Police v Poasa [2017] WSSC 59 (10 April 2017)

THE SUPREME COURT OF SAMOA

Police v Poasa [2017] WSSC 59

Case name:	Police v Niutovale Poasa
Citation:	[2017] WSSC 59
Sentence date:	10 April 2017
Parties:	POLICE (Prosecution) v NIUTOVALE POASA male of Mulifanua and Falevao Accused
Hearing date(s):	10 April 2017
File number(s):	S222/17 and S223/17
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Convicted on the charge of burglary and sentenced to 7 months imprisonment, less time remanded in custody. For theft, you are also convicted and sentenced to 7 months imprisonment less time remanded in custody. These sentences are to be served concurrently. Prosecution has advised that the Prison has appropriate cell facilities for the accused. The Prison authorities are to ensure that the accused is held in an appropriate cell to cater for his condition and to ensure that all his medical needs including those stated in Dr Tuitama’s report are made available to him. On the accused’s release from prison, he is to be under the supervision of the Probation Services for 9 months with the following special conditions: (a) reside at an address approved by the Probation Service (b) attend an alcohol program conducted by the SVSG or other organisation as directed by the Probation Services of not less than 6 weeks duration; (c) prohibited from consuming alcohol during his supervision period; (d) prohibited from having any contact with Andrew Masoe and Tasimilo, both individuals referred to in the PSR; and (e) he is to attend such other programmes as directed by the Probation Service.
Representation:	F. Ioane for Prosecution Defendant self-represented
Catchwords:	Burglary – theft
Words and phrases:
Legislation cited:	Crimes Act 2013 ss 174(1) 161,165(b)
Cases cited:	Police v Ajawas [2013] WSSC 49 (31 July 2013), Sapolu CJ, Police v Tovia [2013] WSSC 64 (5 August 2013), Sapolu CJ, Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13; Police v Seminare Ajawas (2013) (SC Nos S8036/13 – S8044/13; Police v Maualaivao [2015] WSSC 47 (5 May 2015) Nelson v R [2014] NZCA 121, the New Zealand Court of Appeal, R v M [2008] NZCA 148, the New Zealand Court of Appeal, Police v Ah Kau [2013] WSSC 139 per Nelson J.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

NIUTOVALE POASA male of Mulifanua & Falevao
Accused

Counsel:
F. Ioane for Prosecution
Defendant self-represented

Sentence: 10 April 2017

S E N T E N C E

4. The accused appears for sentencing on 1 charge of burglary contrary to section 174(1) of the Crimes Act 2013 (“the Act”) which carries a maximum penalty of ten (10) years imprisonment and 1 charge of theft contrary to section 161 and 165(b) of the Act which carries a maximum penalty of 7 years imprisonment.
5. The accused entered guilty pleas at the first available opportunity.
   

The Offending

6. According to the Summary of Facts accepted by the accused, between 12.00 am and 8.00am on the 22^nd of December 2016, he entered the Returnees Association Office at Nafanua without lawful authority and stole the following items valued at $4,530.00:

HP Laptop

Samsung DVD Player

8gb Flash Drive

7. The Accused was arrested by Police on the 10^th January 2017.
   

The Accused

8. According to the Pre-Sentence Report, the accused is a 28 year old male. He was raised at Lalovi Mulifanua and is the eldest of 5 children. He attended school in Samoa and completed year 11. In 2007, he migrated to New Zealand. In 2014 as a result of criminal offending in New Zealand, he was deported back to Samoa.
9. On his return to Samoa, he admitted to the Probation Services that he has returned to “his old ways where he is again in trouble with the law”. His aunty with whom the Probation Service spoke said that the accused’s main weakness is associating with the wrong crowd as well as alcohol.
10. The Pre-Sentence Report refers to medical treatment required by the accused including obtaining medication from New Zealand Corrections Services, counseling and monthly injections at the National Health Service. The PSR further states that the accused has a “mental disorder”. For this reason, I deferred sentencing and ordered the prosecution to have carried out a mental health assessment of the accused and for a report to be submitted prior to sentencing. That report from Tuifagatoa Dr George Tuitama dated 4^th April 2017 says that the Mental Health Unit of the NHS will continue its support of the accused for his monthly reviews and administration of his medication in prison.
11. The accused’s New Zealand previous conviction record was read to him. The accused is no stranger to the New Zealand Courts and he accepted the following previous convictions:
    

