Police v Toilolo [2018] WSSC 116 (20 November 2018)

SUPREME COURT OF SAMOA
Police v Toilolo [2018] WSSC 116

Case name:	Police v Toilolo
Citation:	[2018] WSSC 116
Decision date:	20 November 2018
Parties:	POLICE v ESAU ATILI TOILOLO male of Vaitele Uta and Australia.
Hearing date(s):
File number(s):	S1368/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted and sentenced to 6 months supervision plus 30 hours of community work as directed by the probation service. -
Representation:	F Ioane for prosecution Accused in person
Catchwords:	Alcohol and Drug Court – aggravating features relating to the offending - burglary – causing intentional damage – insulting words – maximum penalty – mitigating features relating to the accused as offender –rehabilitation programme of the Salvation Army Addiction Services (SAAS) – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.174 s.183 (2) (a) Police Offences Ordinance 1961, s.4 (g)
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 ATILI TOILOLO male of Vaitele Uta and Australia.
Accused

Counsel: F Ioane for prosecution
Accused in person

Sentence: 20 November 2018

S E N T E N C E

The charges

1. The accused, a 26 year old male of Vaitele Uta, 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, one charge of causing intentional damage, contrary to s.183 (2) (a) of the Act, which carries a maximum penalty of 7 years imprisonment; and one charge of using insulting words, contrary to s.4 (g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment or a fine of 2 penalty units. To the charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution summary of facts, on 8 September 2018 at around 8am in the morning, the accused went to a shop at Vaitele Uta where he bought an ice pop and a cream bun. Acting as shopkeeper at the shop at that time was the complainant a 20 year old girl. The accused then left the shop and went home. He started eating one of the buns which he said he found to be stale. So he returned to the complainant and said to her that the cream buns wale stale. The complainant replied the cream buns were delivered to the shop that same morning so they should be fresh. The complainant then walked to the back of the shop. At that time, the accused walked behind the counter and someone called out to the complainant about what the accused doing. This made the complainant return to the shop. At that time, the accused held the cream buns, half-moon pies and donuts that were on a table inside the shop and threw them on the floor so that they could no longer be used for sale. The damaged goods were four cream buns at $1.30 each to a total value of $5.20, five half-moon pies at $1.30 each to a total value of $6.50, and ten donuts at $1.30 each to a total value of $13. The total value of the damaged buns, pies and donuts was $24.70. The accused also uttered insulting words at the complainant.
3. The pre-sentence report shows that the accused told the probation service that prior to the morning of the offending, he had been drinking alcohol all night at one of his cousin’s place until 5am in the morning. When he walked back to his family’s house he stopped at the shop of the complainant’s family and bought two cream buns as he was feeling hungry. He left the shop and started eating the first bun which he found to be stale. He immediately returned to the shop and complained to the complainant but she ignored him and walked away. This made him angry so he swiped away the buns, pies and donuts that were on the table and uttered insulting words at the complainant.

The Salvation Army Addiction Services

4. After the accused had pleaded guilty to the charges, he was referred to the case manager of the Alcohol and Drugs Court for screening and to report back to this Court the same day. In the report by the case manager, he recommended that the accused be referred to the rehabilitation programme of the Salvation Army Addiction Services (SAAS). The accused was accordingly referred to the 4 week Faletalatala Psychoeducation Group Programme of the SAAS. The report from the Team Leader/Facilitator of that Programme shows that the accused has successfully completed the Programme and he is very remorseful for his actions.
5. The pre-sentence report shows that the accused who is now 24 years old started consuming alcohol when he was 19 years old. So it was appropriate to refer him to the rehabilitation programme of the SAAS relating to alcohol related offenders.

The accused

6. The pre-sentence report shows that the accused was born in Samoa and grew up at Vaitele Uta where he attended primary school. At the age of 9 years, he was adopted by one of his paternal uncles in New Zealand and he attended school in New Zealand up to Year 11. When his adoptive father passed away, he returned to Samoa in 2007. In 2014, he moved to Australia where he stayed with his mother’s relatives. He found employment with a metal manufacturing company. He came to Samoa this year to visit his family when this offending occurred. He was to return to Australia on 28 November 2018.
7. The father of the accused described his son to the probation service as a quiet and clam person and has never been known as a troublesome person. He has also apologized to the complainant on behalf of the accused and his apology was accepted. The accused has also expressed deep remorse for his actions to the probation service and he does not have any previous conviction.

The aggravating features relating to the offending

8. The aggravating features of this offending are as follows:
   • (a) the total value of the damaged buns, pies and donuts which is relatively small,
     • (b) the use of insulting words.

The mitigating features relating to the accused as offender

9. The mitigating features relating to the accused as offender are as follows:
   • (a) previous good character,
   • (b) remorse,
   • (c) successful completion of the SAAS rehabilitation programme,
   • (d) the father’s apology to the complainant which was accepted, and
   • (e) early guilty plea

Discussion

10. Having regard to the aggravating features relating to the offending and mitigating features relating to the accused as offender, I have decided not to impose a custodial sentence in this case.

Result

11. The accused is convicted and sentenced to 6 months supervision plus 30 hours of community work as directed by the probation service.

CHIEF JUSTICE