Police v Tuiavi'i [2020] WSSC 13 (18 February 2020)

SUPREME COURT OF SAMOA
Police v Tuiavi’i [2020] WSSC 13

Case name:	Police v Tuiavi’i
Citation:	[2020] WSSC 13
Decision date:	18 February 2020
Parties:	POLICE v GAFA TUIAVI’I male of Aufaga and Faga, Savaii
Hearing date(s):
File number(s):	S1728/18, S1798/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Daryl Clarke
On appeal from:
Order:	- Convicted and sentenced to 1 year and 3 months imprisonment. Similarly, for the charge of theft, 1 year and 3 months concurrent. Your time remanded in custody is to be deducted from that sentence.
Representation:	Q Sauaga for prosecution Accused in person
Catchwords:	aggravating features of the offending – burglary – theft – mitigating factors offender – start point for sentence – sentence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

GAFA TUIAVII, male Aufaga and Faga, Savaii.
Accused

Representation:
Q Sauaga for Prosecution
Accused in person
Sentence Decision: 18 February 2020

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

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

The offending:

[2] According to the prosecution summary of facts admitted by you this afternoon, at the time of the offending, the complainant’s house was under construction. The house only had rooms at the time but no doors or windows. The house is located at Vaitele-fou. On the night of Sunday the 28^th October 2018 at around 4:00am, you went to the complainant’s house whilst the complainant and his girlfriend were sleeping. You entered through the front door gap of the house. You have no authority to enter that building. You then stole items which were inside the room where the complainant and his girlfriend were sleeping in. The items that you stole were: one Samsung screen phone valued at $540.00 and $7,200 cash. The total value of the goods stolen by you was $7,740.00. The Samsung phone was recovered and returned to the police.

Background of Accused:

[3] You are a 34-year-old male of Moamoa, Aufaga and Faga, Savaii. You are the second of four children. In your pre-sentence report, you say you stopped school at Year 8 due to financial constraints. After leaving school, you rendered service to your family. You then carried out some work as a cattle farm and plantation at Tanumalala. You subsequently secured employment at a business at Fasitoo and Tanumalala. You married approximately one year ago and have a two-month old daughter with your wife.

The victim:

[4] The victim of your offending is a 59-year-old male of Vaiusu and Vaitele-fou.

Aggravating features of the offending:

[5] The aggravating features of your offending are:

(i) the burglary was of a residential home while the complainant and his partner were sleeping; and

(ii) the amount of money and the value of goods stolen was by our Samoan standards significant.

Mitigating Features of the offending:

[6] In terms of the mitigating features in respect of your offending, there are none.

Aggravating features in respect of the offending:

[7] In terms of the aggravating features personal to you as an offender, there are none. I do not uplift your sentence for your earlier convictions of assault as those of are of a different nature.

Mitigating factors Offender:

[8] In terms of the mitigating factors that I take into account on sentencing, they are as follows:

(i) First I accept that you are genuinely remorseful of your offending;

(ii) Second, is your guilty plea; and

(iii) Third, I will take into account the return of the phone

Discussion:

[9] Gafa, burglary and theft in our community is a prevalent offence. As I said earlier, not a day goes by without people appearing before these courts for burglary and theft. It is almost always linked to alcohol. It is very often linked to the locally produced alcohol such as Maso that you had referred to. Despite the clear approach by the Court that unless exceptional circumstances exist, an imprisonment term is often imposed. In your case it was residential burglary. It also involved a theft of a significant amount of money. The approach of the Court is quite clear. Deterrence sentences are imposed to deter you and others from committing this offence which is prevalent in our community.

Result:

[10] Prosecution has applied for an imprisonment term with a start point of 2 years. I accept that imprisonment is warranted and that 2 years start point is appropriate. From that start point, I deduct 3 months for the remorse that you have expressed. I deduct 1 month for the return of the phone and 5 months for your guilty plea.

[11] Accordingly, in respect of the charge of burglary, you are convicted and sentenced to 1 year and 3 months’ imprisonment. Similarly, for the charge of theft, 1 year and 3 months concurrent. Your time remanded in custody is to be deducted from that sentence.

JUSTICE CLARKE