two accused helped carry the stolen properties out of the storage room. They then sold the stolen properties to a third party at Vailoa.
8. The total stolen properties were therefore four boxes of 3lb corned beef, eighteen boxes of 12 ounce corned beef, and one box of canned fish. Their total value was $3,340.

The accused Likisani Leatinuu

9. According to the pre-sentence report on the accused Likisani Leatinuu (Likisani), Likisani is 23 years old. He is single and unemployed. He finished secondary school at Year 12 and then spent one year of training in mechanical engineering at the Punaoa Technical College. Upon leaving school, he stayed home and helped his family with the normal household chores.
10. The testimonial from Likisani’s mother describes him as an obedient son and a reliable member of the family. He is also an active member of their church and participates in the church choir and youth group.
11. The testimonial from the pastor of the EFKS Church at Vailoa-tai shows that all three accused had been raised within the church and it’s Sunday school. They are now members of the church choir and youth group. The pastor of the accused’s church also says that he had never had cause to suspect that the three accused would end up like this as they have been very honest, reliable, and well-behaved. They have also been participating in church activities to his full satisfaction. The families of all three accused have also performed a ifoga and he has accepted the ifoga and forgiven the accused.
12. The testimonial from the pulenuu of Vailoa-tai, Faleata, confirms that this matter has already been settled within the village and the Church in accordance with custom.
13. The accused Likisani, however, has a previous conviction for theft in the District Court on 11 April 2013 when he was given a 6 months suspended sentence.

The accused Arona Polataivao

14. According to the pre-sentence report on the accused Arona Polataivao (Arona), Arona is 19 years old. He finished school at Year 12 and was employed but his employment was terminated one week before his arrest in relation to this offending.
15. The testimonial from Arona’s father shows that the accused is a humble and obedient son. Arona is said to spend most of his time at the house of their village pastor helping out with household chores as they are neighbours. I have already referred to the testimonials provided by the pastor of the accused’s church and the pulenuu of their village in respect of all the accused.
16. Arona is also a first offender and it appears from the testimonials from his father, church pastor, and village pulenuu that he had been a person of good character prior to the commission of these offences.

The accused Lotovale Toavalu

17. According to the pre-sentence report on the accused Lotovale Toavalu (Lotovale), Lotovale is 21 years old. He is single and unemployed. He finished school at Year 11 and then stayed home and helped out with household chores.
18. The testimonial from Lotovale’s mother shows that Lotovale is obedient, respectful, reliable, hardworking, and a person of good character. I have already referred to the testimonials from the pastor of the accused’s church and village pulenuu in respect of all accused.
19. Lotovale is also a first offender and appears to have been a person of good character prior to the commission of these offences.

General comments

20. It appears from the pre-sentence reports on all three accused that they spent lots of times at the house of their village pastor doing household chores for the pastor and his family as village youths in many other villages do. The accused told the probation service that they sold the stolen goods to the same shop and received a total of $1,800. They then spent part of the money on food, cigarettes, and alcohol. What was left was splitted equally amongst themselves.

The aggravating features relating to the offending of all three accused

21. The aggravating features relating to the offending of all three accused are as follows:

(a) Breach of trust

22. This offending involved a breach by each of the accused of the trust his village pastor had in him and this is an aggravating feature relating to the offending.

(b) Extent of offending

23. This is not a one isolated incident of burglary and theft but six separate incidents of burglary and theft committed within a period of fourteen days. The extent of this offending is an aggravating feature relating to the offending.

(c) Quantity and value of the stolen properties

24. The quantity of stolen properties was four boxes of 3lb corned beef, eighteen boxes of 12 ounce corned beef, and one box of canned fish. Their total value was $3,340. The quantity of the stolen properties and their total value are an aggravating feature relating to the offending.

Planning and premeditation

25. The repetitive nature of this offending over a period of fourteen days suggests a high level of planning and premeditation which is an aggravating feature relating to the offending. The primary motive of the accused was obviously pure greed.

The aggravating features relating to the accused as offenders

26. The previous conviction of the accused Likisani in the District Court in 2013 for theft is an aggravating feature relating to his offending.

The mitigating features relating to the accused as offenders

(a) Previous good character

27. The previous good characters of the accused Arona and Lotovale are a mitigating feature relating to each of them as offender. The same cannot be said of the accused Likisani who has a previous conviction for theft.

(b) Ifoga

28. The ifoga performed by the families of all three accused to the village pastor and was duly accepted is a mitigating feature relating to the accused as offenders. The village pastor has also forgiven the accused and has beseeched for this matter to be withdrawn.

(c) Relative young age of the accused

29. The relative young age of the accused, especially that of Arona who is 19 years, are a mitigating feature relating to each of them as offender.

(d) Guilty pleas

30. The guilty pleas by the accused to the charges against them at the earliest opportunity are a mitigating feature relating to all of them as offenders.

Discussion

31. I will consider the case of the accused Likisani first as he has a previous conviction for theft in 2013 and the oldest of the accused. Having taken into account the aggravating features relating to the offending, I will take a starting point for sentence of 2 ½ years. I will then deduct 6 months for the ifoga. That leaves 2 years. I will then deduct 1/3 for the early guilty plea. That leaves 18 months.
32. For the accused Arona and Lotovale, having regard to the aggravating features relating to their offending and the mitigating features relating to each of them as offender, I have decided to give each of them a second chance and not to impose custodial sentences.

The result

33. The accused Likisani is convicted of the joint charges against him and sentenced to 18 months imprisonment on each of those charges. All sentences to be concurrent. Any time Likisone has already spent in custody is to be further deducted from his sentence.
34. The accused Arona is convicted of the joint charges against him and sentenced to 18 months supervision.
35. The accused Lotovale is convicted of the joint charges against him and sentenced to 18 months supervision.

CHIEF JUSTICE