Police v Ah Fook [2017] WSSC 116 (29 August 2017)

SUPREME COURT OF SAMOA
Police v Ah Fook [2017] WSSC 116

Case name:	Police v Ah Fook
Citation:	[2017] WSSC 116
Decision date:	29 August 2017
Parties:	POLICE v JEROME AH FOOK male of Siusega.
Hearing date(s):	28 August 2017
File number(s):	S1089/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:
Representation:	L Sio and A Matalasi for prosecution Accused in person
Catchwords:	Aggravating factors relating to the offending – aggravating factors relating to the accused as offender – Alcohol and Drugs Court – mitigating factors relating to the accused as offender – offending – offender – starting point for sentencing approach – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.174, s.161 and s.165 (b
Cases cited:	Attorney General v Matalavea [2007] WSCA 8; Key v Police [2013] WSCA 3; Police v Faulkner [2007] WSSC 80 Police v Lemalu [2015] WSSC 79
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JEROME AH FOOK male of Siusega.
Accused

Counsel:
L Sio and A Matalasi for prosecution
Accused in person

Sentence: 29 August 2017

S EN T E N C E

The charges

1. The accused appears for sentence on one charge of burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment; and one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b). To both charges, he pleaded guilty at the earliest opportunity.

The offending

2. The accused, as shown from the prosecution’s summary of facts, is serving a term of imprisonment at the Olomanu Juvenile Centre. This offending occurred when the accused was released on a warrant to attend his uncle’s funeral at Vaitele Fou.
3. According to the summary of facts, on 16 April 2017 at around 3am at night, the accused and a friend went to the complainant’s house at Vaitele Fou while the complainant and his family were asleep. They went to the back of the house, removed four louvres of a window, and entered the house. They then stole the following items of property: (a) one black hard drive valued at $500, (b) one purple hard drive valued at $400, (c) one Samsung S3 valued at $500, (d) one OPPO FIS cell phone valued at $600, (e) one LG Flip touch screen phone valued at $500, (f) one laptop valued at $1,500, and (g) a wallet with $70 cash inside. The total value of the items stolen is $4,070.

Referral to the Alcohol and Drugs Court (ADC)

4. After the accused had pleaded guilty to the charges against him, he was referred to the ADC clinician for an assessment because he told the Court that he was under the influence of alcohol at the time he committed the offences for which he is now appearing for sentence. The report from the ADC clinician states that the accused is not eligible for the ADC. The report notes that the accused is currently serving a total sentence of 6 years imprisonment for which he has already served about 4 years. This must be for the various offences for which the accused was convicted and sentenced to prison from 2003 to 2015 as shown from his previous convictions card. Because the accused was found not to be eligible for the ADC, he was referred back to this Court for sentence.

The accused

5. As shown from the pre-sentence report, the accused is now 24 years old and is serving a total sentence of imprisonment for 6 years which will expire on 13 September 2019. He has several previous convictions for burglary and theft and other types of offence like misleading, escape, causing intentional damage, and accessory before the fact.

The aggravating factors relating to the offending

6. The aggravating factors relating to the offending are:
   • (a) total value of the items stolen which is $4,070;
   • (b) home invasion;
   • (c) time of the offending which was around 3am at night;
   • (d) the high degree of planning and pre-meditation that must have been involved;
   • (e) these offences were committed while the accused was released from prison to attend his uncle’s funeral.

The aggravating factors relating to the accused as offender

7. The previous convictions of the accused particularly for burglary and theft are an aggravating factor relating to the accused as offender.

The mitigating factors relating to the accused as offender

8. The only mitigating factor relating to the accused as offender is his guilty plea at the earliest opportunity. Given the accused’s seven previous convictions for burglary and seven previous convictions for theft, one for misleading, and one for escape, I am not able to accept the accused’s expression of remorse as genuine. This is more so because the present offences for which he is appearing for sentence were committed whilst he was released from prison to attend his uncle’s funeral.

