Police v Daque [2019] WSSC 61 (29 October 2019)

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Case name:	Police v Daqun

Citation:	[2019] WSSC 61

Decision date:	29 October 2019

Parties:	POLICE v DAQUN YE male of Fagalii and China, PALEPA TULAGA female of Fagalii and Vailoa Faleata, WAYNE WU male of Fagalii and China.

Sentencing date(s):	29 October 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:	- Daqun and Palepa, on Charge (E) of the Charging Document, you are convicted and sentenced to 2 ½ months imprisonment. On S1409/19 and S1414/19, you are convicted on those charges and sentenced to 4 weeks imprisonment, concurrent. On S1413/19 convicted and sentenced to 2 weeks imprisonment, concurrent. All sentences less time remanded in custody; - (ii) Wayne, you are convicted and sentenced to 12 months supervision on the condition that you carryout 150 hours community work as directed by the Probation Service. - [ADDENDUM: This Oral Sentencing Decision has been amended to correctly record the age of Wayne Wu and the number of his children at paragraphs 6 and 7. Paragraph 16 has also been amended to correctly reflect that Wayne Wu has the prior conviction for theft.]
Representation:	L Faasii and M Alai for Prosecution L H Schuster for the Accused

Catchwords:	receiving stolen properties,

Words and phrases:
Legislation cited:

Cases cited:

Summary of decision:

DAQUN YE male of Fagalii and China, PALEPA TULAGA female of Fagalii and Vailoa Faleata, WAYNE WU male of Fagalii and China.

[1] The accused Daqun Ye and Palepa Tulaga are charged with 4 charges of knowingly receiving stolen goods contrary to section 167(1) which carries maximum penalties varying between 7 years imprisonment and 2 years imprisonment. The total amount of the stolen goods received by Daqun and Palepa is $5,733.40.

[2] The accused Wayne Wu is charged with 1 charge of knowingly receiving stolen goods contrary to section 167(1) and 168(a). The total amount of the stolen goods received by Wayne was $2,340.00.

[3] By consent, the Summary of Facts paragraph 7 was amended to read in terms of Wayne Wu as “being reckless as to whether or not the properties have been stolen.” In order to bring the charge into consistency with the facts, information S1232/19 is amended by deleting “knowing the said properties to have been stolen” and inserting “being reckless as to whether the said properties have been stolen.”

[4] According to the Summary of Facts, between 30th April 2019 and 1st July 2019, Wayne received thirty gallons of 20kg Ox and Palm Dripping valued at $78.00 each to a total value of $2,340.00, reckless as to whether or not the properties had been stolen. The stolen items belonged to GM Bakery.

[5] In respect of Daqun and Palepa, they also received stolen goods from employees of GM Bakery on 4 separate occasions, knowing that the goods were stolen. The total amount of stolen goods received by them was $5,733.40.

[6] The Summary of Facts prepared by Prosecution is scant on details of the offending.

[7] Wayne is a 37-year-old male of Fagalii and China. According to the Summary of Facts, he is married with 2 children and is said to be the owner of CK Mart at Fagalii. In submissions, this was said by his counsel to be owned by his Samoan wife and he is the manager of their shop. According to his PSR, he grew up in Quandong, China. He completed High School and on being told by a friend that Samoa is a good place to start a business, he migrated to Samoa. He told the Probation Service that he had a number of friends here running businesses and this motivated him to move to Samoa.

[8] Wayne is married and has 2 children. According to his affidavit and the submissions of his counsel, he has a 9-month old child in need of medical treatment. He says in his affidavit that he wishes to take her to China for treatment. In his report, Dr Sesega refers to some of the treatment limitations here in Samoa for the child’s condition.

[9] In his PSR, Wayne told the Probation Service that the goods were received by his staff on behalf of the business. He is the manager of the business and according to his counsel, it is in that capacity that he received the stolen goods.

[10] Daqun and Palepa are husband and wife. Daqun is said to be 26 years old. He was born in Guandong China. He is the youngest of three children. In his PSR, Daqun says he is 26 years old. He lived in Fiji for a period where his father ran a restaurant but when his father passed away in 2007, the family moved to Samoa. He completed school to Foundation here in Samoa. In 2016, he and his wife started their shop together.

[11] In his PSR, Daqun told Probation he only received the items once. He explained that it is sometimes difficult to tell which items are not stolen, with his shop filled with people wanting to exchange goods for cash. This is inconsistent with the Summary of Facts and his guilty plea to the charge as knowingly receiving stolen goods. This was also addressed with his counsel. Where there are differences, he will be sentenced based on the facts set out in the Summary of Facts.

