Police v Leapai [2020] WSSC 48 (20 August 2020)

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Case name:	Police v Leapai

Citation:	[2020] WSSC 48

Decision date:	20 August 2020

Parties:	POLICE v KANELA KANELA male of Malie and AMOSA LEAPAI male of Malie and Fusi Safata.

Sentencing date(s):	20 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:	- Amosa accordingly, on the charges of burglary and theft and intentional damage, you are convicted and sentenced to 8 months imprisonment. This sentence is cumulative to your current sentence of imprisonment. - Kanela, on all charges before the Court, you are convicted and sentenced to 18 months supervision with the following conditions: you are to carry out 300 hours of community work with the Samoa Victim Support Group or as otherwise directed by the Probation Service; you are to attend and complete not less than a 6 week alcohol and drug program and any other programs as directed by the probation service; you are prohibited from consuming any alcohol or illegal drugs whilst under supervision; and You are to have no contact with Amosa whilst under supervision. - Kanela, I remind you that if you do not comply with the supervision sentence impose on you today, you will be back before the Court and you will be re-sentenced. Make the most of this opportunity.
Representation:	F Ioane for Prosecution T Leavai for the Accused

Catchwords:	burglary and theft – intentional damage

Words and phrases:	burglary of a residential home; premeditation; young age of both defendants.
Legislation cited:

Cases cited:

Summary of decision:

KANELA KANELA male of Malie and AMOSA LEAPAI male of Malie and Fusi Safata.
Accused

[1] Kanela, you appear for sentence on one charge of burglary and one of theft for offending on the 12th February 2020 at Nuu-Fou. Amosa have already been sentenced for this matter. You both also appear for sentencing for burglary and theft and intentional damage that occurred on the 19th May this year.

[2] According to the Summary of Facts admitted by you in respect of the burglary and theft for which you appear for sentencing Kanela, on the 12th February this year at Nuu-Fou sometime in the early hours of that morning, you together with Amosa went to the complainant’s house while the complainant and her family were sleeping. You both removed the louvers from the shower window and the screen wire. The two of you then entered the building and stole properties valued at $4,515.70. You then left the house with the stolen properties. The Police managed to track you down base on the GPS on one of the phones that was stolen. The police recovered all the stolen properties when you were both arrested.

[3] In respect of the second set of offending in which you both appear for sentencing today, on the 19th May at Nuu sometime in the early hours of that morning, the both of you went to the complainant’s shop which was securely locked and closed. You both removed the louvers from the side window of the shop and also the screen wire. You then both entered the complainant’s shop without authority and stole various items to the total value of $1,195.98. In the process of opening the shop till, you damaged that till to a total value of $450.00. You then left the property with the stolen properties and fled. The only item that the police were able to recover was the damaged cash register.

[4] Kanela, you are 18 year old male of Malie and are unemployed. You were raised with your maternal family at Malie and you are the third of nine children. You attended Primary School and continue on to Leififi College where you completed your education at the end of year 11. You have favorable family references in support of your character. Your mother however explain that you have a tendency to spend time with the wrong crowd.

[5] Amosa, you are a 20 year old male of Malie and Fusi Safata. You were raised by your family in Malie. You are the fifth of nine children. You completed primary school and went on to Sagaga College where you left before completing year 9. You have generally rendered service to your family but also work at the Sheraton Hotel and Resort at Mulifanua. Your father has described you as reliable and a hardworking member of the family. Your Prior Conviction Record shows that you have prior convictions for burglary and theft entered in 2017. As well as in June 2020 for which you were sentenced to imprisonment.

[6] The victim of your offending is a 49 year old female of Nuu-Fou. She is an office worker. In her Victim Impact Report, she speaks of her mental state being unsettled because strangers had broken into their home without their permission; and fear for her family and children. This victim Amosa says that your family had been to them asking for forgiveness which has been accepted.

[8] For you Amosa, aggravating personal to you is the fact that you have prior convictions for similar offending. In respect of the second set of offending in May of this year, you were already on bail for the matters from February.

[9] In terms of the mitigating features of the offending there are none. I do however understand that all the properties stolen were from the incident on the 12th February has been recovered. For the 19th May offending, only the cash registered was recovered.

[10] In terms of the mitigating feature personal to you Kanela, I take into account the following:

[11] In respect of you Amosa, I take into account your early guilty plea. I do not accept that you are genuinely remorseful a conclusion also reached by the Probation Service.

[12] Kanela and Amosa, burglary and theft is a highly prevalent offence. It always almost involves young men such as yourselves thinking that to burgle people’s homes and businesses is a good idea. It is not. For you Amosa you have prior convictions and were on bail when you committed the May offending. You learned nothing from your earlier experiences and despite those experiences you decided to commit the same offence again. You have shown a blatant disregard for the law.

[13] For You Kanela, you have been foolish enough to follow Amosa into committing this offending. When you appear before me on the 2nd March for the burglary and theft from the 12 February this year, I directed that you attend the Salvation Army program to help you understand the dangerous of alcohol and how to deal with alcohol. I also expressly told you to make the most of that program as it may save you from imprisonment. Despite what I told you, you ignored what I said and again went with Amosa and burgled a shop on the 19 May. It is disappointing when young men like you waste the opportunities given to you and ignored what the Court have said to you with the hope that you will change your life.

[14] In respect of you Amosa, prosecution seeks a start point of 3 years imprisonment. That start point is too high as you are being sentenced only in respect of the incident on the 19th May. The start point I adopt is 9 months imprisonment. I uplift that by 2 months for your prior convictions and from that deduct 3 months for your guilty plea leaving an end sentence of 8 months imprisonment.

[15] While your offending is very serious Kanela, given your youth, prior good character and this being the first time for you to be sentenced by the Court, I have decided that the appropriate sentence to impose today is a non-custodial one. This is to focus on your rehabilitation because through your rehabilitation, our society is protected. The sentence is intended to help you change your ways and to encourage you not to re-offend in the future. At your age and given the circumstances of your offending, it is not too late for you to change your life nor at juncture, should the Court and the community give up on you. While the sentence will focus not only on your rehabilitation, it will also incorporate a significant community work component as a deterrence to you as well as to require you to give back to the community. Should you waste this opportunity and re-appear again for similar offending, you almost certainly should expect to go to prison as you will have demonstrated that you are unlikely to rehabilitate. Kanela, you must also understand that if you do not comply with the sentence I impose today, your sentence today can be cancelled by the Court and you can then be sent to prison. You told me on the 4th August that ‘ua e sasi’. Do not waste this chance. You have been remanded in custody now for some time and have seen what awaits you at Tanumalala should you come back.

[16] Amosa accordingly, on the charges of burglary and theft and intentional damage, you are convicted and sentenced to 8 months imprisonment. This sentence is cumulative to your current sentence of imprisonment.

[17] Kanela, on all charges before the Court, you are convicted and sentenced to 18 months supervision with the following conditions:

[18] Kanela, I remind you that if you do not comply with the supervision sentence impose on you today, you will be back before the Court and you will be re-sentenced. Make the most of this opportunity.

Supreme Court of Samoa

Police v Leapai [2020] WSSC 48 (20 August 2020)