Police v Tusiga [2020] WSSC 53 (24 July 2020)

SUPREME COURT OF SAMOA
Police v Tusiga [2020] WSSC 53

Case name:	Police v Tusiga
Citation:	[2020] WSSC 53
Decision date:	24 July 2020
Parties:	POLICE v SIPUNI TUSIGA male of Aele and Mulifanua
Hearing date(s):	-
File number(s):	Charging document dated 16 December 2019
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of burglary, you will be convicted and sentenced to two (2) years in prison. Remand in custody time to be deducted. - On the charge of theft convicted and sentenced to six (6) months in prison but to be served concurrently with burglary. - In respect of the indecent assault charge Sipuni you will be convicted and sentenced to two (2) years in prison. The leniency the court extends to you today is that this term is to be served together with your burglary term, less remand in custody time.
Representation:	L Faasii for prosecution Defendant unrepresented
Catchwords:	Burglary and theft – indecent assault – previous convictions – home invasion
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SIPUNI TUSIGA male of Aele and Mulifanua.
Defendant

Counsel:
L Faasii for prosecution
Defendant unrepresented

Sentence: 24 July 2020

S E N T E N C E

1. The defendant faces three charges one of burglary and theft of the complainants house on 18 November 2019 at Aele and indecent assault of the complainants wife in the house when he broke in.
2. He pleaded guilty to the burglary and theft but not guilty to the indecent assault. The matter went to trial and the court by decision dated 20 February this year found the defendant guilty of committing the indecent assault.
3. The facts as per the defendants own cautioned statement to the Police says that on the night this happened he was drinking a “fagu maso” and other alcohol with friends. When the drinking party was over he went to the complainants house removed two louvers from one of the windows and entered the house. Inside the family were asleep in particular in one bedroom was the female complainant and her daughter. He took the charger of the complainants phone and a dozen eggs but denied taking a sim-card from the complainants phone. But I am satisfied from the complainants evidence that he also took the sim-card from her phone.
4. The defendant said at trial in his cautioned statement that on his way out he bumped the sleeping complainants leg and that was what woke her up. The complainant said what woke her up was somebody touching her pubic hairs.
5. I am satisfied from the complainants evidence that is what happened and that the defendant therefore committed an indecent assault as part of his burglary.
6. This is not the first time this sort of thing has come before the court this seems to be a new trend for burglars. They enter people’s homes at night and after stealing what they come to steal they then start committing indecent assaults on females inside their homes. It is a worrying trend that the court must respond to.
7. The defendant is no stranger to the court process, he has a number of previous convictions including one for a term of imprisonment for burglary and theft. He has confirmed this morning his previous convictions. Sipuni you must understand that if you keep doing this you will go back to prison every time and that the sentences will get longer and longer.
8. The most serious crime he faces is that of burglary which carries a ten (10) maximum penalty by law. And it is not only a prevalent offence in our community but as stated the community needs protection from people who burgle other people’s houses. The court needs to keep sending the message to burglars and would be burglars that if you do this prison is your end. If you do this again and again prison will become your home.
9. I have found the prosecution submission and case authority totally unhelpful Ms Faasii. The suggested start point in the Memorandum of twelve (12) years in prison must be a mistype.
10. Considering all the circumstances I will start sentence at two (2) years in prison for the burglary. I uplift that to two and a half (2½) years to reflect the defendants previous convictions. The defendant is not a first offender and it appears there has been no reconciliation or apology in this matter. The pre-sentence report says a telephone interview with the complainant revealed there has been no reconciliation or apology made. The complainant also told the Probation Office only her phone charger was returned to her on the day that the Police apprehended the defendant.
11. The only deduction available for you Sipuni is for your guilty plea but that is of limited valued because the matter had to go to trial anyway on the indecent assault charge. But I will give you six (6) months credit for that, leaves a balance of two (2) years in prison.
12. On the charge of burglary, you will be convicted and sentenced to two (2) years in prison. Remand in custody time to be deducted.
13. On the charge of theft convicted and sentenced to six (6) months in prison but to be served concurrently with burglary.
14. In relation to the charge of indecent assault on the sleeping women that carries a five (5) year maximum penalty by law. This is a case of home invasion offending on a sleeping female who was alone and vulnerable because her husband was sleeping at the back room of the house. The offending was interrupted by the victim waking up causing you to run away. There are no mitigating factors for that offending.
15. In respect of the indecent assault charge Sipuni you will be convicted and sentenced to two (2) years in prison. The leniency the court extends to you today is that this term is to be served together with your burglary term, less remand in custody time.

JUSTICE NELSON