Police v Maugalii [2017] WSSC 119 (6 September 2017)

SUPREME COURT OF SAMOA
Police v Maugalii [2017] WSSC 119

Case name:	Police v Maugalii
Citation:	[2017] WSSC 119
Decision date:	6 September 2017
Parties:	POLICE v LAFAELE MAUGALII male of Faleula-uta and Toamua.
Hearing date(s):
File number(s):	S1287/16, S1406/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- The accused is convicted and sentenced to 4 months imprisonment on each of the burglary and attempted burglary charges. Both sentences are to be concurrent. That means the accused will serve a total sentence of 4 months imprisonment on both charges. - In respect of the theft charge, the accused is convicted and sentenced to 3 years and 2 months imprisonment. This sentence is to be cumulative on the concurrent sentence of 4 months imprisonment for the burglary and attempted burglary charges. - The accused will therefore serve a total sentence of 3½ years imprisonment on all charges. The time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.
Representation:	L Sio for prosecution Accused in person
Catchwords:	aggravating features of the offending in relation to the burglary and attempted burglary charges -attempted burglary – burglary – theft –offending relating to burglary and attempted burglary charges - mitigating features of the offending in relation to the theft charge – offending relating to the theft charge -– starting point for sentence – sentence – victim in relation to the theft charge -
Words and phrases:
Legislation cited:	Crimes Act 2013, s.174 (1) (a), ss.39 (1) and 174 (1) (a), s.161, s.165 (b).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LAFAELE MAUGALII male of Faleula-uta and Toamua.
Accused

Counsel:
L Sio for prosecution
Accused in person

Sentence: 6 September 2017

S EN T E N C E

The charges

1. The accused appears for sentence on three separate charges; one of burglary, contrary to s.174 (1) (a) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment; one of attempted burglary, contrary to ss.39 (1) and 174 (1) (a), which carries a maximum penalty of 5 years imprisonment; and one of theft, contrary to s.161, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b). The accused had initially pleaded not guilty to the charges but on 15 August 2017 he changed his plea to one of guilty.

The offending relating to burglary and attempted burglary charges

2. The prosecution summary of facts in relation to the charges of burglary and attempted burglary shows that on 22 March 2016 around 10am at Toamua the accused went to the complainant’s enclosed yard, cut the fence using a pair of pliers and entered the yard. He then went to the complainant’s house and tried to open the front door with the pair of pliers. Some of the men of the village of Toamua saw the accused trying to open the front door of the complainant’s house. They captured him and called the police.
3. The charge of burglary relates to the accused cutting the fence and entering the complainant’s yard whilst the charge of attempted burglary relates to the accused attempting to open the front door of the complainant’s house.

The offending relating to the theft charge

4. According to the prosecution summary of facts on the charge of theft, on 24 May 2016 around 3pm the accused went to the complainant’s premises at Vaitele-uta. He saw the complainant’s delivery truck loaded with goods parked at the front of the complainant’s premises. He then stole the truck by driving it away. The value of the truck is $80,000 and the total value of the goods on the truck was $6,515. So the total value of the stolen properties was $86,515.
5. As shown from the pre-sentence report, the accused had been an employee of the complainant for three months before this incident happened. After the accused drove the truck from the complainant’s premises, he went and sold ten boxes of mosquito coils and twenty boxes of canned herrings to another store. He then took the truck and abandoned it at another family’s property at Faleula and walked home. He was met on his way home by the police and the complainant. He was then taken back to where he had abandoned the truck and made to count the goods on the truck in the presence of the complainant. According to what counsel for the prosecution told the Court, it was found that ten boxes of mosquito coils and thirty boxes of canned herrings were missing. However, the accused maintains that he had sold only ten boxes of mosquito coils and twenty boxes of canned herrings.

The accused

6. As shown from the pre-sentence report, the accused would now be 29 years old. He is married with three children. He left school at Year 12. When he left school he worked as a taxidriver until 2013. He then got a job as a delivery man for the complainant. At the time he was arrested, he was working as a busdriver for someone else.
7. The accused’s wife told the probation service that her husband is a humble and trustworthy person and a supportive father to his family and children. The accused’s father also told the probation service that his son is a good and loving person.

The victim in relation to the theft charge

8. The victim in relation to the theft charge is a Chinese who operates a company at Vaitele-uta. As a result of this offending, he has lost all trust in his employees. He has spent more money on the security of his premises in terms of locks and security cameras. His relationship with some of his customers has also been affected because they have blamed him for not looking after his truck properly and for allowing the police to investigate them.

The aggravating features of the offending in relation to the burglary and attempted burglary charges

9. The aggravating feature of the offending in relation to the charge of burglary is the damage to the complainant’s fence which the accused cut with a pair of pliers to enter the complainant’s yard. There is no aggravating feature of the offending in relation to the charge of attempted burglary as the accused was captured whilst trying to open the front door of the complainant’s house.

The mitigating features of the offending in relation to the theft charge

10. There is no mitigating feature of the offending relation to theft except that the truck was found and returned to the complainant.

The aggravating features relating to the accused as offender in relation to all charges

11. The accused’s previous conviction for theft of an animal, namely, a cattle beast in 2015 is an aggravating feature relating to the accused as offender in respect of all charges.

The mitigating features relating to the accused as offender in respect of all charges

12. Except for the accused’s guilty plea, there is no other mitigating feature relating to the accused as offender. I do not accept the testimonials from the accused’s father and wife which suggest that the accused had been a person of good character given his previous conviction for theft in 2015.

Discussion

13. Given that the burglary and attempted burglary with which the accused has been charged were committed on 22 March 2016 and the theft was committed on 24 May 2016, I have decided to consider the burglary and attempted burglary charges separately from the theft charge and to impose separate sentences for the separate offendings.
    • (a) Burglary and attempted burglary
14. Having regard to the aggravating features relating to the burglary charge, I will take a starting point of 4 months for the totality of the burglary and attempted burglary charges as both offendings were part and parcel of the same incident. I will add on one month for the previous conviction as the aggravating feature relating to the accused as offender. That increases the starting point to 5 months. I will then deduct one month or 25% for the guilty plea which is the mitigating feature relating to the accused as offender. That leaves 4 months. This is the end sentence for these charges.
    • (b) Theft
15. Having regard to the aggravating and mitigating features relating to the theft offending, I will take 4 years as the starting point for sentence. I will add on 2 months for the previous conviction. That increases the starting point to 4 years and 2 months. I will deduct one year or 25% for the guilty plea. That leaves 3 years and 2 months. That would be the end sentence for the theft charge.

Result

16. The accused is convicted and sentenced to 4 months imprisonment on each of the burglary and attempted burglary charges. Both sentences are to be concurrent. That means the accused will serve a total sentence of 4 months imprisonment on both charges.
17. In respect of the theft charge, the accused is convicted and sentenced to 3 years and 2 months imprisonment. This sentence is to be cumulative on the concurrent sentence of 4 months imprisonment for the burglary and attempted burglary charges.
18. The accused will therefore serve a total sentence of 3½ years imprisonment on all charges. The time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.

CHIEF JUSTICE