Police v Ioane [2016] WSSC 130 (8 June 2016)

SUPREME COURT OF SAMOA
Police v Ioane [2016] WSSC 130

Case name:	Police v Ioane
Citation:	[2016] WSSC 130
Decision date:	8 June 2016
Parties:	POLICE v KUENI IOANE aka KUENI MAMOE male of Malie, Palisi and Falealupo
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	Convicted and sentenced to 12 months supervision with the special condition that he attend Toe Afua se Taeao Fou programme, or other alcohol counselling programme as directed by probation.
Representation:	F. Ioane for Prosecution Accused in person
Catchwords:	Burglary – theft –alcohol counseling programme–early guilty plea –aggravating and mitigating features
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 174; 161; 165(b) Community Justice Act 2008 s. 13
Cases cited:	Rio v Police [2011] NZHC 1002 Police v Ajawas [2013] WSSC 49 (31 July 2013) Senior v Police (2000) 18 CRNZ 340
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

KUENI IOANE aka KUENI MAMOE male of Malie, Palisi and Falealupo
Accused

Counsel:
F. Ioane for Prosecution
Accused in person

Sentence: 8 June 2016

S E N T E N C E

The charge

1. The accused is 24 years old from Malie, Palisi and Falealupo. He 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 pursuant to ss 161 and 165(b) Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment. He pleaded guilty to the charges on 11 April 2016.

The offending

2. The Prosecution summary of facts admitted by the accused says that on 12 March 2016, between 4-7am, the accused who had come from Malie to go to his aunty’s house at Palisi, went to the victim’s home, tore the screen wire, removed louvers and entered the victim’s home without authority. He then stole;
   1. One Samsung galaxy 3 cellphone valued at NZD $800.00;
   2. One blue sports back pack valued at SAT$50.00; and
   100. Two Aiwa computer speakers valued at SAT$200.00.
   4. The total value of the stolen goods is NZD $800.00 and SAT$350.00.
   5. He went to his aunty’s home and slept. The next morning one of his cousins used the sports bag and he met someone who recognised the missing bag.

The accused

3. As shown in the pre-sentence report, the accused is 24 years old. He was brought up mainly by his maternal grandparents at Falealupo. He left school in Year 12.
4. He has a de facto partner and she has one child from a previous union. He lives with his partner at her family in Malie. Prior to this offending, he was working as a carpenter earning $350.00 per week. The accused had been drinking alcohol immediately prior to his offending.
5. His partner’s sister, who lives together with them at Malie, told probation that the accused is a supportive member of their family and helped out with many family commitments.
6. The accused has been in custody since the offending and was ordered by this Court on 18 April 2016 to attend Toe Afua se Taeao Fou programme through the Alcohol and Drug Court. The accused tells probation that he was not able to attend as he was told that there was no transport to bring him in from Tafaigata Prison for his programme with probation.
7. He has no previous convictions.

The victim

8. The victim impact report says that the victim is 24 years old, from Palisi. She is single and works at the Ministry of Finance. She says that she no longer feels safe at her house after the accused entered her house and took her property.
9. The cell phone and speakers were recovered but they were damaged and are of no use to her.
10. There has been no reconciliation or apology by the accused.

Aggravating features of the offending

11. Prosecution submits that an aggravating feature is that the accused invaded the home of the victim. I agree. The actions of the accused threatened the victim’s feeling of security and safety. It appears from the New Zealand cases ases that hotry ntry or entry into a private dwelling house is an aggravating factor relating to the offending, for example, Rio v P ] NZHC 1002, para [27]. This is also the positionition of this Court in Police v Ajawas [2013] WSSC 49 (31 July 2013).
12. A second aggravating feature is the impact of the offending on the victim who no longer feels safe in her own home.

Mitigating Factors

13. The accused has expressed remorse in Court. I take that into account.
14. The other mitigating factor is his early guilty plea to the charges.

Discussion

15. Probation in its pre sentence report has recommended a community based sentence.
16. Prosecution also recommends a community based sentence. Prosecution submits that the accused is a ‘first time burglar’ as categorised in Senior v Police (2000) 18 CRNZ 340, and as such a sentence of imprisonment may be imposed but frequently that was not the case.
17. Having taken into account the aggravating and mitigating features, I find that a non-custodial sentence is appropriate in this case. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation an reintegration of the offender. Section 16 of the same Act states that the Court may impose such special condition or conditions related to the rehabilitation or integration of an offender as the Court thinks necessary.
18. I am convinced that the accused should be given an opportunity to attend rehabilitation programmes for alcohol counselling. His offending took place after drinking alcohol. While this is no excuse, this offender was otherwise gainfully employed and lived with his partner at her family. He will be given an opportunity to prove to the Court that this offending was out of character and that this is the last time he commits this type of offence.

Sentence

19. For both charges the accused is convicted and sentenced to 12 months supervision with the special condition that he attend Toe Afua se Taeao Fou programme, or other alcohol counselling programme as directed by probation.

Addendum

20. The Commissioner and Ministry of Corrections will be well advised to ensure that those in custody are able to comply with orders of this Court. Prosecution to ensure that this direction is communicated to the Commissioner and Ministry of Corrections.

JUSTICE TUALA-WARREN