Police v Falega [2017] WSSC 128 (10 October 2017)

SUPREME COURT OF SAMOA
Police v Falega [2017] WSSC 128

Case name:	Police v Falega
Citation:	[2017] WSSC 128
Decision date:	10 October 2017
Parties:	POLICE v VAIMAGALO FALEGA male of Lotofagā, Safata.
Hearing date(s):
File number(s):	S278/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused is convicted on both charges against him and sentenced on both charges to 10 months supervision. - As special conditions of his term of supervision: (a) he is to attend the 7 weeks Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme, (b) attend the Teen Challenge rehabilitation programme, and (c) perform 30 hours community service.
Representation:	L Sio and A Matalasi for prosecution Accused in person
Catchwords:	ADC clinician – aggravating factors relating to the offending–aggravating features relating to the accused as offender – Burglary –Drug and Alcohol Court –– mitigating features relating to the accused as offender – theft – Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme
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Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

VAIMAGALO TUPAI FALEGA male of Lotofagā, Safata
Accused

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

Sentence: 10 October 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 (1) (a) 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 under s.165 (b). To the charges, the accused pleaded guilty at the earliest opportunity.

History of proceedings

2. When this matter was first called for mention on Monday 13 February 2017, the accused pleaded guilty to the charges against him. He was then referred to the Alcohol and Drugs Court (ADC) clinician for screening and to report back to this Court the same day at 12:30pm. The ADC clinician in her report recommended that the accused be referred to the 7 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme. I accepted the clinician’s recommendation and adjourned this matter to Monday 3 April 2017 for sentencing so that the accused could attend and complete the Toe Afua Se Taeao Fou rehabilitation programme first. I also called for a pre-sentence report to be provided on 3 April 2017.
3. However, the accused did not attend the Toe Afua Se Taeao Fou programme. He also did not attend to the probation service for a pre-sentence report. When this matter was re-mentioned on 3 April 2017, the Court was not available and it was further adjourned to Monday 10 April 2017. On 10 April 2017, the accused failed to appear and a warrant was issued for his arrest. The warrant was only recently executed and the accused was remanded in custody on 29 August 2017. He was again granted bail on 11 September 2017.

The offending

4. According to the prosecution summary of facts accepted by the accused, on Friday 16 January 2017 at Lotofagā, Safata, the accused went to the house of the victim who is 51 years old. The pre-sentence report shows that the victim is the accused’s paternal aunt. It also appears from the pre-sentence report that there was no one at the victim’s house at that time. The accused then used a small knife he was carrying with him to open the door to the victim’s house which was locked.
5. The accused then entered the victim’s house and took the following items: (a) a fine mat valued at $70, (b) a turbo Bluesky cellphone valued at $70, (c) a box of canned hearings valued at $50, and (d) $30 cash. The total value of the items is $1,150. The accused then purchased alcohol from a shop for him and his mates.

The accused

6. As shown from the pre-sentence report, the accused is 24 years old, single, and employed since he left school in his father’s carpentry business earning $80 a week. The pre-sentence report also shows that the accused left school at Year 12 when he was expelled for consuming alcohol and smoking cigarettes on the school grounds.
7. The victim told the probation service that this is not the first time that the accused has done this sort of thing to her family. She said that she often returned home to find that someone has broken into her home and the accused has admitted to her that it has been him and his brother all along. For this incident, she imposed her own punishment on the accused by requiring him with the consent of his parents to cut the weeds in her cattle farm for two weeks but the accused has only been to her cattle farm twice. She also told the probation service that the accused is a threat to their village community including his own relations.
8. When the accused’s parents went to apologise to the victim, his father told the victim that he can no long deal with his son’s troublesome behaviour. However, the accused’s mother told the probation service that her son is a changed person since this incident occurred. The accused now actively participates in church activities especially the youth group. He also now plays the piano for his church.
9. The testimonial from the pastor of the Methodist Church at Nuusuatia shows that the accused had been a member of the Mormon Church but is now a member of the Methodist Church at Nuusuatia and is a member of the church choir and youth group. He attends church regularly and supports and helps out in most of the church activities. The testimonial from the pulenuu of Nuusuatia shows that the accused is serving his village well.
10. This is the first time that the accused has been charged with a criminal offence even though he admitted to the victim it is him and his brother who had been breaking into her family’s house when it is left unoccupied.

Victim Impact Report

11. The victim impact report shows that the victim has been seriously affected mentally and emotionally because it has been a long time for her family looking for the person who has been habitually stealing from their house. The victim says many things have been stolen from her house without her knowledge. But the accused has now admitted to her that it has been him and his brother all along. The victim also says that the accused’s parents agreed for him to work for her for two weeks but the accused was not honest with that arrangement.

The aggravating factors relating to the offending

12. The aggravating factors relating to this offending are: (a) repeated breaking into and stealing from the victim’s house over a period of time, (b) home invasion, (c) value of the properties stolen which are the subject of the present charge, (d) impact of the offending on the victim, and (e) breach of trust as the victim is the accused’s paternal aunt. Even though some lavalava were returned to the victim by the accused, those lavalava must have been related to a different offending that occurred previously.

The aggravating features relating to the accused as offender

13. Even though this is the first time that the accused has been charged with burglary and theft of the victim’s house, it is clear from the accused’s own admission to the victim that he has been burgling and stealing from the victim’s house several times before.

The mitigating features relating to the accused as offender

14. The only mitigating features relating to the accused as offender are his relatively young age and his early guilty plea.

Discussion

15. Having given careful consideration to the circumstances of this case, I have been wavering between imposing a short term of imprisonment to be followed by a term of supervision, imposing a longer term of imprisonment, and imposing a term of supervision with special conditions. In the end, I have decided to give the accused a second chance and impose a term of supervision with special conditions. I have therefore found it inappropriate to apply the starting point for sentence approach to this case. But I must give the accused a stern warning that if he reoffends he is most likely to end up in prison without anymore chance for supervision.

Result

16. The accused is convicted on both charges against him and sentenced on both charges to 10 months supervision.
17. As special conditions of his term of supervision: (a) he is to attend the 7 weeks Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme, (b) attend the Teen Challenge rehabilitation programme, and (c) perform 30 hours community service.

CHIEF JUSTICE