Police v Elama [2016] WSSC 185 (21 September 2016)

THE SUPREME COURT OF SAMOA
Police v Elama [2016] WSSC 185

Case name:	Police v Elama
Citation:	[2016] WSSC 185
Decision date:	21 September 2016
Parties:	POLICE (Prosecution) v FITI MINO ELAMA male of Nonoa Saleimoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	The accused is convicted of the offences of burglary, intentional damage, theft and assault and sentenced to 12 months supervision for each offence. These sentences of supervision will be served concurrently. Special conditions of this sentence of supervision are; he is to attend the drugs and alcohol 6 weeks programme with Probation, he is to refrain from consuming alcohol and he is perform 40 hours of community work as directed by his Village Council.
Representation:	F.Ioane for Prosecution Accused in person
Catchwords:	Burglary - intentional damage – theft – assault - impose a non-custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 section174(1) - section184(2) Crimes Act 2013 section184(2) 165(c) section 123
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

FITI MINO ELAMA male of Nonoa Saleimoa
Accused

Counsel:
F.Ioane for Prosecution
Accused in person

Sentence: 21 September 2016

S E N T E N C E

The charge

1. The accused appears for sentence on 4 charges, one charge of burglary pursuant to s174(1) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment, one charge of intentional damage pursuant to s184(2) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment, one charge of theft contrary to s161 and 165(c) Crimes Act 2013, which carries a maximum penalty of 2 years imprisonment and one charge of assault pursuant to section 123 Crimes Act 2013 which carries a maximum penalty of 1 year imprisonment.
2. The accused was granted leave on 29 August 2016 to vacate his not guilty pleas and these were substituted by guilty pleas.

The offending

3. According to the summary of facts admitted by the accused, on 30 December 2015 at around 11 pm, the accused went to the first complainant’s shop which was unattended. He damaged a timber window and entered the shop. He took from the shop a cell phone valued at SAT$800.00, and cash of SAT$200.00. The value of the damaged window is SAT$84.00.
4. The second complainant is the victim of an assault by the accused. The second complainant saw the accused inside the first complainant’s shop and told him to leave. When the accused came out of the shop, he punched the second complainant on her shoulder and fled.

Background of the accused

5. The accused is 27 years old, married with two children and works as a carpenter earning $180.00 per week.
6. The accused told Probation that the offending occurred after a drinking session with his cousin during which they drank one bottle of vodka. He went to the shop to buy more beer and that is when the offending occurred.
7. The father of the accused described the accused as a hard working and reliable father and husband. He said he relies financially on the accused as he is the eldest of his children
8. The father of the accused confirms that there has been reconciliation with both victims and he and the accused gave them $300.00.
9. The accused is a first offender.

The Victims

10. There are two victims of the offending by the accused. The first victim is the owner of the shop, and the second victim is the victim of the assault.
11. There were no victim impact reports provided to the Court, and the Court has had to gage the victims’ positions from the probation report.
12. The probation report says that the owner of the shop has left the country.

The Aggravating Features of the Offending

13. It is aggravating that there are two victims of the offending by the accused. One victim lost financially in having to repair the window broken by the accused and the other suffered physical violence, albeit a minor assault.
14. I find it aggravating that the victim of the assault was a female. There is no excuse for his behaviour, even if the accused was intoxicated.

Mitigating features of the offending

15. It is a mitigating feature of the offending that both the cell phone and the $200.00 were returned.

Mitigating Factors

16. I take into account that the accused has paid back the value of the damaged window.
17. I also take into account his belated guilty pleas for which he will be given some credit.

Discussion

18. Prosecution recommends a sentence of supervision. Probation submits that a community based sentence is suitable.
19. Having considered the aggravating factors relating to the offending and the mitigating factors personal to the accused as well as taking into account the sentencing objectives of retribution, deterrence, the need for protection of society, and rehabilitation, I have decided that it is appropriate to impose a non-custodial sentence in this case.
20. The Court will address the cause of his offending by sending him to a psycho-education Alcohol and Drugs programme. The Court will focus on the rehabilitation of this accused but if he chooses to reoffend again, a sentence of imprisonment will be a very real possibility.
21. I am satisfied that a sentence of supervision will reduce the likelihood of further offending by the accused.

Sentence

22. The accused is convicted of the offences of burglary, intentional damage, theft and assault and sentenced to 12 months supervision for each offence.
23. These sentences of supervision will be served concurrently.
24. Special conditions of this sentence of supervision are; he is to attend the drugs and alcohol 6 weeks programme with Probation, he is to refrain from consuming alcohol and he is perform 40 hours of community work as directed by his Village Council.

JUSTICE TAFAOIMALO TUALA WARREN