Police v Fonoti [2019] WSSC 71 (27 March 2019)

IN THE SUPREME COURT OF SAMOA
Police v Fonoti [2019] WSSC 71

Case name:	Police v Fonoti
Citation:	[2019] WSSC 71
Decision date:	27 March 2019
Parties:	POLICE v FAALETATAU MASEIGA FONOTI, male of Nu’u & Vaismoso
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	For the offendings of 29 September 2018 you are convicted and sentenced to 6 months’ imprisonment to be followed by 6 months’ supervision with conditions recommended by the Prosecution: (i) Curfew 7.00pm – 7.00am; (ii) Not to be seen in public gathering; (iii) To reside with a family member that can monitor and discipline the defendant (someone who he is scared of and listens to) as approved by Probation; (iv) Attend any educational programs as directed by Probation – Teen Challenge & Salvation Army; and (v) Other conditions as deemed fit by Probation. For the offending of 08 January 2019 of theft as a servant, the drill that you took has been recovered and returned to the employer. You are convicted and discharged of this offending.
Representation:	Q. Sauaga for Prosecution Accused appears in Person
Catchwords:	burglary – theft – willful trespass – theft as a servant – multiple offences
Words and phrases:	declined from ADC – custodial sentence followed by supervision term and conditions imposed
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

FAALETATAU MASEIGA FONOTI male of Nu’u & Vaimoso
Accused

Counsel:
Q. Sauaga for Prosecution
Accused appears in Person

Date: 27 March 2019

S E N T E N C E

1. Faaletatau, you appear for sentence on two offences:
   • (i) Burglary, theft and willful trespass committed on 29 September 2018; and
   • (ii) Theft as a servant committed on 08 January 2019.
2. The two offendings were committed on separate occasions.

Offending of 29 September 2018:

3. In relation to the offendings of 29 September 2018, you appeared and pleaded guilty and were referred to the Alcohol and Drugs Court (ADC) after having been assessed and deemed eligible for the programs run and monitored by ADC. One’s eligibility does not imply automatic acceptance to the ADC; there is a process and a determination hearing by ADC before a defendant is either accepted or declined.
4. You appeared in ADC on 06 November 2018 and your matter was adjourned for two weeks for the ADC Team to carry out a Family Group Conference (FGC) with you and your family and to identify someone in the community to be your Community Justice Supervisor (CJS). Meanwhile, you were to start attending the programmes to await the reports from the ADC Team and that if you are accepted the sessions (program) will be counted towards the full program. You were to attending on 07 November 2018 and to appear back in ADC on 20 November 2018 for determination.
5. A family group conference took place on 15 November 2018 but on 20 November 2018 you failed to turn up to Court for determination hearing of your matter. A warrant of arrest was issued by ADC on 20 November 2018. The warrant was issued by ADC on 20 November when you offended again on 08 January 2019 with theft as a servant. You were declined from ADC and returned to the Supreme Court for sentencing.
6. On 11 March 2019, you appeared for sentence for the offendings you were declined from ADC (29 September 2018) and offending on 08 January 2019. When you appeared on this day, your mother pleaded to the Court to give you a second chance as no parent wants to see their child at such a young age be sent to prison. The Court took this into consideration, especially the fact you are only 17 years’ old and decided for the best interest of deterrence to give you this second chance with ADC as the best option (which normally is not allowed). You were due to appear in ADC on 05 April 2019 for determination and formal acceptance. Before being released on bail, I was informed by the Registrar that you had been further remanded in custody for other offending committed sometime in February 2019 and you have yet to enter a plea. In light of these new charges in February 2019 I have revoked my order giving you a second opportunity in ADC and have decided to sentence you on the two offending before the Court.
7. It appears from what your mother said in Court, you do not listen and you do whatever you want. It also appears to the Court that your parents can no longer ‘control’ or discipline you and they don’t even bother or care about where you go and who you hang out with. You have been out of school for some time now. You were given an opportunity to attend ADC programs and your family were aware because a FGC was carried out yet when you never turned up, your family’s response when the Team got in contact with them is they do not know where you are.
8. Given all these factors, I think that a custodial sentence is appropriate as a penalty but (in my view) more in the sense of you as a young offender as a lesson and hopefully deter you from going down the pathway of a recidivist offender.
9. The Prosecution has recommended 10 months’ imprisonment to be followed by 8 months’ supervision with conditions.
10. I think appropriate that for the offendings of 29 September 2018 you are convicted and sentenced to 6 months’ imprisonment to be followed by 6 months’ supervision with conditions recommended by the Prosecution:
    • (i) Curfew 7.00pm – 7.00am;
    • (ii) Not to be seen in public gathering;
    • (iii) To reside with a family member that can monitor and discipline the defendant (someone who he is scared of and listens to) as approved by Probation;
    • (iv) Attend any educational programs as directed by Probation – Teen Challenge & Salvation Army; and
    • (v) Other conditions as deemed fit by Probation.
11. For the offending of 08 January 2019 of theft as a servant, the drill that you took has been recovered and returned to the employer. You are convicted and discharged of this offending.

JUSTICE TUATAGALOA