Police v Finau [2019] WSSC 58 (28 August 2019)

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Case name:	Police v Finau

Citation:	[2019] WSSC 58

Decision date:	28 August 2019

Parties:	POLICE v FU’A JOE TOMA ESE FINAU male of Toomatagi, Auala and Safaato’a Lefaga.

Sentencing date(s):	28 August 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:	- Convicted and sentenced on both charges to 4 months and 2 weeks less time remanded in custody. On your release, you are to be under the supervision of the probation service for 6 months and to attend programs that may be directed by the probation service. - I wish to briefly address the Road Traffic Ordinance 1960. Section 29(4) of the Road Traffic Ordinance 1960 deals with the granting or refusal of driving licenses. Relevantly subsection (4) provides that an application for a license or renewal of a license to drive a public service vehicle which includes a taxi, shall be refused by licensing authority if the licensing authority, by reason of the nature of any conviction of the applicant or for other good causes, is of the opinion that the applicant is not a fit and proper person to drive a public service vehicle. - Given that the Defendant has prior convictions for violent offending including for which he was imprisoned in 2012, such convictions should disqualify him from being a holder of a license permitting him to drive a taxi on the grounds of character. A robust process should be implemented and applied by licensing authority in terms of the grant of licenses to drive buses and taxis for the protection of the public. Convictions for serious violent offending should raise red flags as to the suitability of any such person to drive buses and taxis and whether they are fit and proper persons to hold such licenses. - Given that you have committed this offending in the course of your role as a taxi driver and the comments I have made, Prosecution is directed to deliver a copy of this sentencing decision to the Chief Executive Officer of the Land Transport Authority within 7 days of the written decision being made available so that the LTA can consider the comments that I have made and review your public service vehicle license. A copy should also be made available to the Commissioner of Police for the purposes of the Traffic Division of the Ministry of Police.
Representation:	L A Matalasi for Prosecution Accused self-represented

Catchwords:	aggravating and mitigating features – burglary – breach of trust – early guilty plea – theft –

Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960.

Cases cited:	Police v Talia Malaga [14 February 2019] Police v Hinckley a.k.a Junior Tuala

Summary of decision:

FU’A JOE TOMA ESE FINAU male of Toomatagi, Auala and Safaato’a Lefaga.
Accused

[1] Fu’a, you appear for sentencing on one charge of burglary (S1425/19) and one charge of theft (S1457/19) involving the theft of a television valued at $1,680.00. You entered an early guilty plea to the charges.

[2] According to the Prosecution’s Summary of Facts accepted by you yesterday, you are well acquainted with the victim. You usually are the taxi driver that drives the victim home in your taxi. On the 17th July this year at about 11am, the victim called you to pick him up from his home. At that time, you were at somewhere in Lefaga making your way to Apia. Later on when you arrived at the victim’s home, you saw that no one was inside or around the house. At that time, the victim was in fact at the back getting ready for you to pick him up. Upon finding that the house was unoccupied at the time, you then entered the victim’s home without any lawful authority. Once inside the house, you stole the victim’s 46-inch flat screen TV and carried it in to your taxi which was outside the victim’s home. You then returned to the victim’s home and took two caps and the Xbox game console.

[3] In your Pre-Sentence Report, you told the Probation Service that when you returned into the victim’s home, you took the Xbox games console and two hats and put on a pair of the victim’s shoes. As you were taking these items out, the victim came out of the bathroom and asked you what you were doing. You returned these items to the house and then left the house taking with you the victim’s television set in your taxi. You told the Probation Service you later sold the television set to another taxi driver that afternoon and used the money to buy food, cigarettes and fuel.

[4] You are a 34-year-old male of Toomatagi and Auala Savaii. According to your Pre-Sentence Report, you were raised in Safaato’a Lefaga and are the third of nine children. You completed school to year 11. You started carpentry at Don-Bosco but stopped after 2 years after financial constraints. You then held various jobs. Despite your offending, you continue to work as a taxi driver. You have confirmed your prior conviction record which shows your prior convictions in 2012 for assault occasioning actual bodily harm for which you were imprisoned for 6 months; armed with a dangerous weapon for which you were imprisoned for 2 months; and drunkenness. Your last conviction was for assault last year where a non-custodial sentence was imposed.

[5] You have a positive testimonial and a written testimonial from your pulenuu speaking of your good character as well as your written testimonial from your pastor.

[6] The victim of your offending is a 45-year-old male employed in a government authority.

