Police v Tiaka [2016] WSSC 12 (16 February 2016)

SURPEME COURT OF SAMOA
Police v Tiaka [2016] WSSC 12

Case name:	Police v Tiaka
Citation:	[2016] WSSC 12
Decision date:	16 February 2016
Parties:	POLICE v LEO TIAKA of Faga, Savaii, and Moataa.
Hearing date(s):
File number(s):	S3807/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 9 months community supervision. As a special condition of his community supervision, the probation service, if it considers appropriate, may refer the accused to the Alcohol and Drugs Education Programme of the Alcohol and Drugs Court during the term of his community supervision.
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Theft – maximum penalty – pleaded guilty– mitigating and aggravating features - sentence
Words and phrases:	Crimes Act 2013, s.161, s.165 (b)
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S3807/15

BETWEEN

P O L I C E
Prosecution

A N D

LEO TIAKA of Faga, Savaii, and Moataa.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 16 February 2016

S E N T E N C E

The charge

1. The accused Leo Tiaka appears for sentence on one charge of theft, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment under s.165 (b). To the charge the accused pleaded guilty at the earliest opportunity.

The offending

2. On Friday night 23 October 2015, the victim went out drinking with a friend. He had a bit too much to drink. When the bars closed around midnight the victim bought some food at a takeaway and drove home. He stopped in front of the Apia Park gate to eat his food and he fell asleep inside his car behind the steering wheel. While the victim was asleep, the accused came across the victim’s car and found the victim soundly asleep. He then took a black laptop worth AUD$3,000, two hard drives worth AUD$150 each and two New Zealand passports worth AUD$250 from the victim’s car. The total worth of these properties was AUD$3,550 which is equivalent to about $6,670 tala. A police patrol that night found the victim asleep in his car sometime after 1:00am and drove the victim home. When the victim woke up at about 11:00am, he discovered the above items missing from his car and informed the police. When the police looked for the victim’s missing properties, they found the laptop at the accused’s home not far from the Apia Park gate. The laptop has been returned by the police to the victim.

The accused

3. The accused is 23 years old. He grew up in his village of Faga in Savaii where he attended primary school. He then came and continued his primary school in Apia before returning to his village in Savaii where he attended secondary school at Amoa College. He left Amoa College at Year 10 and came back to Apia in 2013 and stayed with his aunty at Moataa near the Apia Park. At the time of this offending, the accused was employed at a hardware store earning a salary of $250 a fortnight.
4. As it appears from the presentence report, the accused told the probation service that he is an occasional drinker and on the night of the incident he and his cousins had been drinking alcohol at their home near the Apia Park. He then went to the front of the Apia Park to catch a taxi to go and sleep at his uncle’s place at Taufusi. While waiting for a taxi the victim’s car came up and stopped in front of the Apia Park gate. After a while, he walked over and found the victim sleeping behind the steering wheel. So he opened the back door of the car and found the items with which he has been charged. He then took those items. This appears to be an opportunistic offending.
5. The accused is a first offender and his mother told the probation service about the good characteristics of her son. She also told the probation service that the accused is the only member of their family who is employed and that their family depends on the accused’s wages to cater for their obligations to their village and church. The accused’s mother has also asked for leniency on her son.
6. The presentence report also shows that the accused told the probation service that he kept only the laptop but threw away the victim’s flash drives and passports as they were of no use to him. He also expressed remorse to the probation service and said that he will not appear before the Court again. He also expressed remorse to the Court.

The victim

7. The victim is 49 years old and is the managing director of a rental car company. He has lost all his files relating to his business and other important personal information that were in his hard drives. The police have returned to him his laptop which the police discovered in the accused’s place but the hard drives could not be found. The victim says that he cannot forget this incident and is still angry at the accused. In my view, the victim should also be angry with himself for drinking too much alcohol resulting in him falling asleep behind the steering wheel of his car at the Apia Park gate after midnight; it exposed him to the risk of someone stealing from his car or even damaging his car.

The aggravating and mitigating features

8. The aggravating features of this offending is the total value of the victim’s properties stolen by the accused. There is no other aggravating feature relating to the offending.
9. The impact of the offending on the victim is to an extent mitigated by the fact that the laptop which was the most expensive of the victim’s properties was discovered by the police and returned to the victim. This was also an opportunistic offending committed whilst the accused was under the influence of alcohol so that the level of premeditation would be relatively low.
10. In relation to the accused as offender, the mitigating features are his relatively young age, his previous good character as related by his mother to the probation, his expressions of remorse to the probation service and then to the Court, and his early guilty plea.

Discussion

11. The accused has been remanded in custody for almost 2½ months since 4 December 2015. Having regard to the aggravating and mitigating features of the offending and the mitigating features relating to the accused as offender, I am of the view that the time during which the accused has been in custody is a sufficient custodial punishment for him. He is now to serve a period of community supervision.

Result

12. The accused is now convicted and sentenced to 9 months community supervision. As a special condition of his community supervision, the probation service, if it considers appropriate, may refer the accused to the Alcohol and Drugs Education Programme of the Alcohol and Drugs Court during the term of his community supervision.

CHIEF JUSTICE