Police v Tusiga [2020] WSSC 6 (17 January 2020)

SUPREME COURT OF SAMOA
Police v Tusiga [2020] WSSC 6

Case name:	Police v Tusiga
Citation:	[2020] WSSC 6
Decision date:	17 January 2020
Parties:
Hearing date(s):
File number(s):	S2187/19
Jurisdiction:
Place of delivery:
Judge(s):
On appeal from:
Order:
Representation:
Catchwords:	bail application – bail denied – burglary – theft – indecent assault – real and significant risk of reoffending – history of offending
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016 s.101
	Crimes Act 2013 ss. 161 and 165(e)
Cases cited:	Police v Martin [2017] WSSC 171
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

SIPUNI TUSIGA male of Mulifanua.
Defendant

Representation:
A. Matalasi
Self-Represented

Ruling:17^th January 2020

RULING ON BAIL APPLICATION

1. The accused has pleaded guilty to burglary and theft and not guilty to an indecent assault contrary to section 161 and 165(e) of the Crimes Act 2013. All three charges stipulate that the offending accepted and alleged occurred at Aele-fou on the 18^th of November 2019 and involved essentially the complainant family members.
2. The accused applies for bail. The prosecution opposes the grant of bail on the grounds that the accused is a real and significant risk of re-offending, if granted bail. In opposition to bail, prosecution has filed an affidavit by Constable Pasefika Tavae opposing bail and attaching the accused’s prior conviction record.
3. The accused does not dispute his prior conviction record. Relevantly, he has prior convictions for burglary and theft entered on the 18 November 2016, 1^st March 2018 and the 18^th February 2019. For the February 2019 burglary and theft, he was imprisoned for 5 months. He has now pleaded guilty to a further burglary and theft in these proceedings that occurred on the 18^th November 2019.He also has a conviction for actual bodily harm entered in the District Court on the 22^nd May 2014 and breach of sentence entered on the 1^st March 2018.
4. Given the accused’s prior conviction record, section 101 of the Criminal Procedure Act 2016 (“CPA”) applies. It is for the accused to satisfy me on the balance of probabilities that he will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person (section 101(2)(b) and 101(3) of the CPA). Similarly, as he has pleaded guilty and sentence is pending on those charges, section 103 is also relevant.
6. I addressed the reverse onus in Police v Martin [2017] WSSC 171 (4 April 2017). I do not propose to restate the law of the application of the reverse onus in a bail application but adopt and apply the law as discussed in Police v Martin (supra).

Background:

7. The accused has not filed any evidence in support of his application for bail. I did however hear from the accused directly in his application for bail. He accepts his previous convictions, he is remorseful and says if granted bail, he will not re-offend. He wishes to return to his family, particularly his parents. He does not enjoy it at prison and asks for another chance.
8. For the prosecution, they rely on the affidavit of Constable Tavae and the accused’s prior conviction record to speak for itself.

DISCUSSION

9. The accused has pleaded guilty to burglary and theft. It was a burglary of a residential home that based on the accused Caution Statement, he entered whilst the victims were asleep.
10. I have heard from the accused in terms of his application for bail. Fundamentally, he expresses a desire to return to his family, particularly his parents. He says he will not re-offend if granted bail and he does not wish to go back to Tanumalala Prison.
11. Given the accused prior conviction record including for similar offending and that the burglary was that of a residential home, it is likely though not inevitable that he will be sentenced to a short term of imprisonment for the charges of theft and burglary. In terms of section 103 of the CPA, I am not satisfied at this juncture that the interests of justice require that I grant bail to the accused. If his remand in custody however becomes lengthy because of delays in sentencing or the hearing of the charge of indecent assault, the interests of justice may at a later point in time come in favour of the accused.
12. I am also not satisfied that he should be granted bail given his prior conviction record and the application of section 101 of the CPA. In this regard, I am not satisfied on the balance of probabilities that if granted bail, the accused will not, while on bail, commit an offence involving violence against, or danger to the safety of, any other person. He has a history of offending which includes violent offending. In 2019, he was convicted of burglary and theft in February for which he was imprisoned for 5 months and on his release within only a period of a few months, he again committed burglary and theft. His history of offending is increasing in frequency.
13. Based on the material before me and the history of offending, I am not satisfied that bail should be granted. In determining bail, my primary considerations are the need to protect the safety of the public.

CONCLUSION:

14. Bail is denied.
15. This matter is adjourned for mention Monday 27 January 2020 at 10.00am for an early hearing date to be scheduled. Prosecution is to liaise with the Registrar on an early available hearing date. You are remanded in custody to re-appear on the 27^th January at 10.00am.

JUSTICE CLARKE