Police v Masoe [2018] WSSC 32 (20 March 2018)

SUPREME COURT OF SAMOA
Police v Masoe [2018] WSSC 32

Case name:	Police v Masoe
Citation:	[2018] WSSC 32
Decision date:	20 March 2018
Parties:	POLICE v SIO AFITU MASOE male of Asau, Savaii.
Hearing date(s):	7 March 2018
File number(s):	S1078/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted of each of the burglary charges against him and sentenced to 3 years and 10 months imprisonment. - He also convicted of each of the theft charges against him and sentenced to 3 years and 10 months imprisonment. - All sentences are to be concurrent. - The time that the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.
Representation:	F Ioane for prosecution Accused in person
Catchwords:	aggravating features relating to the offending – aggravating features relating to the accused as offender – burglary –previous convictions – starting point for sentence – sentence– theft
Words and phrases:	Crimes Act 2013, s.174 (1) (a), s.161
Legislation cited:
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

SIO AFITU MASOE male of Asau, Savaii.
Prosecution

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 20 March 2018

S E N T E N C E

The charges

1. The accused Sio Afitu Masoe appears for sentence on four separate charges of burglary, contrary to s.174 (1) (a) of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment, and four separate charges of theft, contrary to s.161 of the Act, each of which carries a maximum penalty of 7 years imprisonment. The accused had initially pleaded not guilty to the charges, but changed his plea to guilty on the date of trial.
2. There are four victims in this matter. One charge of burglary and one charge of theft relate to each victim. So there are four charge of burglary and four charges of theft against the accused.

The offending

(a) First incident

3. The prosecution’s summary of facts as it relates to all four incidents in this matter was accepted by the accused. It shows that on Thursday 9 November 2016, you went to the house of the first victim, a 36 year old male, at the hostel at Samoa College, tore up the screen wire, removed three louvres of a window at the back of the house, and entered the house. You then stole a laptop valued at $1,800 and a cellphone valued at $300. The total value of the stole properties is $2,100.
4. As the supplementary pre-sentence report shows, the accused told the probation service that he had been smoking marijuana not long before he committed this offending.

(b) Second incident

5. The prosecution’s summary of facts shows that on Monday 3 April 2017, you went to the house of the second victim, a 52 year old female, at Motootua, removed three louvres of a window at the front of the house whilst the victim and her family were away and entered the house. You stole several items including a guitar valued at US$2,500. The total value of the stolen properties in Samoan currency is $6,350.
6. As the supplementary pre-sentence report shows, the accused had told the probation service that this offending occurred at 11pm at night after he had been drinking three large bottle of beer next to the fence of the second victim’s house.

(c) Third incident

7. The prosecution’s summary facts shows that on Sunday morning 7 May 2017, you went to the house of the third victim, a 45 year old female, at Malifa, whilst the victim and her family were away from home to attend church service and removed two windows of the shower and entered the third victim’s house. You then stole several items. Their total value is $1,615.90.

(d) Fourth incident

8. The prosecution’s summary of facts shows that on Thursday 14 December 2017 in the afternoon, you went to the house of the fourth victim, a single male, at Vailoa, removed the louvres of a window at the fourth victim’s kitchen and entered house. You then stole several items. The total value of the stole properties is $4,756.84.

The accused

9. The accused is a 23 old male from Asau, Savaii, and Lalovaea. He is single and presently unemployed. The supplementary pre-sentence report dated 9 March 2018 shows that the accused was convicted and sentenced on 12 July 2016 on charges of burglary and theft to 3 months imprisonment to be followed by 6 months supervision. So when he reoffended on 9 November 2016, he was supposed to be under supervision. The summary of facts accepted by the accused shows that he also has a previous conviction for willful trespass in 2017 when he was convicted and discharged. The supplementary pre-sentence report also shows that the accused did not fully comply with the conditions of his supervision in 2016 and did not show remorse over his actions.
10. There are several discrepancies between what the accused related to the probation service in 2016 and in 2018 about his personal circumstances as shown from his pre-sentence report dated 7 July 2016 and his supplementary pre-sentence report dated 9 March 2018. As a result, it is difficult to be totally sure about his personal circumstances. What appears to be certain is that he attended primary school at Asau but did not complete secondary school. He is also consistent about being employed by a rental company for about a year.

The victims

11. There are no victim reports on the second and third victims but only the first and fourth victims. It appears from their impact reports that the first and fourth victims now feel unsafe in their own homes as a result of the burglaries and thefts committed by the accused. The first victim was also worried as the laptop stolen by the accused belongs to the school where he is a teacher. The fourth victim used to bring his nieces and nephews to his house but he no longer does so` since this incident as he has locked up everything in his house.

The aggravating features relating to the offending

12. The following are the aggravating features relating to the offending:-
    • (a) this is a case which involves multiple victims, that is, four different victims;
    • (b) all four offendings involved home invasion;
    • (c) the impact of the offending on the victims;
    • (d) the various total value of the properties stolen from each house; and
    • (e) reoffending in November 2016 whilst still under supervision.

The aggravating features relating to the accused as offender

13. The accused’s previous convictions for burglary and theft in 2016 and for willful trespass in 2017 are an aggravating feature relating to the accused as offender.

The mitigating features relating to the accused as offender

14. The only mitigating feature relating to the accused as offender is his belated guilty plea when he changed his not guilty plea to one of guilty on the morning of the trial.

Discussion

15. Having regard to the principles and purposes of sentencing set out in the prosecution’s sentencing memorandum, the totality principle, and the aggravating features relating to the offending, I have decided to take 4 years as the starting point for sentence. I will add on 3 months for the previous convictions. That increases the starting point to 4 years and 3 months. I will deduct 10% or 5 months for the belated guilty plea. That leaves 3 years and 10 months.

Result

16. The accused is convicted of each of the burglary charges against him and sentenced to 3 years and 10 months imprisonment.
17. He also convicted of each of the theft charges against him and sentenced to 3 years and 10 months imprisonment.
18. All sentences are to be concurrent.
19. The time that the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.

CHIEF JUSTICE