Police v Wendt [2017] WSSC 81 (5 May 2017)

SUPREME COURT OF SAMOA
Police v Wendt [2017] WSSC 81

Case name:	Police v Wendt
Citation:	[2017] WSSC 81
Decision date:	05 May 2017
Parties:	POLICE (Prosecution) and MAX JUNIOR WENDT male of Faatoia. (First Defendant) FISO LANUKAMU male of Saleilua Falealili and Papaloloa. (Second Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	There are no other deductions that are warranted for your case, for each count of burglary you will be convicted and sentenced to 21 months in prison but terms are to be served concurrent. In relation to the charges of theft, for the first two charges of $1,500.00 each convicted and sentenced to 9 months in prison each charge, also concurrent. On the third charge of theft where you used the knife to break in, 12 months in prison also concurrent sentence. On the final charge of theft where you stole over $5,000 and phone cards, convicted and sentenced to 21 months in prison but also concurrent to your other term. O lona uiga o le aofa’i o le taimi e tuli e fai ma ou fa’asalaga mo moliaga ia Max e 21 masina i le toese. Fiso considering your role and your lesser benefit from this offending, your sentence should in my view be significantly less than the principal offender Max. Making allowance for the fact that you too have a clean record and a good pre-sentence report, you have pleaded guilty and you have personally apologized to the company and been re-employed by them, in respect of the burglary charges convicted and sentenced to 6 months in prison, tuli fa’atasi. In respect of each theft charge, convicted and sentenced to 3 months in prison also to be served concurrent. O lona uiga o le aofai o le taimi e te nofo sala ai i le toese mo lau solitulafono Fiso e 6 masina.
Representation:	O Tagaloa for prosecution Defendants unrepresented
Catchwords:	Burglary and theft – prevalent offending – clean record – restitution – imprisonment
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MAX JUNIOR WENDT male of Faatoia..
First Defendant

AND:

FISO LANUKAMU male of Saleilua Falealili and Papaloloa.
Second Defendant

Counsel:
O Tagaloa for prosecution
Defendants unrepresented

Sentence: 05 May 2017

S E N T E N C E

1. The two defendants have pleaded guilty to four (4) counts of burglary and theft. The police summary of facts admitted to by both say the first defendant is a 23 year old male of Faatoia, was at the time of the offending employed at the Best Value Supermarket at Papauta. The second defendant is a 25 year old male of Falealili and Papaloloa was also at the time employed at the Best Value Supermarket. The complainant is the manager of the Supermarket. Only the complainant and her husband are allowed access to the office of the supermarket located inside the store where the money and other valuables of the supermarket are kept.
2. The summary goes on to state that in relation to the first lot of informations number S2909/16 and 2911/16 on or between 31 August and 01 October 2016 the defendants broke into the office of their employer and stole $1,500.00.
3. The second lot of informations relates to the period 30 September to 01 November 2016 again the defendants broke into the office and stole $1,500.00.
4. Third lot of charges relates to the period also 30 September and 01 November again theft of $1,500.00.
5. The final lot of charges is for the 13 of November and the summary says that at 8:00 pm that day the first defendant broke into the office while the second defendant operated as a look out in case the owners came onto the scene. They stole $5,500.00 in cash, four hundred (400) Digicel phone cards valued at $5.00 each to a total value of $7,500.00. Total of all the sums stolen by the defendants comes to $12,000.00 in cash and in kind.
6. These are large thefts Max and Fiso that you committed over a significant period of time. None of these losses have been recovered by the company and in terms of apologies the manager of the company in the victim impact report says the following:

“Max did not make any effort to come and apologise for this, only his parents came but we did not want to hear it from his parents. Sometimes he turns up to the shop but he never shows any remorse for this which makes me very angry because he has no mercy. He did not even return back any amount he stole from us. For Fiso he has apologized and we accepted him back to our business and now he is working again for us. The reason why we took him back because we believe that Fiso would never do what Max did even though he was part of this criminal offending.”

7. Gentlemen the courts policy in relation to theft by servants is very clear and has been stated on many occasions. It is serious and prevalent offending and will usually result in prison. Unless there are exceptional circumstances warranting a different treatment. No exceptional circumstances exist in your case.
8. Imprisonment sentence is entirely appropriate and must be imposed. Because the court must continue to send the message not only to the two of you but to everyone in the community that if you do this, Tafaigata is your likely fate. I do not accept your attempts to justify your actions by saying you have family responsibilities and other things that needed to be attended to. We all have those responsibilities but we find ways to cope. We do not go resort to stealing from people who employ us in order to fulfill our family church and other responsibilities.
9. The sentence that must be imposed on you today is clearly a term of imprisonment the only question for me to determine is how long. However even though you committed your offences together your imprisonment terms are not going to be the same. The reason for that gentleman is because it is clear from the documents before me that Max you were the main offender while you Fiso played a subsidiary role only.
10. According to the pre-sentence reports to which you agreed in relation to the first two burglaries and theft it was Max who went into the office, took the $1,500.00 and then gave Fiso $200.00.
11. In relation to the third lot of charges, it was Max who broke into the office using a knife, he took the money and came out and gave Fiso $500.00. On the fourth lot of charges it was Max again who broke into the office using a knife to open the door and he took money and the Digicel cards and gave Fiso $500.00. Clearly Max benefited the most from these thefts.
12. The second reason why your penalties are going to be different is because of what the complainant manager says in the victim impact report. It is clear that Max made no personal apology to the complainant even though he had opportunities to do so. Fiso on the other hand did so and has been taken back by the company.
13. I will deal firstly then with you Max because you are the primary offender. The maximum penalty for burglary at law is 10 years in prison and the theft you committed also 10 years in prison. Prosecution have suggested that sentencing in the circumstances of your case should start at 4 years in prison, I think that is too high given the opportunistic nature of the offending on the first two occasions. I will therefore start sentencing at 3 years.
14. There are deductions to be made from that start point, the first one concerns your record. You have a previous conviction but it if for a different kind of offence I am therefore treating you as a person with a clean record. The pre-sentence report on you is good, it records your service to your family and your background. For all that I deduct 6 months from your start sentence, leaves 30 months in prison.
15. If you had paid some of the money back to the company or made some form of restitution I would have also made a deduction for that. But is it clear from what I have read that this was not done.
16. It is clear however that your parents made an apology on your behalf. Although you yourself did not make that apology, as a gesture of leniency I will give you some credit for your parents actions and deduct 2 months from the balance of sentence, leaves 28 months.
17. You have pleaded guilty to all these charges, you have saved the court and prosecution a lot of time and resources. That is also some indication of your remorse, I deduct one-quarter of the remaining term namely 7 months, leaves 21 months.
18. There are no other deductions that are warranted for your case, for each count of burglary you will be convicted and sentenced to 21 months in prison but terms are to be served concurrent.
19. In relation to the charges of theft, for the first two charges of $1,500.00 each convicted and sentenced to 9 months in prison each charge, also concurrent.
20. On the third charge of theft where you used the knife to break in, 12 months in prison also concurrent sentence.
21. On the final charge of theft where you stole over $5,000 and phone cards, convicted and sentenced to 21 months in prison but also concurrent to your other term.
22. O lona uiga o le aofa’i o le taimi e tuli e fai ma ou fa’asalaga mo moliaga ia Max e 21 masina i le toese.
23. Fiso considering your role and your lesser benefit from this offending, your sentence should in my view be significantly less than the principal offender Max. Making allowance for the fact that you too have a clean record and a good pre-sentence report, you have pleaded guilty and you have personally apologized to the company and been re-employed by them, in respect of the burglary charges convicted and sentenced to 6 months in prison, tuli fa’atasi.
24. In respect of each theft charge, convicted and sentenced to 3 months in prison also to be served concurrent. O lona uiga o le aofai o le taimi e te nofo sala ai i le toese mo lau solitulafono Fiso e 6 masina.
    

JUSTICE NELSON