Police v Uli [2018] WSSC 42 (2 March 2018)

SUPREME COURT OF SAMOA
Police v Uli [2018] WSSC 42

Case name:	Police v Uli
Citation:	[2018] WSSC 42
Decision date:	02 March 2018
Parties:	POLICE (Informant) and ULI PAEPAE ULI, male of Pu’apu’a and Falefa (Defendant)
Hearing date(s):
File number(s):	S1954/17, S1955/17, S1958/17, S1904/17, S2058/17, S2056/17 & S2057/17.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- I apply the totality in sentencing principles and S1954/17 as the lead charge. Accordingly: (a) In respect of information S1954/17 and having regard to the aggravating and mitigating features of your offending and those personal to you as an offender, I adopt a 6 months start point for sentence. I deduct 1 month for your remorse and prior good character. I also deduct 1 month for your guilty plea. You are convicted and sentenced to 4 months imprisonment, less time remanded in custody to be served concurrently; (b) In respect of information S2057/17, S1955/17, S1904/17 and S1958/17 you are convicted and sentenced to 3 months, to be served concurrently; (c) In respect of information S2056/17, S107/18 and S2058/17, you are convicted and sentenced to 2 months imprisonment, to be served concurrently.
Representation:	F Ioane for Prosecution Defendant self represented
Catchwords:	Burglary - theft-gross breach of trust
Words and phrases:	custodial sentence is warranted in the circumstances to deter you as well as others who might think of doing the same.
Legislation cited:
Cases cited:	Police v Lefe'e [2013] WSSC 53 (8 July 2013). Police v Oloapu [2015] WSSC 232 (20 July 2015), Police v Poasi [2011] WSSC 31 (28 February 2011) Police v Taase [2012] WSSC 54 (2 April 2012),
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ULI PAEPAE ULI, male of Pu’apu’a and Falefa.
Defendant

Counsel:
F Ioane for Prosecution
Defendant self represented

Sentence: 02 March 2018

SENTENCING OF CLARKE J

1. Uli, you appear for sentencing on four charges of burglary, each charge carrying a maximum penalty of up to 10 years imprisonment and 4 charges of theft each carrying between 7 and 1 year imprisonment. You entered an early guilty plea to the charges on the 4^th November 2017.

The Offending

2. You were employed as a security guard with the TAS Security company which provided security guarding services to the Church of the Latter Day Saints, Lotopa.
3. According to the Summary of Facts accepted by you, between the 19^th and 30^th September 2017, you approached House # 38 occupied by Clifford Vellinga and his wife, a male of America and Lotopa, Samoa located inside the Latter Day Saints Compound Lotopa. There, you broke the door lock of the back door and entered the house without the occupiers authority and stole cash, kitchen knives, men’s socks and food to a total value of ST$1,541.11 (Information S1954/17 (burglary) and S2057/17 (theft)).
4. On the 8^th November 2017, you again approached the house # 38 occupied by Clifford Vellinga and his wife at the Latter Day Saints Compound Lotopa. You again broke the door lock of the back door and entered their home without authority and stole cash, two kitchen knives and food to a total value of $474.01 (Information S1955/17 (burglary) and S2056/17 (theft)).
5. On the 14^th November 2017, you approached the house # 39 occupied by Luana Best, a female of America and Lotopa also at the Latter Day Saints Compound at Lotopa. There, you broke the back door lock and entered that home without authority and stole chocolates, soft drinks, a Samsung cell phone, lighter, bicycle tire tube and a cell phone charger to a total value of ST$489.50 (Information S1904/17 (burglary) and S1078/17 (theft)).
6. Again on the 14^th November, not content with your spoils from house # 39, you again went to the home of Clifford Vellinga and his wife at house # 38, broke the back door lock and entered their home without authority. You stole a pen and food valued in total at $65.14 (Information S1958/17 (burglary) and S2058/17 (theft)).
7. The total amount stolen by you from Clifford Vellinga and his wife was $2,080.35. The total amount stolen by you from Luana Best was $489.50.
8. You confirmed in your Sentencing Hearing that when you carried out your offending, you were working at the LDS Compound as a security guard.

The Accused

9. You are a 28 year old male of Pu’apu’a Savaii and Falefa. You are married with 2 children, 3 and 1 years old. The Summary of Facts says that you are unemployed but your PSR says that you are now employed at Frankies Store in its bakery section. You were formerly employed by the TAS Security Agency from which you have since been terminated.
10. In your PSR, you have expressed remorse for your offending. You have apologized to your former employer, TAS Security Services but no apology was rendered to the occupiers of the homes you burgled and stole from. Ms Debbie Te’o on behalf of TAS Security Services says she would like to leave this matter for the Court as such issues as this have arisen before with their different employees and she feels that you would learn better from the Court.
11. The Probation Service refrains from making a sentencing recommendation.

