IN THE SUPREME COURT OF SAMOA
Police v Faulalo [2016] WSSC 187

Case name: 	Police v Faulalo	
		
Citation: 	[2016] WSSC 187	
		
Decision date: 	08 August 2016	
		
Parties: 	POLICE (Prosecution)
FILI FAULALO male of Fagalii and Tafaigata Prison. (First Defendant) AND TUI SAMUELU male of Nuu-fou and Tafaigata Prison. (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:	On the charge of burglary convicted and sentenced to 3½ years in prison, cumulative term. 

On the charge of theft I accept the prosecution submission of a 2 years start point upgraded to 3 years for your record.  I will deduct the same things 9 months for your guilty plea and 3 months for the partial restitution, that is a period of 12 months leaves 2 years in prison.  

On the charge of theft convicted and sentenced to 2 years concurrent to the burglary term.  

Fili you are also charged with possession of marijuana leaves equivalent to three (3) marijuana cigarettes. Those were found on you upon your arrest by the police.  You pleaded guilty to that charge.  You have no narcotics previous conviction. But from my experience, narcotics burglary and theft are brother and sister offences.  On that charge convicted and sentenced to one (1) month in prison, cumulative term.	
		
Representation: 	L Sio 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:

	FILI FAULALO male of Fagalii and Tafaigata Prison.
First Defendant

AND:

