Police v Lavasi'i [2017] WSSC 66 (26 April 2017)

THE SUPREME COURT OF SAMOA
Police v Lavasi’i [2017] WSSC 66

Case name:	Police v Lavasi’i
Citation:	[2017] WSSC 66
Sentence date:	26 April 2017
Parties:	POLICE (Prosecution) v TAEAUGA LAVASI’I male of Tanugamanono Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	For the charge of burglary, the accused is convicted sentenced to 4 months imprisonment. For the charge of theft, the accused is convicted and sentenced to 3 months imprisonment. Both sentences to be served concurrently. This is to be followed by 6 months supervision with the special conditions of supervision that; (1) he attend and complete the 6 weeks programme for alcohol and drugs conducted Probation;(2) he undertake community service of 60 hours to Samoa Victim Support Group, and; (3) he abstain from consuming alcohol. Time spent in custody to be deducted
Representation:	F Ioane for Prosecution Accused in person
Catchwords:	Burglary – theft
Words and phrases:
Legislation cited:	Crimes Act 2013 s.174 and 33 Crimes Act 2013 s.161 and 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

TAEAUGA LAVASI’I male of Tanugamanono
Accused

Counsel:
F Ioane for Prosecution
Accused in person

Sentence: 26 April 2017

S E N T E N C E

The charges

1. The accused appears for sentence on two joint charges, one of burglary, pursuant to sections 174 and 33 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one of theft pursuant to sections 161 and 165(b) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. His co-accused is a young offender who will be sentenced in the Youth Court.
3. Leave was granted for him to change his pleas from not guilty to guilty on 10 March 2017.

The offending

4. According to the summary of facts admitted by the accused, on 30 October 2016 at around 1 am in the morning, while the complainant was having drinks with friends in her living room, the accused with the assistance of the young offender went to the complainant’s rented home. They removed louvers from the window of her room and the accused went inside. The accused then took a number of items, namely;
   1. One (1) Swiss Gear Back Bag valued at $20.00USD
   2. One (1) Nalgene Water Bottle valued at $10.00USD
   3. One (1) Flash Drive on a green landyard valued at $30.00USD
   4. One (1) International Driver’s Permit valued at $20.00USD
   5. One (1) iPhone 6 in a black Lifeproof case valued at $660.00USD
   6. One (1) Wallet (Silver Colour) “Nine West” valued at $10.00USD
7. Four (4) passport photos inside 2 white cards valued at %15.00USD
   8. Business Cards in a black Cover valued at $5.00USD
      9. One (1) White hand bag with lady’s make up and a lady’s panty inside valued at $25.00USD
10. A clear plastic bag with some papers inside valued at $10.00USD
11. One (1) Yale Baseball Hat valued at $20.00USD
12. One (1) USB Extension Cord valued at $10.00USD
13. Four (4) Visa Checks of $20.00USD each, to a total value of $80.00USD
14. One (1) Blue Tape valued at $5.00USD
15. One (1) Pocket Tool Kit valued at $15.00USD
16. One (1) Lady Wrist Watch valued at $30.00USD
17. Three (3) Silver Rings one (1) valued at $40.00USD, two (2) others valued at $30.00USD each to a total value of $100.00USD
18. Three (3) Calendars valued at $1.00USD each to a total value of $3.00USD
19. Four (4) Pack of Ginger Beer valued at $12.00SAT
20. $550.00USD Cash
21. $950.00SAT Cash
5. The total value of the stolen property is SAT$4877.56.

Background of the accused

6. The accused is 18 years old, single and lives with his parents at Tanugamanono. He is currently unemployed. He has not been able to maintain a paying job.
7. His mother told Probation that despite his involvement in this matter, he is a loving son.
8. According to the accused, this offending occurred after he drank with a few village friends. He expressed his remorse to Probation.
9. He has a previous conviction in September 2016 for unlawful assembly whereby he was sentenced to 12 months supervision. This offending which occurred about a month later, is a breach of his supervision sentence.
10. There has been no reconciliation of this matter.

The Victim

11. The Victim impact report says that the victim cannot sleep well. She is afraid that someone will break in. She has now moved because of this fear. She is 24 years old from the USA and volunteers at the Hospital at Motootua. This means she receives a small living stipend as she is here to offer her service free to our hospital.

The Aggravating Features of the Offending

12. It is an aggravating feature that this was a home invasion. It appears from the New Zealand burglary&#160 cases ases that home entry or entry into a private dwelling house is an aggravating factor relating to the offending, for example, Rio v Police [2011] NZHC 1002, para [27]. This is also the position of this Court in Police v Ajawas [2013] WSSC 49 (31 July 2013). Now this factor is factor which the Court must take into account as an aggravating factor pursuant to section 7(1)(b) of the Sentencing Act 2016.
13. It is particularly aggravating that this was entry into a room which belonged to a young female.
14. It is also aggravating that the accused was with another offender. This was a joint effort which could have been potentially terrifying for the victim.
15. It is aggravating that the value of the stolen property was significant, being over SAT$4877.56.
    

Mitigating Features of the offending

16. It is mitigating that some of the stolen property was recovered.

Aggravating features in respect of the accused

17. The accused has a previous conviction in 2016 for unlawful assembly.
18. He has committed this offence while subject to a sentence.

Mitigating factors

19. I take into account the age of the accused. He is 18 years old. The fact that he had been drinking is not a mitigating factor.
20. I will give him credit for his belated guilty pleas.

Discussion

21. Prosecution has recommended a sentence of imprisonment with a starting point of 12 months.
22. Burglary and theft offenders are becoming more brazen. The Court must respond accordingly to eradicate this problem in our society.
23. If this was his first offence, I would have considered a non-custodial sentence, given his age. However a month or so after being sentenced last year, the accused re-offended. He was given a chance when the Court imposed a sentence of supervision. It does not appear that he appreciated that chance. Deterrence now calls for a sterner sentence.
24. Having therefore considered the aggravating and mitigating factors relating to the offending as well as taking into account the sentencing objectives of retribution, deterrence, the need for protection of society, and rehabilitation, I have decided that it is appropriate to impose a custodial sentence in this case followed by a term of supervision. A custodial sentence will deter the accused from further offending and supervision is to ensure that the accused at his young age receives some education around alcohol consumption.
25. The starting point for sentence is 5 months imprisonment. I will add 2 weeks for his previous conviction and offending while subject to a sentence. I will then deduct 2 weeks for his young age and 20% or 1 month for his belated guilty pleas.

Sentence

26. For the charge of burglary, the accused is convicted sentenced to 4 months imprisonment.
27. For the charge of theft, the accused is convicted and sentenced to 3 months imprisonment.
28. Both sentences to be served concurrently.
29. This is to be followed by 6 months supervision with the special conditions of supervision that; (1) he attend and complete the 6 weeks programme for alcohol and drugs conducted by Probation;(2) he undertake community service of 60 hours to Samoa Victim Support Group, and; (3) he abstain from consuming alcohol.
30. Time spent in custody to be deducted.

JUSTICE TAFAOIMALO TUALA WARREN