Police v Esau [2018] WSSC 115 (14 November 2018)

SUPREME COURT OF SAMOA
Police v Esau [2018] WSSC 115

Case name:	Police v Esau
Citation:	[2018] WSSC 115
Decision date:	14 November 2018
Parties:	POLICE v ESAU MIKAELE ESAU male of Toamua and Leone.
Hearing date(s):
File number(s):	S1404/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted and sentenced to 10 months supervision and ordered to perform 40 hours community work as directed by the probation service.
Representation:	L Mailo-Sua for prosecution Accused in person
Catchwords:	aggravating features relating to the offending – burglary – mitigating features relating to the accused as offender – theft – supervision
Words and phrases:
Legislation cited:	Crimes Act 2013 s161, s165(d)
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

ESAU MIKAELE ESAU male of Toamua and Leone.
Accused

Counsel:
L Mailo-Sua for prosecution
Accused in person

Sentence: 14 November 2018

S E N T E N C E

The charges

(a) The accused appears for sentence on one charge of burglary, contrary to s.174 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 one year imprisonment pursuant to s.165 (d). To both charges, he pleaded guilty at the earliest opportunity.

The offending

(b) The brief facts of this matter as shown from the prosecution summary of facts confirmed by the accused were that, on 12 September 2011 at around 9:00am, the accused entered the house of the complainant while it was locked and stole $155. It is not clear from the summary of facts how the accused was able to get into the house because it was locked.

The accused

(c) The accused is an 18 year old male of Leone. He is single and unemployed. According to the pre-sentence report, the accused finished school at Year 8 which shows that he had a low level of education. He was then employed by a Chinese building construction company for some time before he decided to stay home.
(d) The accused told the probation service, as shown from his pre-sentence report, that he was at a house at Lotopa with two of his friends who pressured him into burgling the house next door which belongs to a Chinese man. They then went to that house, pulled back the sliding door and took money from inside the house. Part of the money was given to one of the accused’s friends and the rest of the money was used by the accused to buy food and cigarettes. A few days later, the accused was apprehended by the police.
(e) The accused also told the probation service that he is remorseful for his actions and hopes for a second chance from the Court. He is a first offender.
(f) It also appears from the pre-sentence report which is dated 30 October 2018 that the accused is remanded in custody on another matter. When the accused was asked by the Court about his matter, he said it was for causing damage to a vehicle. The prosecution informed the Court that this is a District Court matter. There has been no decision on this other matter. I will therefore treat the accused as a first offender for the present matter.

The aggravating features relating to the offending

(g) I consider the following features as aggravating the present offending:

• (a) It involves home invasion.
• (b) It involves the burglary and theft of the house of a foreigner, namely, a Chinese national. Criminal offences which involve Chinese nationals as victims has been at an alarming increase in the recent past particularly burglary and theft. But there have also been other kinds of offences. This is becoming of serious concern that soon the Courts are going to impose heavy sentences if this trend does not cease. The Chinese are contributing in a significant and substantial way to the development of Samoa but people like the accused with their actions are likely to undermine the good relationship that the rest of Samoa has with the Chinese.

The mitigating features relating to the accused as offender

(h) The following are mitigating features relating to the accused as offender:

• (a) young age.
  • (b) early guilty plea.

Discussion

(i) As already mentioned, the continuing rise in the level of criminal offending against Chinese nationals in Samoa has become of much concern to the Court. Not only does this involve burglary and theft but also the use of violence in such cases. I have been giving serious consideration whether to impose a term of imprisonment in this case to serve as a deterrent not only to the accused but others of like mind. However, given the mitigating features and the relatively small amount of money involved, I have decided to give priority to the rehabilitation requirements of sentencing. But the accused should be warned that if he appears again in the future on similar circumstances, then he is likely to go to prison.

Result

(j) The accused is convicted and sentenced to 10 months supervision and ordered to perform 40 hours community work as directed by the probation service.

CHIEF JUSTICE