Police v Tusiga [2019] WSSC 18 (18 February 2019)

SUPREME COURT OF SAMOA
Police v Tusiga [2019] WSSC 18

Case name:	Police v Tusiga
Citation:	[2019] WSSC 18
Decision date:	18 February 2019
Parties:	POLICE v SIPUNI MALAGA TUSIGA male of Aele and Letogo.
Sentencing date(s):	18 February 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:	- Accordingly, you are convicted and sentenced as follows: - For the charge of burglary, you are convicted and sentenced to 5 months imprisonment less time remanded in custody. - On the charge of theft, you are convicted and sentenced to 1 month imprisonment less time remanded in custody. - On your release from prison you are to be under the supervision of the Probation Service with the following conditions. - You are to attend the 6 weeks alcohol program conducted by the Salvation Army and; - You are prohibited from consuming alcohol whilst on the supervision.
Representation:	L Sio for prosecution Accused self-represented
Catchwords:
Words and phrases:	burglary and theft; the complainant was sleeping; the burglary of a domestic nature.
Legislation cited:
Cases cited:	Police v Ajawas 2013 [WSSC 49].
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SIPUNI MALAGA TUSIGA male of Aele and Letogo.
Accused

Counsel:
L Sio for prosecution
Accused self-represented

Decision: 18 February 2019

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

The Charge:

[1] Sipuni you appear for sentence on one charge of burglary and one charge of theft.

The Offending:

[2] According to the Summary of Facts which you have accepted this afternoon, on the 11th of December 2018 at Toamua in the early hours of the morning whilst the complainant was sleeping, you broke the back door of the complainant’s house and entered inside without authority.

[3] While inside the complainant’s home, you stole various items totalling to $470 in value. Later in that day, you went in a taxi to Lisa’s store at Vaitele and sold the products to that shop. You then bought a bottle of boom vodka from the proceeds of what you had sold.

Background of the Accused:

[4] You are a 20 year old male of Aele. You are the third of five children completing school to year 8. You are said to be employed as a farmer. You have had previous dealings with the Court. You have been before the Court and convicted of the same offending involving three counts of burglary and five counts of theft in November 2016.

The Victims:

[5] The victim of your offending is a 52 year old female of Toamua and Afiamalu. You broke into her home while she was sleeping.

Aggravating Features of the Offending:

[6] The aggravating features of your offending are:

1. The burglary of a domestic nature; and
2. Your prior convictions.

Mitigating Features Personal to the Offender:

[7] In terms of mitigating features personal to you are:

(i) Youth and;
(ii) Guilty plea.

Discussion:

[8] Sipuni, you have been before the Courts before. In November 2016 you were convicted of three counts of burglary and five counts of theft. You were given a chance and a non-custodial sentenced imposed on you. You have however told me that you did not attend programs. I will take that into account in my sentencing of you today.

[9] Burglary and theft is today a highly prevalent offence in the community and the majority of cases they involve young men such as yourself in their teams 20s into their early 30s. Often they burgle to buy alcohol or steal alcohol just as you have done.

[10] Prosecution seeks 12 months start point for sentence and submits that you are a spree burglar given your previous convictions for burglary and theft. A spree burglar is a burglar that appears for sentence on a number of burglaries all committed in a short space of time and I refer to Police v Ajawas 2013 [WSSC 49]. That is not the case here. You are however a repeat burglar. Unfortunately, despite the opportunity given to you earlier, you appear before the Court for the same offending again. Probation says that you are not suitable for any further programs. That however is varied by the fact that you did not attend programs when you were earlier sentenced.

Result:

[11] I have considered the sentencing authorities and a custodial sentence is appropriate. I adopt 6 months for sentence for the charge of burglary as the lead charge. I uplift that by 2 months for your prior convictions, I deduct 1 month for your age and your youth and 2 months for your guilty plea.

[12] Accordingly, you are convicted and sentenced as follows:

1. For the charge of burglary, you are convicted and sentenced to 5 months imprisonment less time remanded in custody.
2. On the charge of theft, you are convicted and sentenced to 1 month imprisonment less time remanded in custody.

100. On your release from prison you are to be under the supervision of the Probation Service with the following conditions.
     1. You are to attend the 6 weeks alcohol program conducted by the Salvation Army and;
     2. You are prohibited from consuming alcohol whilst on the supervision.

[13] Make the most of the opportunity that the probation service can give you. You have told me quite clearly that you do not enjoy being imprisoned. If you keep committing burglary you will start going up to prison for longer periods of time.

JUSTICE CLARKE