Police v Mose [2016] WSSC 93 (6 June 2016)

SUPREME COURT OF SAMOA
Police v Mose [2016] WSSC 93

Case name:	Police v Mose
Citation:	[2016] WSSC 93
Decision date:	6 June 2016
Parties:	POLICE v MOKE MOSE male of Salesatele.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEILANI TUALA-WARREN
On appeal from:
Order:	- Convicted and sentenced to 7 months imprisonment. Any time that he has spent in custody is to be deducted from that sentence.
Representation:	A Tumua for prosecution Accused in person
Catchwords:	Sentence – burglary – theft –aggravating features – mitigating features – starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 S174(1, (2), ,s161,S165(d)
Cases cited:	Rio v Police [2011] NZHC 1002 Police v Ajawas [2013] WSSC Police v Sauiluma Tufamatua Police v Aleni [2016] WSSC
Summary of decision:

SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MOKE MOSE male of Salesatele
Accused

Counsel:
A. Tumua for Prosecution
Accused Unrepresented

Sentence: 6 June 2016

S E N T E N C E

The charge

1. The accused is 24 years old from Salesatele. He appears for sentence on two charges of burglary, contrary to s.174 (1) and (2) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and two charges of theft pursuant to ss 161 and 165(d) Crimes Act 2013 which carry a maximum penalty of 1 year imprisonment. He pleaded guilty to the charges on 2 May 2016.

The offending

2. The Prosecution summary of facts admitted by the accused says that on 7 January 2016 at around 9am the accused went to the victim’s home and saw that no one was home. He then entered the victim’s home through the back door and went inside. When inside he took the one bottle of champagne valued a $78.00 and one 3lb pacific corned beef valued at $41.00.
3. The total value of the stolen goods is $119.00.
4. On 19 January 2016 at around 11am, the accused again went to the victim’s home and entered it when no one was home. He took the following items from the victim’s bedroom;
   1. One bottle of red label whiskey valued at $87.00;
   2. One bottle of niu vodka valued at $56.00;
   3. One bowl of noodles valued at $3.40;
   4. One devondale milk valued at $4.50;
   5. One corned beef valued at $5.00; and
   6. $60 coins.
5. The total value of the goods stolen is $215.00.

The accused

6. As shown in the pre-sentence report, the accused is 24 years old. He is the eldest of four children and was adopted by his maternal uncle at 5 years old. He completed school at Year 12 and has had one job for one year with Craigs Bakery. He says he stopped working as he got tired. He now works on the plantation which is their family’s source of income.
7. He has previous convictions from 2014 for four charges of burglary and four charges of theft.

The victim

8. There is no victim impact report. The summary of facts says that the victim is 44 years old, from Salesatele. He is single and works for Samoa Ports Authority at Matautu.
9. It is clear from the pre-sentence report that there has been no reconciliation.

Aggravating features of the offending

10. Prosecution submits that an aggravating feature is that the accused invaded the home of the victim. I agree that this is an aggravating factor even if no one is at home. It invaded the victim’s sense of security and privacy. It appears from the New Zealand cases ases that hntry ntry or entry into a private dwelling house is an aggravating factor relating to the offending, for example, Rio v e [2011] NZHC 1002, para [27]. This is also the position of this Court in Police v Ajawas [2013] WSSC 49 (31 July 2013).
11. Another aggravating feature is that the accused invaded the victim’s home twice. He got away with it the first time and decided to offend again, entering the same victim’s home and taking property which did not belong to him. The blasé way in which the accused entered the victim’s home both times in broad daylight is telling of how unconcerned he was with his offending.
12. I accept that he planned the second offence and this is aggravating.

Aggravating features in respect of the offender

13. It is an aggravating feature in respect of the accused that he has previous convictions in 2014 for similar offences, namely burglary and theft.

Mitigating Factors

14. The only mitigating factor is his early guilty plea to the charges.

Discussion

15. Probation in its pre sentence report has refrained from making a recommendation as to sentence.
16. Prosecution submits that burglary and theft involving the amount of less than $500.00 attracts non-custodial sentences and cites the case of Police v Sauiluma Tufamatua (16 September 2014) as an authority. In that case the accused was sentenced to 7 months supervision for one charge of burglary and one charge of theft. 7.
17. In this case, the accused offended twice, within a short period of time and upon the same victim.
18. Given the nonchalant way in which he offended, it is important that the Court holds him accountable for his actions and denounce his behaviour. The circumstances of his offending despite the value of the goods being less than $500.00, reflect a disregard for the law on his part which is of concern to the Court. I believe this warrants a custodial sentence. He has also appeared before on similar charges which shows a lack of remorse on his part.
19. I have decided that in line with Police v Aleni [2016] WSSC 59( 27 April 2016) the totality principle will be applied in this case given the proximity of time between the two sets of offending which consist of the same kind of offences, burglary and theft.
20. I take the starting point for the two burglary charges as 6 months imprisonment. I will add 4 months for his previous convictions which takes the starting point to 10 months imprisonment. I will deduct 3 months or 1/3 for the early guilty plea. That leaves 7 months. I will make the sentences on the two burglary charges concurrent. I will then make the two charges of theft concurrent on the sentence of the burglary charges.

Sentence

21. For the burglary of the victim’s home on 7 January 2016, the accused is convicted and sentenced to 7 months imprisonment.
22. For the burglary of the victim’s home on 19 January 2016, the accused is convicted and sentenced to 7 months imprisonment.
23. For the theft of items on 7 January 2016, the accused is convicted and sentenced to one month imprisonment.
24. For the theft of items of 19 January 2016, the accused is convicted and sentenced to one month imprisonment.
25. All the above sentences to be concurrent.
26. The accused will therefore serve a total sentence of 7 months imprisonment. Any time that he has spent in custody is to be deducted from that sentence.

JUSTICE TUALA-WARREN