[12] Palepa is 24 years old. She grew up at Vailoa Faleata and is the second of 10 children. She was raised by her paternal grandparents. She completed school to year 13 and started work at Twins Supermarket as a cashier. She looks after a shop in Savaii and her husband looks after their shop in Apia. She told the Probation Service that on the day of the offending, she had come from Savaii to look after Daqun’s shop. Three males came to her. She was suspicious by their appearance, asked for an invoice or receipt and was told they don’t have one. She then nevertheless received the stolen items. This is also inconsistent with the Summary of Facts and where there is a divergence, I accept the Summary of Facts where it is accepted that Palepa knowingly received stolen goods, an issue addressed during submissions.

[14] The victim is GM Bakery. Restitution has been paid by Daqun and Palepa in the sum of $10,000.00 and for Wayne, also the sum of $10,000.00.

[16] In terms of Wayne, aggravating is his previous conviction for theft in 2015.

[17] In terms of the mitigating features personal to the Accused, I note the following:

(iv) Wayne, his personal circumstances, namely, his ill child in need of medical support and care; and

[18] The employees of GM Bakery that have appeared before this Court to be sentenced on the charge of theft as a servant have all been imprisoned. This is because of the prevalence of thefts by employees from their employers in this community, the breach of trust and the amounts involved. Offences of dishonesty involving thefts by employees, and indeed other acts of dishonesty such as burglaries and theft generally are so prevalent in the community that deterrent sentences are imposed by the Courts.

[19] In my observation, many of those who appear for theft as a servant as well as for other offences of dishonesty sell their stolen goods to commercial stores. The commercial stores who receive and pay for these stolen goods provide a market for thieves, burglars and other criminals to sell the fruits of their crimes. Commercial stores who purchase goods ‘off the street’ so to speak must have systems to identify that the goods they are purchasing are not stolen. In many cases, it seems a blind eye may be turned or there is willful ignorance to the source of the goods so that the commercial stores buy the goods at a very low price, itself suspicious, to maximize profit when it is resold at retail value. That practice must be deterred and commercial stores under no illusion that they must take appropriate steps to guard against the goods they procure, particularly on the ‘off the street basis’, being stolen goods.

[20] Daqun and Palepa have pleaded guilty to knowingly receiving stolen goods. They did so on four occasions and the total amount of stolen goods received by them both was $5,733.40. For that amount of the goods stolen by the employees of GM Bakery, a 12 month start point for sentence was adopted for each employee. In Daqun and Palepa’s case, I am satisfied that a custodial sentence is appropriate. Where commercial stores knowingly buy stolen goods, as they have done on 4 separate occasions, they provide a market for the thieves and burglars. If commercial operators knowingly provide this market for the thieves and burglars to offload the fruits of their crimes, then they must understand that doing so will be sternly dealt with by the Courts.

[21] While the value of the stolen goods they have received is the same as that stolen by a number of the GM Bakery employees, I accept that a lower start point is appropriate. This is because theft as a servant has a 10 year start point for sentence. Receiving stolen goods has a maximum penalty of 7 years imprisonment.

[22] I adopt Charge (E) in the charging document as the lead charge on a totality basis in sentencing. While a start point of up to 8 or 9 months might be justified in future similar cases in similar circumstances, I will adopt 6 months imprisonment start point in relation to Daqun and Palepa. I deduct 2 weeks for their prior good character; 1 month for their remorse and apology; 1 months for the full restitution and 1 month for their early guilty plea leaving an end sentence of 2 ½ months imprisonment for both.

[23] Wayne has a prior conviction entered in 2015 for theft. Prosecution seeks a 6 month start point for sentence. This start point was sought when he entered a guilty plea to knowingly receiving stolen goods. On amendment of the Summary of Facts to recklessness, Prosecution maintains its position of a 6 months start point for sentence.

[24] This is not a case in which Wayne was simply negligent in terms of receiving goods that were stolen but that he was reckless. His culpability however is lower than that of having knowingly received the stolen goods. It is nevertheless serious. Given the value of the stolen goods received by him combined with his prior conviction for theft, it is a borderline case in which a short imprisonment may be warranted. Given however his personal circumstances and the ill health of his child, I have decided to impose a non-custodial sentence. He should be under no illusion that should he re-appear for similar offending in future, he will most likely meet the same fate as his co-defendants do today. Wayne, you should make the most of this opportunity and make sure that your shop is not a place where thieves and burglars offload their stolen items or you will ultimately end up in prison with them.

[ADDENDUM: This Oral Sentencing Decision has been amended to correctly record the age of Wayne Wu and the number of his children at paragraphs 6 and 7. Paragraph 16 has also been amended to correctly reflect that Wayne Wu has the prior conviction for theft.]

Supreme Court of Samoa

Police v Daque [2019] WSSC 61 (29 October 2019)