The Victim

12. There are a number of victims to your offending. The first is Clifford Vellinga and his wife whose home you broke into on 3 occasions, that is between the 19^th – 30^th September, on the 8^th and again on the 14^th November 2017.
13. The other victim of your offending is Reed and Luana Best. In the VIR prepared by Reed Best, they now take significant steps to secure their home and use only the front door to enter and leave. While Mr Best refers to more than one burglary of their home, you are only charged with one charge and I approach your sentencing on that basis. Mr Best says they felt safer when you were in custody, showing that your offending has had an impact on their sense of security and safety within their own home.
14. In my view, a victim of your offending is also your employer TAS Security. Your offending was not only a breach of your employer’s trust in you to secure the LDS compound, a job that you were paid to do but also the trust of those whose property you were engaged to protect. Your burglary and theft carried out as a security guard for TASA Security no doubt has consequences for TAS Security Services when dealing with their customers who you burglarized and stole from and places at risk that security contract with the LDS.

Aggravating and Mitigating features of Offending:

15. The aggravating features of your offending are as follows:
    • (i) the gross breach of trust by you as you were the security guard for that property;
    • (ii) the number of burglaries you committed;
    • (iii) that you targeted the first victim on three occasions;
    • (iv) value of the items stolen by you by our Samoan standards was substantial; and
    • (v) your burglary was of a domestic dwelling.
16. There are no mitigating features to your offending.

The aggravating and Mitigating features relating to you as an Offender:

17. You are a first offender and there are no aggravating features personal to you as an offender. I take into account your early guilty plea, first offender status and remorse as mitigating features personal to you. However, your first offender status is tempered by the fact that your burglaries and thefts cannot be seen to be isolated and out of character as you committed four burglaries in total.

Discussion

18. Prosecution submits that a non-custodial sentence of 12 months supervision is appropriate bearing in mind the value of the goods stolen and the facts of your offending.
19. With respect to prosecution, the fact that you were the security guard charged with protecting the LDS compound at Lotopa is a serious aggravating factor not addressed in sentencing submissions. That you violated the trust invested in you by both your employer and the LDS Church on four separate occasions further aggravates your offending.
20. In dealing with your sentencing, in Police v Taase [2012] WSSC 54 (2 April 2012), His Honour Nelson J stated:

“I am also mindful that more and more security guards are being prose for thefts&efts from their empl. This is beis becoming trendy. I am of the view the message that should be sent to such people must be clear and unambiguos a sty guard you carry a large degreresp responssponsibility. You abuse that you are likellikely to be sent to prison.”

21. In Police v Oloapu [2015] WSSC 232 (20 July 2015), His Honour Nelson J went further and stated:

“The message must go out to all security guards. You are the last line of defence of an employer. Your job is to catch the thieves not become one. This was a severe breach of trust by defendants.”

22. These authorities were also referred to in Police v Oloapu [2016] WSDC 42 (7 October 2016) and are also reflected in other sentences including Police v Poasi [2011] WSSC 31 (28 February 2011) and Police v Lefe'e [2013] WSSC 53 (8 July 2013). What has been earlier expressed by the Courts is also echoed by what Debbie Te’o told Probation,that is apparently these issues have arisen earlier with other employees. Thefts and burglaries by security guards is not uncommon and it is important that security guards understand that if they steal from those whom they are employed to protect, they run the real risk of imprisonment.
23. Due to your gross breach of trust, the number of burglaries and thefts committed by you and the value of the goods stolen by you, a custodial sentence is warranted in the circumstances to deter you as well as others who might think of doing the same.

The penalty

24. I apply the totality in sentencing principles and S1954/17 as the lead charge. Accordingly:

(d) In respect of information S1954/17 and having regard to the aggravating and mitigating features of your offending and those personal to you as an offender, I adopt a 6 months start point for sentence. I deduct 1 month for your remorse and prior good character. I also deduct 1 month for your guilty plea. You are convicted and sentenced to 4 months imprisonment, less time remanded in custody to be served concurrently;
(e) In respect of information S2057/17, S1955/17, S1904/17 and S1958/17 you are convicted and sentenced to 3 months, to be served concurrently;
(f) In respect of information S2056/17, S107/18 and S2058/17, you are convicted and sentenced to 2 months imprisonment, to be served concurrently.

JUSTICE CLARKE