Police v Tualima [2016] WSSC 178 (14 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Tualima[2016] WSSC 178

Case name:	Police v Tualima
Citation:	[2016] WSSC 178
Decision date:	14 March 2016
Parties:	POLICE (Prosecution) LAUITITI TUALIMA, male of Satapuala. (Defendant) AND FAIGAME VAITOELAU also known as USUGAFONO VAITOELAU, male of Sapunaoa Falealili. (Second Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	F Ioane for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LAUITITI TUALIMA, male of Satapuala.
First Defendant

AND:

FAIGAME VAITOELAU also known as USUGAFONO VAITOELAU, male of Sapunaoa Falealili.
Second Defendant

Counsel: F Ioane for prosecution
Defendant unrepresented

Sentence: 14 March 2016

SENTENCE

1. The defendants are inmates of Tafaigata Prison. They are serving terms for various criminal offences. They are veteran offenders and are senior professors of Tafaigata University. These charges arise out of offending they committed between 28 November 2015 when they broke out of prison and the 02^nd of December 2015 when they were recaptured by the police at Malololelei.
2. Over this five day period the first house they broke into on 28 November 2015 was at Aleisa about 8:00 pm at night. I take the facts from the police summary of facts which both defendants have accepted. That says they entered the house, the home of the first complainant who is a 42 year old female of Laulii. She was not at home at the time but her 25 year old male gardener was. He was inside the house watching TV. Faigame entered the house through the back door with a machete and put the machete to the neck of the gardener. The gardener grabbed hold of the knife and the pair began struggling. Lautiti saw what was happening and joined in. He grabbed a hammer and the two of them then assaulted the gardener.
3. The victim sustained multiple injuries to his chest and abdominal wall as well as a 5cm laceration to the front of the head. His injuries are consistent with a blow from a hammer to the front of the head as well as blows to his chest and stomach area. The two men then tied the gardener to the chair and they stole a number of cell phones as well as properties worth over $600 from the house.
4. Summary also refers to damage to various properties of the house and its furniture. Even though Lauititi disputed this it is clear the two men acted together and therefore they are responsible for the actions of each other. By law they are responsible for their joint actions.
5. The next day 29 November 2015 the second break in occurred. This time at about 11:00 pm in the house of the third complainant at Siusega. As the defendants passed the house they noticed no one was home and broke into it. According to the summary it was Faigame who damaged the sliding door to gain access, entered the house and took various items of jewellery, perfumes and other properties belonging to the third complainant. Total value of those properties over $1,300.00. Value of the sliding door that was damaged is given as $1,500.00.
6. The third incident occurred in the early morning hours of the next day 30 November 2015 when they entered the house of the Parish Priest of the Catholic Congregation at Siusega. The Priest was asleep at the time and the defendants took his I-phone as well as various items of food. Total value of properties taken over $3,800.00.
7. The defendants then left the Siusega/Aleisa area and turned up to Malololelei. The fourth incident involved a break in of the house belonging to the fifth complainant a 40 year old female. The defendants did this in the early morning hours of 02 December 2015. Faigame stood guard and Lauititi entered the house. At that time the complainant was at home asleep. The defendant Lauititi damaged the front door in gaining entrance to the house and according to the summary he rummaged through the suitcase but there is no mention of any materials taken.
8. During the five days spree, total value of properties stolen was over $5,800.00 and properties damaged belonging to these various people totalled over $6,000. 00. Fortunately the defendants were apprehended by the police on the 02^nd of December 2015 and returned to Tafaigata Prison where they are continuing to serve lengthy sentences.
9. In mitigation both defendants have told the court they are sorry for what they did and that they did so out of “vaivaiga” (weakness) and matters like that. They also say they are tired of serving imprisonment time in Tafaigata. But what the defendants must understand and I am sure they do understand is every time they break out and do this sort of thing they will add to their prison term. Their future is in their own hands, if they are tired of prison terms stop doing this. I will sentence the defendants in terms of each incident.
10. The first incident is the most serious. It involves Faigame putting a knife to the throat of the gardener and Lauititi using a hammer to inflict injuries on him. In respect of that matter they have been charged with one count of aggravated burglary, one count of assault with intent to rob and one count of aggravated robbery. There is a duplication of charges I am dismissing the aggravated burglary and the assault with intent to rob. I will only sentence them on the aggravated robbery. That offence carries a maximum penalty of 14 years in prison.
11. Considering all the circumstances of the matter an appropriate start point would be 10 years in prison. That reflects the fact that weapons were used in the course of this burglary and robbery. In addition to that the start point must be uplifted by one (1) year to 11 years to reflect the bad records that both defendants have. For the defendants guilty plea which has saved the court and the State some time I will deduct 2 years from that start point, leaves 9 years in prison. There are no other factors that allow for any further deductions from your sentences gentlemen.
12. For that aggravated robbery convicted and sentenced to 9 years. On the charge of escape from prison that you have also pleaded guilty to, convicted and sentenced to 1 year, that is cumulative to the 9 years making a total term of 10 years in prison.
13. On the charge of intentional damage this as noted was disputed by Lauititi. It is not clear from the summary what damage the defendants are said to have caused. The summary does not disclose what damage was in fact done in support of this charge I am therefore dismissing it for lack of evidence. Note to the prosecution for the records - merely listing the value of the damage is not proof of damage.
14. That means that for the first incident the defendants will be sentenced to 10 years in prison for what they did.
15. In relation to the second incident, on the charge of burglary, making similar calculations, they will be convicted and sentenced to 3 years in prison. On the charge of theft also 3 years in prison. On the charge of intentional damage also 3 years in prison.
16. In respect of the third incident, this is a burglary involving a home invasion kind of offending. It was done while the complainant was actually in the house asleep. Home invasion offending is more serious than a break-in of an empty house. On the burglary charge convicted and sentenced to 4 years in prison. On the charge of theft 2 years in prison.
17. In respect of the fourth and final incident that is also a home invasion at Malololelei when the complainant was at home asleep. The charge of burglary is again a duplicate charge, that charge is dismissed. But on the charge of aggravated burglary the defendants will be convicted and sentenced to 5 years in prison.
18. In respect of the charge of intentional damage I accept that there is sufficient proof of that in the summary of facts. Convicted and sentenced to 3 years in prison.
19. There are further single charges against the defendants. In respect of Faigame being armed with a dangerous weapon namely the sapelu in respect of the first break-in. In respect of that charge he will be convicted and sentenced to 1 year in prison.
20. In respect of Lauitiiti he also faces a separate charge of being armed with a dangerous weapon namely a hammer in respect of the fourth incident break-in at Malololelei. Also convicted and sentenced to 1 year imprisonment.
21. Masalo a tuu fa’atasi uma ia faaiuga o nei moliaga matuā tele, e ova i le 30 tausaga e nofo sala ai i le falepuipui. Peitai o le fa’amāmā avega lea o le tuu atu mo oulua mo mataupu nei, o le a tuli fa’atasi uma faasalaga ia, vagana le fa’asalaga o le talepega fale muamua lea na lua osofai ma fasi le tamaloa. O le osofaiga lena lea e iai le fa’aiuga a le fa’amasinoga e 10 tausaga, e tatau ona tuli ese’ese le mataupu lena ma lua fa’asalaga lea e tuli i le tiami lenei. Ao isi uma fa’aiuga ma isi uma fa’asalaga o mataupu uma nei e tuli fa’atasi. O lona uiga e 10 tausaga le lua taimi fa’aopoopo mo mataupu uma nei ei luma o le fa’amasinoga i le aso. (10 years imprisonment based on the principle of totality of sentence).
    

JUSTICE NELSON