Conviction Date	Offence	Penalty
20/11/2012	2 x Injuries - Intent to injure.	2 years and 3 months imprisonment, concurrent.
25/07/2012	2 x breach of conditions of intensive supervision.	60 hours community work for each charge.
25/07/2012	4 x breach of Community Work	60 hours community work for each charge.
05/04/2012	1 x Common assault	Intensive supervision 1 year and 6 months with special conditions.
26/09/2011	1 x theft of car (under $500.00)	Supervision 9 months with special conditions.
13/05/2010	Breath Alcohol Level over 400 Mcgs/litre of breath	Fine $500.00, Court Costs $130.00. Licence disqualification 6 months.
13/05/2010	Unlicensed driver, fail to comply with prohibition.	No sentence noted
13/05/2010	Give false details as to own identity.	Fine $200.00 plus $130 Court costs.
13/05/2010	Theft of property (under $500.00)	Fine $100.00 plus Court costs $130.00.
03/03/2009	Fail to answer Police bail	Fine $100.00 plus Court costs of $130.00.
05/11/2008	Fighting in Public Place.	Fine $100.00 plus Court costs of $130.00.

12. The accused disputed 3 other alleged convictions and Prosecution understandably did not seek to call evidence on those 3 alleged convictions.

The Victim

13. The victim of the offending is the Returnees Charitable Trust (“RCT”). A Victim Impact Report was not provided to the Court, however, Magele Vernon Mackenzie of the RCT was interviewed for the purposes of the PSR. Mr Mackenzie states that he is disappointed with the accused, particularly given that he had helped the accused “more than anyone since he was deported two years ago.” Mr Mackenzie had also arranged for the accused’s medication to be brought from New Zealand, arranged his counseling and a paid job cleaning the office of the RCT. Mr Mackenzie had also transported the accused to the NHS monthly for his injections.

Aggravating and Mitigating Factors

14. The aggravating features in relation to the accused’s offending are: (a) the breach by the accused of the victim’s trust, a victim that had extended to him extensive support following his deportation from New Zealand; (b) the high value of the goods stolen; and (c) the offending involved premeditation as disclosed by the PSR.
15. There are no mitigating features in respect of the accused’s offending.
16. In relation to the accused as an offender, his previous convictions in New Zealand is an aggravating feature. Whilst he is a first offender in Samoa, he certainly is not in New Zealand and those previous convictions in New Zealand which include for offences of dishonesty are aggravating. In sentencing, I apply the approach in Police v Ajawas [2013] WSSC 49 (31 July 2013) following the Tauekei approach for uplift of sentence as an aggravating feature personal to the offender.
    
17. The mitigating features personal to the offender is the early pleas of guilty by him to the charges, his remorse stipulated in the PSR and his mental disorder.

Discussion

18. In Police v Ajawas (op. cit), Sapolu CJ referred to the New Zealand High Court judgment in Iwikau v Police and stated “[b]urglars have been helpfully categorised into three groups: a first time burglar, a recidivist burglar, and a spree burglar.” Whilst the accused has prior convictions, he is a first time burgler, despite apparent admissions to the contrary in his Pre-Sentence Report, which I ignore for the purposes of sentencing here.
19. In Police v Tovia [2013] WSSC 64 (5 August 2013), Sapolu CJ stated in terms of sentencing approaches to cases such as this:

“As explained Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13; sentences delivon 2 August 2013), par, para 2, and Police v Seminare Ajawas (2013) (SC Nos S8036/13 – S8044/13; sentence delivered on 3y 2013), para para 9, entenpurposes, where the accused is charged with burglburglary&#ary and thrising from the same same criminal offending, it is normal ply the totality principle. A separate sentence is imps imposed for trglaryglary charge and a separattence&#nce is impfor the theft c. Both Both Both sentences can bthe same duration. The. The sentences are then made concurrent. ahis approacld beied wthe sene sentencing Judge is mindful of imposing sing an end sentence of ionment.ment.”

