Police v Sau [2020] WSSC 44 (14 August 2020)

SUPREME COURT OF SAMOA
Police v Sau [2020] WSSC 44

Case name:	Police v Sau
Citation:	[2020] WSSC 44
Decision date:	14 August 2020
Parties:	POLICE v SAU male of Magiagi and Vaitele-uta.
Sentencing date(s):	14 August 2020
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, you are convicted and sentenced as follows on the charges before the Court: - Burglary on the 11th November 2018 in the charging document dated 24th December 2018 of the dwelling house of Dawn Rasmussen, you are sentenced to 1 year and 6 months less time remanded in custody; - Theft S1871/18 also shown in the charging document of the 24/12/2018, 1-year imprisonment concurrent; - Burglary and theft in the charging document 5th February 2020 charges 3 & 4, 1-year imprisonment concurrent; and - Burglary and theft in the charging document 5/2/2020 charges number 1 and 2 as well as the burglary and theft S9/19 and S10/19, 3 months imprisonment also to be served concurrently.
Representation:	A Matalasi for Prosecution Accused Self-Represented
Catchwords:	Burglary & Theft;
Words and phrases:	Reoffend whilst on bail; impact on the victims;
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SAU UPOLU SAU male of Magiagi and Vaitele-uta.
Accused

Counsel: A Matalasi for Prosecution

Accused Self-Represented

Sentence: 14 August2020

ORAL SENTENCE

The Charge:

1. Sau, you appear for sentencing on four charges of burglary and four charges of theft. The first two burglaries and thefts were committed in November 2018. This was then followed by a further two burglaries and thefts in October 2019.

The Offending:

2. According to the Summary of Facts in respect of the November 2018 offending set out in the Summary of Facts of the 20th March 2020, the first burglary and theft occurred between Friday 9th and Monday 12th November 2018 at Malifa. The defendant and his brother went out clubbing in town. After night clubbing in the early hours of that morning you went to the Leififi College compound. Your co-defendant made a hole in the wall at the Leififi College canteen, through rooms that connect to the canteen. Together with your co-defendant, you then stole various items from the canteen valued at $470.00. Your co-defendant came back to you at the bus shelter where you were waiting for him. You then went with your co-defendant to the Fugalei items and sold the items that you had stolen.
3. The second burglary and theft occurred at Malifa. You and your co-defendant had noticed the complainant’s home was left unoccupied. Therefore, you and your co-defendant decided to break-in to the house and steal properties from there. On 11th November 2018 at around 6am, you and your co-defendant then entered the victim’s home by removing louvers to the house and entered without lawful authority. You then stole properties set out in the summary of facts to a total value of $2,153.00. One of the items that you had stolen which was the refrigerator however could not be removed off the property. You then abandoned it at the front of the complainant’s property.
4. After that offending, you were charged and brought before the Court in December 2018. You then failed to appear and warrants of arrest were issued for your arrest including in June of last year. Despite having been charged and being brought before the Court and then failing to appear, you then committed the second set of offending. As set out in the Summary of Facts of 20th February 2020 which you have accepted - on the 29th October 2019 at Vaivase-tai sometime in the early hours of that morning, the complainant and her family were sleeping. You and your co-defendant went to this complainant’s home while it was securely locked. You and your co-defendant then entered that complainant’s home without lawful authority and stole goods worth $2,068.50. That is the third set of burglary and theft.
5. The next day on the 30th October sometime during the day, you and your co-defendant then went to another home while it was securely locked. Together with your co-defendant, you then also entered that home without lawful authority and stole a water cooler valued at $400.00. The total value of goods stolen by you from all burglaries was $5,091.50.

Background of the Accused:

6. You are a 26 year old male of Magiagi and Vaitele-uta. You are unemployed. The report from the Alcohol and Drugs Court Clinician says that you have been banished from Magiagi, you have behavioral issues and struggled to comply with rules.

The Victim:

7. There are four victims to your offending. The first victim is the canteen owner at Samoa College. There is no Victim Impact Report from the first victim. The second victim is the home owner at Malifa. She is a 76-year-old woman. The victim says that the home belongs to her parents. A few weeks before the burglary, she had left the house to be with her son and his and grandchildren. As a result of your offending, she has not returned to the home out of fear for her safety.

Aggravating features of the offending:

8. The following are the aggravating features of your offending:
   1. Total value of goods stolen by you;
   2. Total number of burglaries committed by you;
   100. The impact of the burglary on your third victim who now no longer lives in the home burgled;
   4. You committed your third and fourth burglaries whilst on bail for your earlier burglaries in November 2018; and
   5. Is an element of pre-meditation in the offending.
9. In terms of a mitigating features of offending there are none.
10. There are no aggravating features personal to you as an offender. You are a first offender.

Mitigating Features Offender:

11. The only mitigating factor you qualify for is guilty plea and your prior good character. That you committed your offending whilst on bail will however be factored into your sentence start point. I do not accept genuine remorse on your part. You have failed to appear in Court when granted bail and have re-offended whilst on bail.

Discussion:

12. Sau, you appeared before the Court in 2018 and were given an opportunity to attend the ADC program. Instead of attending the program and taking the opportunity to try and change your life, you failed to appear before the Court and committed further burglaries and thefts in 2019. This shows your disregard for the law and the Courts and that appearing before the Courts has been no deterrent for you to committing this type of offending. It is disappointing when men such as yourself come before the Courts and despite your appearances before the Courts, you commit further burglaries and thefts. This is now such a prevalent offence amongst young men that it has become a scourge in the community. Burglaries particularly in and around Apia is now so common that as I told your co-defendant Siatua when I sentenced him, people now have to actively guard against burglaries – both for their homes and their businesses. This is at a cost to those families and their businesses who have to guard against people like you who have no respect for people and indeed, the law and the Courts.
13. In sentencing you, I do so that with the purpose of deterring you and others form this type of offending and to protect the community from you. In this regard, as I did for your co-defendant Siatua, I adopt 2 years and 4 months imprisonment on a totality basis with the lead charge of burglary of the 11th November 2018 in the charging document 24th December 2018. That charge relates to the dwelling house of Dawn Rasmussen. From that start point I deduct 4 months for your prior good character and 6 months for your guilty plea leaving an end sentence of 1 year and 6 months imprisonment less time remanded in custody.

Result:

14. Accordingly, you are convicted and sentenced as follows on the charges before the Court:
    • Burglary on the 11th November 2018 in the charging document dated 24th December 2018 of the dwelling house of Dawn Rasmussen, you are sentenced to 1 year and 6 months less time remanded in custody;
    • Theft S1871/18 also shown in the charging document of the 24/12/2018, 1-year imprisonment concurrent;
    • Burglary and theft in the charging document 5th February 2020 charges 3 & 4, 1-year imprisonment concurrent; and
    • Burglary and theft in the charging document 5/2/2020 charges number 1 and 2 as well as the burglary and theft S9/19 and S10/19, 3 months imprisonment also to be served concurrently.

JUSTICE CLARKE