Discussion

9. The starting point approach to criminal sentencing has been well established in Samoa: see Key v Police [2013] WSCA 3; Attorney General v Matalavea [2007] WSCA 8; Police v Faulkner [2007] WSSC 80. This approach has been applied in numerous Samoan cases. It was explained in Police v Lemalu [2015] WSSC 79 as follows:
   15. The starting point for sentence approach involves taking into consideration the aggravating and mitigating features relating to the offending in order to determine the starting point for sentence, and then making adjustments up or down to take into account the aggravating and mitigating features relating to the accused as offender. It is therefore important to bear in mind the distinction between the “offending” and the “offender”. The two terms do not mean the same thing.

• 16. The starting point for sentence is first to be determined by taking into account the aggravating features and any mitigating features relating to the offending. This defines the inherent “seriousness” or criminality of the offending.
• 17. Once the starting point for sentence has been determined, for example, 12 months or 2 years, an adjustment is then made upwards to take into account any aggravating features relating to the accused as offender. An example of such aggravating features is previous convictions. When that is done, a reduction or downward adjustment is made to take into account any mitigating features relating to the accused as offender other than co-operation with the prosecution and/or a guilty plea. After that, a further deduction is then made for any co-operation with the prosecution and/or guilty plea by the accused which are also mitigating features relating to the accused as offender. The outcome of this process is the end sentence to be imposed on the accused. The starting point for sentence approach is appropriate where the Court is mindful of imposing a custodial sentence.
• 17. To recapitulate, the starting point for sentence approach involves the following four steps:
  • 1. Step 1 Take into consideration the aggravating and mitigating features relating to the offending in order to determine the starting point for sentence.
  • 2. Step 2 Increase or adjust upwards the starting point for sentence to take into account any aggravating features relating to the accused as offender.
  • 3. Step 3 Deduct or adjust downwards for any mitigating features relating to the accused as offender other than co-operation with the prosecution or a guilty plea.
  • 5. Step 4 Make a further deduction or downward adjustment for any co-operation with the prosecution by the accused and then make a further deduction for any guilty plea by the accused. Co-operation with the prosecution and a guilty plea are also mitigating features relating to the accused as offender but they are only to be taken into account under Step 4. Examples of co-operation with the prosecution is where the accused is willing to give evidence for the prosecution in the trial of a co-accused or to assist the police with their invesion of n of an alleged crime.
• 19. The weight to be given to an aggravating or mitigating feature is a matter for entencing Judge. The outcomutcome of the above process is the end sentence to be imposed on the accused.
• 20. It is to be noted, however, that in New Zealand the starting point approach is seen as involving three steps instead of four. That is because the second step involves taking into account both the aggravating as well as the mitigating features relating to the accused as offender. In my respectful view, it is preferable that the taking into account of any aggravating features relating to the accused as offender should be a separate step from taking into account any mitigating features relating to the accused as offender. This would avoid any possible confusion by taking into account at the same time both the aggravating and mitigating features relating to the accused. It also provides for more clarity.

10. It should be pointed out that the seriousness of the offending is not an aggravating factor relating to the offending as it seems to be suggested by the prosecution. What is to be done is to identify the aggravating factors relating to the offending as well as the mitigating factors (if any) relating to the offending in order to determine the criminality, gravity, or seriousness of the offending. But the seriousness of the offending is not an aggravating factor. In other words, the purpose of identifying the aggravating factors relating to the offending as well as any mitigating factors relating to the offending is to determine the criminality, gravity, or seriousness of the offending. The criminality, gravity, or seriousness of the offending is then the basis for setting the starting point for sentence.
11. Given the aggravating factors relating to the offending in this case, I will take 1 year and 9 months as the starting point for sentence. I will add on 3 months for the previous convictions. That increases the starting point to 2 years. I will then deduct 6 months or 25% for the early guilty plea. That decreases the starting point to 18 months which will be the end sentence.

Result

12. The accused is convicted and sentenced to 18 months imprisonment on each of the burglary and theft charges. Both sentences to be concurrent so that the accused would serve a sentence of 18 months imprisonment for both charges. But this sentence of 18 months imprisonment is to be cumulative on the sentences presently served by the accused.

CHIEF JUSTICE