Police v Saleupolu [2016] WSSC 21 (4 February 2016)

IN THE SUPREME COURT OF SAMOA
Police v Patrick SALEUPOLU & Anor [2016] WSSC 21

Case name:	Police v Patrick SALEUPOLU & Anor
Citation:	[2016] WSSC 21
Decision date:	04 February 2016
Parties:	Police (informant) and Patrick SALEUPOLU and Benjamin Ituniu Senetenari SALIMA, males of Vailele (defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The defendants are convicted and sentenced to 10 months’ supervision with the following conditions: attend any educational programs on the use of alcohol as directed by Probation; attend youth groups and church activities in their village; to stay away from any shops or places of business in Vailele and surrounding areas from 9pm-7am. to carry out 40 hours’ community service.
Representation:	Ms Ioane & Mr Tumua for the Prosecution Defendants in Person
Catchwords:	intentional damage – theft – burglary – first offenders – non-custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss 174, 184(2), 161, 165(d)
Cases cited:	Police v Mataafa Seiuli Lapana
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

PATRICK SALEUPOLU AND BENJAMIN ITUNIU SENETENARI SALIMA,
both males of Vailele
Defendants

Counsel:
Ms Ioane & Mr Tumua for the Prosecution
Defendants in Person

Date: 04 February 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The two defendants (charged with a third defendant) appear for sentence on the charges of intentional damage, burglary and theft committed at Vailele on Saturday 28 November 2015. The offences carry the following penalties:
   • burglary: maximum 10 years’ imprisonment under s 174 Crimes Act 2013;
   • intentional damage: maximum seven years’ imprisonment under s 184(2);
   • theft: maximum one year imprisonment under ss 161 and 165(d).
2. The defendants confirmed the summary of facts by prosecution as read out to them. The pre-sentence report obtained from each defendant is consistent with the summary of facts of what took place which was:
   • On Saturday, 28 November 2015 the defendants were drinking in front of a restaurant at Vailele owned by the complainant, Wayne Wu. Later on in the night when the restaurant closed and the complainant went home, the defendants were hungry and decided to break into the restaurant for food.
   • The defendant, Patrick Saleupolu, forcibly pushed the restaurant door and broke the door knob. The defendants went in and removed food to the value of $302.00.
   • The complainant went in the next morning, saw what happened and reported the matter to the police.
3. Both defendants and complainant are from Vailele. The defendant, Patrick Saleupolu, is 20 years’ old, single and works at their family canteen at Maluafou College. The pre-sentence report says that Patrick reached Year 13 level at St Joseph’s College and after Year 13 attended the Punaoa Technical School whereby he studied to become a mechanic but an accident saw him not finishing his training.
4. The defendant, Ituniu Senetenari, is 22 years’ old, single and unemployed. Ituniu reached Year 13 level like Patrick. He finished school and now works on the family plantation. Ituniu’s father told probation that Ituniu’s problem is alcohol and mixing with the wrong crowd.
5. The pre-sentence report and summary of facts note that alcohol was involved.
6. The victim or complainant is Wayne Wu, also of Vailele.
7. There was pre-meditation on the defendants’ part. They knew that the complainant had gone home when they decided to break into the restaurant for food.
8. In the course of breaking into the restaurant they damaged the door knob.
9. The value of food stolen is quite substantial and would mean a lot of food the defendants took and consumed.
10. There is always a high risk of damage to any property broken into or burgled as that would be how a person gains entry into a house to burgle and steal from. So one could say that the intentional damage charge in this offending is the aggravating part of the burglary committed.
11. Both accused are first offenders. I do not place much weight on their presumably previous good characters as I would on an accused that is twice their age. However, their relative young age of 20 and 22 years’ would be taken into account as a mitigating factor.
12. The victim has confirmed in the pre-sentence report that the matter has been resolved by way of an apology and that both accused have fixed the door knob that was damaged and wished for the matter to be withdrawn.
13. Both accused have pleaded guilty at the earliest opportunity and would therefore be entitled to a 1/3 discount in their sentence.
14. The prosecution has referred the Court to the case of Police v Mataafa Seiuli Lapana as of similar circumstances and whereby although the accused was a first offender, he was still sentenced to imprisonment. The main difference between the above case and the one to be sentenced is the relationship of the accused in the Police v Lapana case to the victims was one of employee – employer therefore there was a breach of trust when the accused (security) whose duties is to protect and safeguard the victims property stole from the victims.
15. The prosecution always strongly advocate for an imprisonment term to be imposed where burglary and theft offences are committed. Their view is that the offences are so prevalent that the only way to deter people from committing these offences is by way of imprisonment; yet prosecution does not provide any data or statistics to support this view that they do so adamantly advocate. As I have said in other sentences – deterrence is not only by way of imprisonment.
16. A term of imprisonment in the circumstances of this offending, in my view, does not warrant a term of imprisonment.
17. The defendants are convicted and sentenced to 10 months’ supervision with the following conditions:
    1. attend any educational programs on the use of alcohol as directed by Probation;
    2. attend youth groups and church activities in their village;
    3. to stay away from any shops or places of business in Vailele and surrounding areas from 9pm-7am.
    4. to carry out 40 hours’ community service.
       

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Laulusā Justice Mata Tuatagaloa