Police v Amituanai [2016] WSSC 165 (2 September 2016)

IN THE SUPREME COURT OF SAMOA
Police v Amituanai [2016] WSSC 165

Case name:	Police v Amituanai
Citation:	[2016] WSSC 165
Decision date:	02 September 2016
Parties:	POLICE and GRACE AMITUANAI, female of Vailele-Uta and Faatoia (Accused)
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:	The accused is convicted of the charge of burglary and sentenced to 80 hours of community work with the victim’s music school. For the charge of theft, the accused is convicted and sentenced to 20 hours of community work with the victim’s music school. Both sentences of community work to be served concurrently.
Representation:	O. Tagaloa for Prosecution Accused unrepresented
Catchwords:	Burglary – theft – first offender – apology – pre-meditation – non-custodial sentence
Words and phrases:	Stolen goods not recovered
Legislation cited:	Crimes Act 2013 ss. 33; 161; 165(b); 174
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

GRACE AMITUANAI female of Vailele Uta and Faatoia
Accused

Counsel:
O. Tagaloa for Prosecution
Accused unrepresented

Sentence: 2 September 2016

S E N T E N C E

The charge

1. The accused appears for sentence on two joint charges; one of burglary pursuant to sections 174 and 33 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and theft pursuant to sections 161, 165(b) and 33 Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. On 10 August 2016, the date of trial, she was granted leave to change her pleas from not guilty to guilty.

The offending

3. The Prosecution summary of facts admitted by the accused says that on or about 5 November 2016 at about 11am, the accused and her co-accused made a plan to go and check out the music school. The music school is at Vailele and is owned by a retired teacher. The accused then gave her co-accused surgeon gloves to wear to ensure that they do not leave behind fingerprints. They all then walked to the music school. Three of the co-accused then went into the music school while the accused and one other waited below the house. The three co-accused brought items out of the music school and piled them beside the accused for safe keeping. The items taken were;
   • 6 headphones ;
   • 2 ukuleles;
   • 2 recorders;
   • 1 flute;
   • 1 clarinet;
   • 2 sustain pedals;
   • 1 multi-plug, 3 wires for adapters and 3 iPod wires;
   • 4 sets of glasses.
4. The total value of the stolen items is SAT$4082.00. All items belonged to the victim.
5. The victim discovered the break in at the music school on 5 November 2016.
6. None of the stolen items have been recovered.

The accused

7. According to the pre-sentence report, the accused is 19 years old from Vailele. She is married with no children and stays at home doing family chores.
8. Her education ended after Year 10 when she left school on her own accord.
9. Her mother and village mayor remain supportive of her. Her mother has expressed her extreme disappointment with the accused.
10. The accused tells Probation that she took the ukulele and flute to her home. In the evening when her husband arrived home from work, he noticed the items and instructed her to return the items. The following day, she returned the items to one of the co-accused.
11. The accused is a first offender.

Victim

12. The victim impact report provided to the Court says that the victim is the owner of the music school. The music school was renovated and started in 2012. The school was then closed due to her commitments to her husband’s political career.
13. The victim tells of the emotional stress and depression she suffered due to this offending. Music is her passion and career and when she retired from teaching, she purchased all her equipment to continue teaching music. The accused has stolen from her and all others with a passion to learn music as she is unable to teach music now.
14. She says that the accused has apologised to her and she has accepted the apology and has offered to counsel the accused and offer her free music lessons.

Aggravating features of the offending

15. It is aggravating as Prosecution submits, that the offending was premeditated. The accused and other co-accused got together and planned their offending.
16. It is also aggravating that the property stolen was valuable and none of the properties were recovered.
17. The effects on the victim and the flow on effects of this offending is an aggravating factor. Not only was the victim affected but also people wanting to learn music.

Mitigating factors

18. It is mitigating that the accused has apologised and the victim has accepted the apology.
19. I take into account the victim’s age, being 19 years old.
20. The accused will be given some credit for her belated guilty plea.

Prosecution Submissions

21. Prosecution is seeking a sentence of supervision for 12 months and 6 months community service.

Discussion

22. Probation has recommended a community based sentence of supervision and community service.
23. Before I sentence the accused, I need to mention the husband of the accused. He came back from working and told the accused to return the items she had. After doing an honest day’s work, he has returned to discover that his wife had committed a crime. The accused needs to consider this and the effect it would have had on her husband.
24. The other issue worth mentioning is the attitude of the victim. Her attitude is to be commended. Despite suffering a huge financial and emotional loss, she has offered to play a part in the rehabilitation of the accused and co-accused.
25. Having considered all the circumstances of this offending, I have decided to impose a non-custodial sentence. The accused is warned that this is the last time that she will be given a sentence like this. She is to use this opportunity wisely to sort out her life, concentrate on her young family and think of the effects that her actions have had on the lives of others.

Sentence

26. The accused is convicted of the charge of burglary and sentenced to 80 hours of community work with the victim’s music school.
27. For the charge of theft, the accused is convicted and sentenced to 20 hours of community work with the victim’s music school.
28. Both sentences of community work to be served concurrently.
    

JUSTICE TUALA-WARREN