	TUI SAMUELU male of Nuu-fou and Tafaigata Prison.
Second Defendant

Counsel:	L Sio for prosecution
Defendant unrepresented

Sentence:	08 August 2016

SENTENCE
1.	The defendants are veteran offenders serving extensive prison terms for burglary and theft.  They told me this morning they both have about eight (8) plus years of prison time left.  Fili is according to the police summary of facts 24 years of age and Tui 22 years of age. While out on weekend parole they burgled the house of the 56 year old male complainant of Siusega.  It occurred on Sunday, 28 February 2016 at about 2:00 o’clock in the morning. At the time the family were asleep in the house excluding the complainant who was elsewhere on an errand. 
2.	The smaller of the two defendants Fili Faulalo entered the house and stole a number of items: a Bluesky Samsung S5 mobile phone valued around $3,000, a Digicel Alcatel phone valued at about $180 plus the sum of $2,000 from the purse of the complainants daughter.  The complainants daughter awoke and chased Fili around the house.  He exited the house and together with Tui the two of them departed the property. Tuis role in this burglary and theft seems to have been keeping watch outside the house while Fili was inside doing the actual stealing.  
3.	The two men then went on a shopping spree at the market later that morning, leading to the police apprehending them in a taxi with groceries and various other items purchased with the $2,000.  Police file shows that $1,085.80 was recovered by the police and returned to the complainant.  Police also gave to the complainant the items that were discovered in the defendants taxi.  There is no estimate of the value of those on file but they seem to be worth at least a few hundred tala. So some of the complainants loss has been mitigated.  
4.	There is no mention in the documents before the court as to whether the phones were recovered by the police and returned.  What cannot be reinstated and restituted is the trauma caused to the complainant and his family.  Only the females member of the family were at home when this burglary occurred.  As the male complainant was absent. The womens statements talk about being in fear for their lives from the perpetrators of the break in.  
5.	The two defendants are classic recidivist burglars. They are no stranger to the courts. Fili has a list of previous convictions dating back to 2004 for burglary and theft.  His record includes 4½ years for robbery in 2010.  Tui is newer to the scene, his list of previous convictions only start in 2013.  
6.	Both men told me this morning they were very drunk when they committed this burglary and theft.  That is why they did it.  The court must totally reject that.  Firstly drunkenness is no excuse for this kind of behaviour.  And secondly Fili was sober enough to be able to identify and take the two phones and the money from the complainants daughters purse while she was sleeping.  
7.	The defendants have also apologised to the court and told me they will not do this again.  Gentlemen you have told the court that before.  I do not believe what you say.  E le mafai ona toe tu’u atu ni avanoa ia oulua Fili ma Tui ona o tulaga matuiā lea ua iai lua solitulafono.  O taimi uma lava lua te faia ai mea fa’apenei, e na o le lua tigaina ai i le toe fa’aopo’opo o nisi fa’asalaga i Tafaigata.  A fa’apea e iai se lua manatu e toe sui lua olaga o se mea lelei lena mea, ae pule a oulua.  A’o le tulaga lea e iai, o taimi uma lava lua te faia ai mea fa’apenei, e tasi a le iuga o le toe fa’aopoopo o lua tausaga i le toese. Sa’o a le upu o le lua lumanai o loo i o oulua lava aao.  
8.	A fa’apea e tuli fa’alelei le lua taimi, magalo mai le palola, omai toe taumafai e fa’aāoga le olaga e fai ai se mea lelei e sili atu ai lena nai lo le lua mea lea e fai.  A o le lua mea lea e fai e leai se lumanai. There is no future o lona uiga lua te forever amene ai lava i Tafaigata pe a fa’apea o le mea lea e fai oulua o le omai i tua ma o talepe fale.  Ae pule oulua, o le tulaga o le galuega a le Fa’amasinoga e le mafai ona tuua. Ma mo le mataupu lene e tatau ona fa’aopoopo ni taimi i lua faasalaga, ae iai foi fa’amāmā avega e mafai ona tu’u atu.    
9.	The maximum for burglary is 10 years in prison; the maximum for theft is 7 years in prison.  As explained to the defendants both are liable for the acts of each other in this burglary and theft.  I accept the prosecution submission the start point for sentence should be 4 years in prison for you both for the charge of burglary.  For you Fili because of your bad record that must be increased to 5 years. To be deducted from that is one-quarter of the term for your guilty plea. That is a deduction of 15 months, leaves a balance of 45 months.  
10.	I will deduct a further 3 months to reflect the partial restitution and your apology to the court this morning which shows some remorse genuine or otherwise, leaves a balance of 42 months.  No other deduction can be made from your sentence for this matter Fili.  
11.	On the charge of burglary convicted and sentenced to 3½ years in prison, cumulative term. 
12.	On the charge of theft I accept the prosecution submission of a 2 years start point upgraded to 3 years for your record.  I will deduct the same things 9 months for your guilty plea and 3 months for the partial restitution, that is a period of 12 months leaves 2 years in prison.  
13.	On the charge of theft convicted and sentenced to 2 years concurrent to the burglary term.  
14.	Fili you are also charged with possession of marijuana leaves equivalent to three (3) marijuana cigarettes. Those were found on you upon your arrest by the police.  You pleaded guilty to that charge.  You have no narcotics previous conviction. But from my experience, narcotics burglary and theft are brother and sister offences.  On that charge convicted and sentenced to one (1) month in prison, cumulative term.
15.	O lona uiga mo oe Fili o lou fa’asalaga mo mataupu uma nei o le aofai e 3½ tausaga lou fa’asalaga faaopopo ma le tasi masina mo laau fa’asaina. 
16.	Mo oe Tui e 4 foi tausaga lea e amata ai le fua a le Fa’amasinoga, ae ona e le telē fa’amaumauga o au solitulafono pei o Fili, e siitia la na o le 3 masina mai le 4 tausaga lena maua ai le 4 tausaga ma le 3 masina.  Toese le 12 masina mo lau ioe i le solitulafono, toese ma le 3 masina mo mea ia na toe maua e le sa tagi, totoe ai le 36 masina.  O lona uiga mo lau solitulafono o le talepe fale ua fa’amaonia lau solitulafono e 3 tausaga lou taimi fa’aopoopo.  
17.	Mo leisi moliaga o le gaoi e 2 tausaga lou fa’asalaga ae tuli fa’atasi ma le 3 tausaga.  O lona uiga o le taimi fa’aopoopo o oe ia na o le 3 tausaga.  Fa’afetai ua maea le lua mataupu.

JUSTICE NELSON