Police v Uelese [2020] WSSC 33 (10 June 2020)

IN THE SUPREME COURT OF SAMOA
Police v Uelese [2020] WSSC 33

Case name:	Police v Uelese
Citation:	[2020] WSSC 33
Decision date:	10 June 2020
Parties:	POLICE (Informant) and TAVITA DAVID UELESE, male of Palisi & Vaimoso (Accused)
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:	The defendant Tavita Uelese is sentenced to one year and two months’ imprisonment (14 months). Less any time in custody.
Representation:	M. Alai & V. Faasii for Prosecution M. Tuimalealiifano for the Accused
Catchwords:	burglary – theft – burgled same shop twice – declined from ADC – pre-meditation – custodial sentence – young offender
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

Informant

AND:

TAVITA DAVID UELESE, male of Palisi & Vaimoso

Accused

Counsel: M. Alai & V. Faasii for Prosecution
M. Tuimalealiifano for the Accused

Date: 10 June 2020

S E N T E N C E

1. Tavita was referred together with his co-defendant to the Alcohol and Drugs Court on 26 May 2020. Tavita was ‘declined’ from the Alcohol and Drugs Court (ADC) in that whilst awaiting appearance in ADC he re-offended.
2. He now appears to be sentenced on two (2) counts of burglary and theft committed on two different dates (7 March and 17 March) with two different co-defendants but the same victim shop.

First incident: 7 March 2020

3. It is clear from the summary of facts by the Prosecution that prior to the offendings, alcohol was involved and that both offendings were committed under the influence of alcohol. It is also clear that the defendant Tavita was the leader of the two offendings and that both offendings targeted the same shop and were carried out when it was closed and the shop owners were asleep.
4. Whilst Tavita was out on bail awaiting sentencing for the 7^th March offending, Tavita went drinking and with a different co-defendant again broke into and stole from the same shop on 17^th March, within two weeks. This shows no remorse on Tavita’s part and total disregard to the law.
5. On the 7^th March offending Tavita and his co-defendant stole properties to the value of $2,872.10. On 17^th March, Tavita and a different co-defendant stole properties with the estimated value of $4,000.00.
6. The Prosecution provided the following aggravating factors:
   • (i) The offendings were pre-meditated;
   • (ii) The total value of properties stolen are significant, of $6,872.10 plus costs of repairing things damaged when broke in;
   • (iii) The offendings were carried out within two weeks of each other;
   • (iv) The offendings targeted the same victim’s shop; and
   • (v) The impact of the offendings on the shop owner (refer victim impact report).
7. The Prosecution seeks a custodial sentence on totality for both offendings with a starting point of 3 years. The Prosecution submits that the only mitigating factor is Tavita’s early guilty pleas.
8. The defence counsel on the other hand advocates for a non-custodial sentence and submits the following mitigating factors of:
   • (i) Guilty plea;
   • (ii) Defendant being a first offender;
   • (iii) Remorseful;
   • (iv) Apology to the owner of the shop by his mother (Defendant in custody);
   • (v) Hardship on the young defendant in that he lost his father in 2006, an imprisonment term will impact heavily on his life; and
   • (vi) Young age of the defendant.
9. Defence counsel seeks for rehabilitation programme with the Salvation Army on a supervision term of six months.
10. Defence counsel’s recommendation of a non-custodial sentence would have been considered by the Court if the only offending was that of 7^th March; Tavita would have been accepted into the ADC if that was the only offending. However, even if he had been accepted in ADC for the 7^th March offending, he would have been ‘exited’ from the ADC for the 17^th March offending and be referred for sentencing of both set of offendings as we are doing.
11. I agree that a custodial sentence must be imposed. I also agree that a 3 year starting point is appropriate on a totality approach for both sets of offendings. On this totality approach, the defendant is not a first offender.
12. From the 3 year starting point, less 18 months for the defendant’s young age (19 years old), remorseful, the apology by his mother to the owner of the shop and first offender status, this leaves 18 months. This is further lessened with a discount of 25% for the defendant’s early guilty plea which amounts to 4 months’ discount.
13. The defendant Tavita Uelese is sentenced to one year and two months’ imprisonment (14 months). Less any time in custody.
14. The defendant will however be eligible for parole after having served his term.
    

JUSTICE TUATAGALOA