;

20. I 0">I have perused the cases referred to by the Prosecution in their SentenMemorandum. I have also hado had regard to the sentencing decision of Sapolu CJ in Police v Maualaivao [2015] WSSC 47 (5 May 2015). In that case, the value of the goods stolen amounted to $5,289.39. In that matter, the accused also had prior convictions but with the additional aggravating feature that the burglary was of the family home at around midnight.
21. In sentencing the accused, it is accepted by the prosecution and the Probation Service that the accused suffers from a mental disorder. He receives monthly injections and a medical review to address his condition. That he has a condition was also apparent in his interactions with the Court. Unfortunately, no specific diagnosis of the accused mental condition was provided, including by Dr Tuitama who prepared a report for the Court. Fitness to plea however was not at issue.
    
22. In Nelson v R [2014] NZCA 121, the New Zealand Court of Appeal stated:

“[22] As the decision of this Court in E(CA689/10) v R makes clear, mental disorder falling short of exculpating insanity may mitigate culpability, and hence sentence. If causative of the offending, it moderates the offender’s culpability. It may also render less appropriate, or more subjectively punitive, a sentence of imprisonment. It may be relevant because of a combination of those reasons. Sentencing does have an essentially moral base. As such, mental disorder may mitigate moral fault and, accordingly, criminal culpability. But, at the same time and as the Crown submitted, care has to be taken when assessing the causative impact and mitigating effect of mental illness on offending.”

23. In R v M [2008] NZCA 148, the New Zealand Court of Appeal stated in terms of the New Zealand Sentencing Act 2002:

[34] However, in terms of s 8(h), we are satisfied that because of Mr M’s acknowledged low level of intellectual function and, as Judge Walker found, his diminished ability to “cope with the stresses of life”, a term of imprisonment may weigh more heavily on him than on others.”

24. In R v M (op. cit), the Court of Appeal upheld a discount of 12% from a 17 year start point despite finding that there was there was no causal nexus established between the mental illness and M’s offending.
25. Section 8(h) of the New Zealand Sentencing Act 2002 referred to in R v M mirrors section 6(g) of the Sentencing Act 2016. That the accused’s mental condition can be taken into account is consistent in my view with subsection 6(g) and 6(h) of the Sentencing Act 2016.
26. In terms of any reductions in the imprisonment term, I will apply a rehabilitative component on his release from prison to focus on his rehabilitation. That a mental disorder provides scope for a reduction in sentence has also been applied in Police v Ah Kau [2013] WSSC 139 per Nelson J.
27. In terms of sentence, I adopt 12 months imprisonment as the start point for sentence. I uplift this by 3 months for the accused’s prior convictions. I will deduct 2 months for remorse, 3 months for his mental condition and the fact that his imprisonment will weigh more heavily on him and 3 months off the balance of the sentence for his early guilty pleas and remorse. That leaves an imprisonment term of 7 months.
    

The penalty

28. The accused is convicted on the charge of burglary and sentenced to 7 months imprisonment, less time remanded in custody. For theft, you are also convicted and sentenced to 7 months imprisonment less time remanded in custody. These sentences are to be served concurrently.
29. Prosecution has advised that the Prison has appropriate cell facilities for the accused. The Prison authorities are to ensure that the accused is held in an appropriate cell to cater for his condition and to ensure that all his medical needs including those stated in Dr Tuitama’s report are made available to him.
30. On the accused’s release from prison, he is to be under the supervision of the Probation Services for 9 months with the following special conditions:

(a) he is to reside at an address approved by the Probation Service

(b) he is to attend an alcohol program conducted by the SVSG or other organisation as directed by the Probation Services of not less than 6 weeks duration;

(c) he is prohibited from consuming alcohol during his supervision period;

(d) he is prohibited from having any contact with Andrew Masoe and Tasimilo, both individuals referred to in the PSR; and

(e) he is to attend such other programs as directed by the Probation Service.

JUSTICE LEIATAUALESA DARYL CLARKE