[7] In the victim’s Victim Impact Report, he said that since the theft of his home, his family had become very vigilant about security. He feels their home is no longer safe and expresses his concern for his own safety and that of his family. The offending has had an impact on the victim and his family and their feeling of safety from stealing within their own home.

[9] When confronted by the victim in broad daylight, you nevertheless took his television and drove off.

[11] For the purposes of sentencing today I also accept that there are no aggravating features personal to you as an offender. Whilst you have prior convictions, they are convictions for a different types of offending.

[12] Also there are no aggravating features personal to you as an offender. You do not get credit for prior good character.

[13] In respect of the mitigating factors personal to you, the only mitigating factor that I take into account is your early guilty plea.

[14] Fu’a, you committed a burglary in broad daylight of the victim’s home after he called you to come pick him up from his home.

[15] Members of the public are entitled to have confidence that when they call a taxi driver to pick them up, the taxi driver will not use that opportunity to burgle their homes and steal from them. There must be confidence in taxi drivers not to use the opportunity or knowledge gained from the course of their work to go and commit offences against members of the public. In your case, you went to the victim’s home and believing the victim was not home, you then entered the home and stole from him. You intended to steal more items from the victim but were confronted by the victim as you went to leave with other items.

[16] Despite being confronted by the victim, you did not return the 46 inch television that you put in your taxi. Instead, you drove off with it and according to your own admission, sold it for $100 later that day. It was brazen and foolish. You certainly had no fear of the victim. Despite being caught by the victim in the act of stealing, you still drove off with the 46 inch television and sold it that same day. I do not know how you would think the victim would not notice the 46 inch television is gone or identify you as the thief.

[17] When given an opportunity to express yourself yesterday, you expressed no remorse for your acts against the victim. You also expressed no remorse for your actions in your Pre-Sentence Report. You however told the Court that you won’t re-offend and that you took the TV because of your desire for goods belonging to someone else. I do not accept that. You took the television and sold it and you used the money for food, cigarettes and petrol. You did not want the TV but you wanted money.

[18] Prosecution submits that a non-custodial sentence is appropriate and refers to a number of authorities including Police v Talia Malaga [14 February 2019] and Police v Hinckley a.k.a Junior Tuala. Your case can be distinguished from those two cases because the key factors in those cases were the young age of the defendants. You also have the serious aggravating factor that you committed this offending in the course of providing your service as a taxi driver.

[19] Given the value of the television stolen by you, the burglary of the victim’s home, your breach of trust and the aggravating features in your offending, a custodial sentence is warranted. In imposing a custodial sentence, deterrence is a key factor. For those who work as taxi drivers, they must understand that they are required to act with the utmost propriety and honesty and not abuse their position as taxi drivers and that if they do abuse their positions and offend against their customers, then in circumstances such as yours Fu’a, they run the real risk of imprisonment.

[20] In your case I adopt 6 months imprisonment start point. I deduct 1 ½ months for your guilty plea leaving an end sentence of 4 months and 2 weeks imprisonment on both charges. Accordingly, you are convicted and sentenced on both charges to 4 months and 2 weeks less time remanded in custody. On your release, you are to be under the supervision of the probation service for 6 months and to attend programs that may be directed by the probation service.

[21] I wish to briefly address the Road Traffic Ordinance 1960. Section 29(4) of the Road Traffic Ordinance 1960 deals with the granting or refusal of driving licenses. Relevantly subsection (4) provides that an application for a license or renewal of a license to drive a public service vehicle which includes a taxi, shall be refused by licensing authority if the licensing authority, by reason of the nature of any conviction of the applicant or for other good causes, is of the opinion that the applicant is not a fit and proper person to drive a public service vehicle.

[22] Given that the Defendant has prior convictions for violent offending including for which he was imprisoned in 2012, such convictions should disqualify him from being a holder of a license permitting him to drive a taxi on the grounds of character. A robust process should be implemented and applied by licensing authority in terms of the grant of licenses to drive buses and taxis for the protection of the public. Convictions for serious violent offending should raise red flags as to the suitability of any such person to drive buses and taxis and whether they are fit and proper persons to hold such licenses.

[23] Given that you have committed this offending in the course of your role as a taxi driver and the comments I have made, Prosecution is directed to deliver a copy of this sentencing decision to the Chief Executive Officer of the Land Transport Authority within 7 days of the written decision being made available so that the LTA can consider the comments that I have made and review your public service vehicle license. A copy should also be made available to the Commissioner of Police for the purposes of the Traffic Division of the Ministry of Police.

Supreme Court of Samoa

Police v Finau [2019] WSSC 58 (28 August 2019)