Police v Tunu [2019] WSSC 14 (18 January 2019)

SUPREME COURT OF SAMOA
Police v Tunu [2019] WSSC 14

Case name:	Police v Siale Tunu
Citation:	[2019] WSSC 14
Decision date:	18 January 2019
Parties:	POLICE v SIALE TUNU male of Vailoa Faleata and Vaitele-fou
Sentencing date(s):	18 January 2019
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- You are accordingly convicted and sentenced to 1 year and 5 months imprisonment less time remanded in custody. For information S1708/18, you are convicted and sentenced to 12 months imprisonment. For informations S1706/18 and S1707/18, you are convicted and sentenced to 3 months imprisonment on both charges. For information. Informations S1706/18, S1707/18 and S1708/18, those sentences are concurrent to S1619/18.
Representation:	F Ioane for prosecution Accused self-represented
Catchwords:
Words and phrases:	burglary; 2 victims of the offending; high prevalence of the offence of burglary accompanied by theft; burglary was of a residential home in the early hours of the morning whilst the families slept; value of the goods stolen by you and your co-defendant was significant.
Legislation cited:
Cases cited:	Police v Ajawas [2013] WSSC 49, Sapolu CJ, Police v Tauanuu [2017] WSSC 141 (23 November 2017) Police v Maualaivao [2015] WSSC 47 (5 May 2015).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SIALE TUNU male of Vailoa Faleata and Vaitele-fou.
Accused

Counsel:
F Ioane for prosecution
Accused self-represented

Decision: 18 January 2019

O R A L S E N T E N C E

The Charges:

[1] Siale Tunu, you appear for sentencing on the following charges: these being two charges of burglary being informations:

• S1706/18 – burglary

• S1708/18 – burglary

• S1707/18 – theft

• S1619/18 – theft

The Offending:

[2] According to the Prosecution Summary of Facts accepted by you: on the 27 October 2018 in the early hours at around 2am to 3am at Vaitele-fou, you were intoxicated and together with your co-defendant approached the first victim’s house a faleoo whilst he was asleep. You entered the house without authority and dishonestly took the following items:

1) One Samsung J3 cellphone valued at $600.00SAT;

2) One school bag valued at $15.00SAT;

3) Two small pall mall cigarettes valued at $13.00SAT; and a

4) Cash of $40.00SAT.

[3] Immediately after, you and your co-defendant approached the second victim’s house which is the neighbour of the first victim. You then removed two louvers from the window. You and your co-defendant then entered the second victim’s house without lawful authority and dishonestly took the following items:

(i) One HP Laptop valued at $1,100.00SAT;

(ii) One HP Laptop valued at $1,200.00SAT;

(iii) One Samsung J5 cellphone valued at $600.00SAT;

(iv) One Samsung S6 cellphone valued at $3,000.00SAT;

(v) One Samsung S5 cellphone valued at $1,000.00SAT; and

(vi) $180.00SAT in cash.

[4] The total value of goods and cash stolen by you was $7,080.00SAT. On the next day the matter was reported to police and you were apprehended. You were interviewed and then cautioned.

Background of Accused:

[5] You are 19 year old male of Vailoa Faleata. You are the second of three children and completed school to year 12. Your parents separated in 2000 and you then stayed with your father. You are in a de-facto relationship. You are expecting your first child this month. Your partner says that she has witnessed changes in you and you no longer consume alcohol. You are unemployed.

[6] You have prior convictions entered on the 19 August 2016. These convictions were for grievous bodily harm assault and being armed with a dangerous weapon. You were convicted and sentenced to 1 year and 8 months imprisonment.

The Victim:

[7] There are 2 victims to your offending. The first victim is a 26 year old male of Vaitele-fou. There is no VIR for the first victim. He however was at home at the time of your offending.

[8] The second victim is a 30 year old female also of Vaitele-fou. She says that to date, she has not received back two telephones, the Samsung S5 and Samsung S6 valued at $4,000.00. In her Victim Impact Report, she said she was scared when this incident occurred. She remains fearful and worried that you may return to their home. She has not been at peace given that this occurred whilst they were asleep and resting.

Aggravating Features:

[9] The following are the aggravating features of your offending:

(i) The high prevalence of the offence of burglary accompanied by theft;

(ii) The burglary was of a residential home in the early hours of the morning whilst the families slept;

(iii) The value of the goods stolen by you and your co-defendant was significant; and

(iv) There are two victims to your offending

[10] I do not take into account your prior conviction for assault and armed with a dangerous weapon as these were offending of a different nature. It does however mean that you do not receive a deduction for Prior Good Character.

Mitigating Features Personal to the Offender:

[11] In terms of mitigating features of the offending, there are none. In terms of your offending Personal to you however is your youth, the return of some of the stolen items and your GP.

[12] I do not accept that you are genuinely remorseful. The Probation Service says that in terms of your stated remorse, it was not genuine. This was also reflected in Court when you were not honest about your prior convictions initially denying your prior convictions and then wrongly stating that you had voluntarily handed yourself into Police.

Discussion:

[13] Siale, burglary accompanied by theft is a highly prevalent offence in Samoa. Very often, it involves young men such as yourself consuming alcohol and then committing the acts of burglary and theft of homes and businesses.

[14] In 2013, Parliament increased the penalty for burglary from 5 years imprisonment to 10 years imprisonment. That reflects Parliament’s view of the seriousness of the offence. It is also a highly prevalent offence coming before the Courts.

[15] In the case of domestic burglary like yours, the approach of the Courts in Samoa is that it is a serious offence and people who commit such crimes face the real risk of imprisonment. In Police v Ajawas [2013] WSSC 49 citing from English authorities, Sapolu CJ explained that “it is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her...” That however is only one part. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place;”

[16] Whilst I accept that you are a first time burglar, a custodial sentence is warranted. This is to deter you and others from committing the same or similar offences and to denounce this conduct. This is also because of the significant value of the goods stolen by you; there are two victims to your offending from neighbouring homes which you perpetrated on the same night in the early hours of the morning; you did so while the victims were at home and sleeping; and this is a very prevalent offence. I also note that the Probation Service considers you unsuitable for a community based sentence.

[17] In terms of the sentence, I have had regard to the sentencing authorities to which I have been referred. I have also considered Police v Tauanuu [2017] WSSC 141 (23 November 2017) involving the burglary of a home in the early hours with the theft of $2,790 worth of goods whilst the victim slept. A 12 months start point was adopted. In Police v Maualaivao [2015] WSSC 47 (5 May 2015) involving the burglary of a Samoan fale at around midnight with the theft of $5,289.39 worth of items. The start point adopted was 15 months imprisonment. Your offending was more serious then both these cases for the reasons that I have set out earlier.

Result:

[18] Now, I apply the totality in sentencing principles and information S1619/18 burglary is the lead charge. Taking into account the aggravating factors of your offending, I adopt 2 years and 3 months imprisonment as start point for sentence. I deduct 3 months for your youth, 1 months for your return of some of the goods and 6 months for your early guilty plea. You are accordingly convicted and sentenced to 1 year and 5 months imprisonment less time remanded in custody. For information S1708/18, you are convicted and sentenced to 12 months imprisonment. For informations S1706/18 and S1707/18, you are convicted and sentenced to 3 months imprisonment on both charges. For information. Informations S1706/18, S1707/18 and S1708/18, those sentences are concurrent to S1619/18.

JUSTICE CLARKE