Police v Aleni [2016] WSSC 59 (27 April 2016)

SUPREME COURT OF SAMOA
Police v Aleni [2016] WSSC 59

Case name:	Police v Aleni
Citation:	[2016] WSSC 59
Decision date:	27 April 2016
Parties:	POLICE v VAVAO TAUPAU ALENI male of Fagali-uta
Hearing date(s):	27 April 2016
File number(s):	S360/16-362/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused will therefore serve a total sentence of 9 months imprisonment. Any time that he has already spent in custody is to be deducted from that sentence.
Representation:	O Tagaloa for accused Accused in person
Catchwords:
Words and phrases:	Sentence – starting point – burglary – theft – intentional damage – escape from lawful custody – aggravating and mitigating features
Legislation cited:	Crimes Act 2013 s.174, s.161(1), s.165 (b);
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

S360/16-362/16

BETWEEN

P O L I C E
Prosecution

A N D

VAVAO TAUPAU ALENI male of Fagalii-uta and Leauvaa.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 27 April 2016

S E N T E N C E

The charges

1. The accused Vavao Taupau Aleni is a 21 year old male of Fagalii. He appears for sentence on two charges of burglary, contrary to s.174 of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment; one charge of causing property damage with intent, contrary to s.184 of the Act, which carries a maximum penalty of 7 years imprisonment; one charge of theft, contrary to s.161(1) of the Act, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b); one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of one year imprisonment pursuant to s.165 (d); and one charge of escape from lawful custody, contrary to s.143 of the Act, which carries a maximum penalty of 2 years imprisonment. To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts, on 31 January 2016 the first complainant and his family who live at Fagalii, spent their weekend at their other home at Vaoala leaving their house at Fagalii unattended. The first complainant also left his other car at their house at Fagalii.
3. While the first complainant and his family were away, the accused entered their house on 2 February 2016 without permission. He then rummaged through the belongings of the first complainant and his family. When the accused did not find anything of value to him inside the house, he came out and went to the first complainant’s car parked outside of the house. He damaged the rear windscreen of the car and stole ten boxes of pharmacare paracetamol tablets valued at $125 each that was inside the car. The value of the damage to the first complainant’s car is $1,000. On 6 February 2016 when the first complainant and his family returned to their house, they discovered that their house had been burgled and their car had been damaged. The matter was then reported to the police.
4. On 13 February 2016 around 9:30pm at night, the second complainant closed his business at Fagalii and went home. Sometime after that, the accused entered the second complainant’s place of business by removing two louvres and stole $10. The next day, the second complainant discovered that someone had broken into his place of business and reported the matter to the police. The police were able to apprehend the accused the next day, 14 February.
5. The accused was taken to the police station where he was interviewed. At the end of the interview, he requested the police if he could get a drink. The police allowed the accused to get a drink but he used the opportunity to escape from the police station.

The accused

6. The accused is single and unemployed. At the time of this offence, his family were staying at Fagalii with his father’s relatives as they had been banished from their village of Leauvaa. The accused at the same time was also serving an 18 months sentence of community supervision for causing grievous bodily harm which will end on 24 May this year.
7. The accused told the probation service that he did not actually commit the burglary and theft offences. It was someone else who did it; his role was to keep a look out. If this is true, the accused is just as guilty as a secondary party for burglary and theft as the principal party who actually committed those offences.
8. The accused also told the probation service that his family has already paid a fine of $1,800 to the village council of Fagalii. This was confirmed by the probation service from the village. This must have been very difficult for the accused’s family whose only income earner is the accused’s older sister.
9. The accused was also referred to the Alcohol and Drugs Court (ADC) for a determination hearing because he has a moderate to serious pattern of binge drinking. The ADC did not consider the accused suitable for the intensive treatment programs of that Court.
10. There are no victim impact reports.

The aggravating and mitigating features

11. There are several aggravating features relating to this offending. In the first place, it involved two separate incidents of burglary and theft committed in the space of seven days in respect of two different complainants from the village of Fagalii. The first incident involved home invasion and causing damage to the rear windscreen of the first complainant’s car. It also involved the theft of ten boxes of pharmacare paracetamol with the total value of $1,250. The value of the damage to the car is $1,000. The second incident involved breaking into a place of business and the theft of $10. The accused was also serving a sentence of 18 months community supervision at the time he committed these offences.
12. In respect of the accused as offender, the mitigating features are the fine of $1,800 paid by the accused’s family to the village council and his guilty plea to the charges at the earliest opportunity.

Discussion

13. I have decided to apply the totality principle in this case given that the two offences of burglary and theft are of the same kind and because of the proximity in time between the two offences. In the course of the first burglary and theft, the accused also damaged the rear windscreen of the first complainant’s car valued at $1,000. On this basis, I will take 18 months as the starting point for sentence in respect of the burglary charges. I will then deduct 6 months for the fine of $1,800 paid to the village council. That leaves 12 months. I will deduct a further 4 months or 1/3 for the early guilty plea. That leaves 8 months. I will make the sentences on the two burglary charges concurrent. I will then make the sentences on the two charges of theft and the charge of intentional damage concurrent on the sentence for the burglary charges.
14. For the charge of escape from lawful custody, I have decided, after careful consideration, to impose a sentence of one month imprisonment to be cumulative.

Result

15. For the burglary of the first complainant’s house, the accused is convicted and sentenced to 8 months imprisonment.
16. For the burglary of the second complainant’s place of business, the accused is convicted and sentenced to 8 months imprisonment.
17. For the theft of items of property from the first complainant’s car, the accused is convicted and sentenced to 8 months imprisonment.
18. For the theft of $10 from the second complainant’s place of business, the accused is convicted and sentenced to one month imprisonment.
19. For the charge of intentionally causing damage to the first complainant’s car, the accused is convicted and sentenced to 8 months imprisonment.
20. All of the above sentences are to be concurrent.
21. For the charge of escape from lawful custody, the accused is convicted and sentenced to one month imprisonment. This sentence is to be cumulative to the above concurrent sentence.
22. The accused will therefore serve a total sentence of 9 months imprisonment. Any time that he has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE