Police v Luteru [2018] WSSC 111 (9 November 2018)

SUPREME COURT OF SAMOA
Police v Luteru [2018] WSSC 111

Case name:	Police v Luteru
Citation:	[2018] WSSC 111
Decision date:	09 November 2018
Parties:	POLICE (Prosecution) AND TAEAO LUTERU male of Gataivai Savaii and Pesega. (Defendant)
Hearing date(s):	-
File number(s):	S1231/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of theft as a servant you will be convicted and sentenced to three (3) years in prison. - On the charge of burglary, following a similar process convicted and sentenced to two (2) years concurrent term. - O lona uiga o le fa’asalaga mo moliaga nei e lua Taeao e tolu (3) tausaga e te nofo sala ai i le toese. Ae poloaina e le Fa’amasinoga e toese le taimi lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o le mataupu lenei mai le tolu (3) tausaga lena.
Representation:	L Faasii for prosecution Defendant unrepresented
Catchwords:	pleaded guilty – burglary - theft as a servant - intention was to steal - properties have been recovered - mitigating factor - significant breach of trust – imprisonment term – to hold you accountable for your actions – convicted and sentenced.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAEAO LUTERU male of Gataivai Savaii and Pesega.
Defendant

Counsel:
L Faasii for prosecution
Defendant unrepresented

Sentence: 09 November 2018

S E N T E N C E

1. The defendant has pleaded guilty to burglary and theft as a servant. The summary of facts which he admitted at a previous calling indicates he broke into the complainants house on 28 July 2018 while the complainant and his wife were in Apia doing some shopping. This is part of the normal routine of the complainant and his wife and the defendant knew this because he has been working there according to him for over ten (10) years.
2. The defendant hired a dyna truck for his activity and at about 12:00 p.m. broke in and loaded all the complainants properties onto the truck. He stole over $28,000 worth of materials mostly construction and engineering equipment but also including a 22 rifle and a 12 gauge shotgun. What the defendant did not factor in was the complainants neighbour witnessed his activities and identified the defendant as the thief.
3. It is clear from what the defendant did that his intention was to steal many of the complainants properties and cause him substantial loss. He told the probation office and the court that he did it because he was dissatisfied with his working conditions and his pay and the fact that the employer had not actioned a National Provident Fund savings. But the defendant is a grown man, the summary of facts says he is 30 years of age and this is not his first job. Even if I believe what he says, he knows far better than to steal as a remedy for his issues.
4. Burglary and theft as a servant are age old problems in this country and is why the court has said on many previous occasions especially in relation to theft as a servant that the normal penalty will be prison. Here there has been a significant breach of trust. The defendant was an employee who had been working for the complainant for over ten (10) years. The employer happily left his property under the defendants care. The defendant grossly abused that trust. There has also been premeditation in the offending in that the defendant knew when the employer and his wife would be absent from the property for a period of time. He hired a truck beforehand to carry out his purposes. This is a case of planned and calculated stealing.
5. In this offending a large amount of property was stolen. Even though they consisted primarily of carpentry and construction equipment they are easy to dispose of in the current building climate of this country. It is fortunate that all of the properties have been recovered as confirmed by the Police receipt for delivery and credit for that will be given to the defendant. Because I have no doubt he co-operated in recovery of all these properties.
6. However, there is no question Taeao as to what penalty the court must impose for your activity. The normal practice must be followed of imposing an imprisonment term to hold you accountable for your actions, to reflect the seriousness of the offending and to send the necessary message to you and to others that if you do this then this is likely what will happen to you.
7. There are two charges against you, burglary and theft as a servant. I will deal with theft as a servant first as I consider that the more significant charge. Both charges carry maximum penalties by law of ten (10) years in prison. But considering the circumstances I will start sentencing at six (6) years imprisonment. You are a first offender but your pre-sentence report does not contain the usual family or character testimonials about your background from your pulenuu or your faifeau or some person of your family. I do not know why that is so, but it means only limited credit should be given under this category. For that I give you three (3) months deduction, leaves a balance of five and three-quarter (5¾) years.
8. The return of all the properties is a very significant factor in my view and it appears to me you would have played a leading role in that exercise. The end result is that the employer has a nil net loss as a result of your activity. I therefore deduct one and three-quarter (1¾) years to reflect that fact, leaves a balance of four (4) years in prison.
9. The other major factor in your favour is your guilty plea to these charges. That has saved the courts time and limited resources. For that mitigating factor you will be given the usual credit of a one-quarter (¼) deduction from the balance of your sentence which is a deduction of one (1) year, leaves a balance of 3 years.
10. There are no other adjustments that can or should be made for your sentence Taeao. On the charge of theft as a servant you will be convicted and sentenced to three (3) years in prison.
11. On the charge of burglary, following a similar process convicted and sentenced to two (2) years concurrent term.
12. O lona uiga o le fa’asalaga mo moliaga nei e lua Taeao e tolu (3) tausaga e te nofo sala ai i le toese. Ae poloaina e le Fa’amasinoga e toese le taimi lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o le mataupu lenei mai le tolu (3) tausaga lena.

JUSTICE NELSON