Police v Maseuli [2021] WSSC 37 (28 July 2021)

IN THE SUPREME COURT OF SAMOA
Police v Maseuli [2021] WSSC 37

Case name:	Police v Maseuli
Citation:	[2021] WSSC 37
Decision date:	28 July 2021
Parties:	Police v Viliamu Maseuli male of Siusega and Fusi Safotulafai Savaii.
Hearing date(s):	14 June 2021
File number(s):	S 959/21/S960/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice
On appeal from:
Order:	- A period of 6 months Supervision. You are required to meet with a probation officer within 48 hours of the giving of this sentence, and you are to comply with the standard conditions for the sentence of supervision as provided in s.17 of the Community Justice Act 2008. - You are to carry out 60 hours of Community work.
Representation:	T Sasagi and E Tiitii for prosecution Defendant – self represented
Catchwords:	burglary – theft –pleaded guilty to both charges –starting point for sentencing – sentence –community based sentence
Words and phrases:	no evidence of the actual amount of the money stolen – first offender in terms of offences involving property –money has been recovered
Legislation cited:	Community Justice Act 2008 s.17 Sentencing Act 2016, Part 3
Cases cited:	Police v Ituau Police v Tapana Police v Elame Police v Tafileo Viliamu. Police v Panapa Police v Talataina
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

VILIAMU MASEULI male of Siusega and Fusi Safotulafai Savaii.
Defendant

Counsel:
T Sasagi and E Tiitii for prosecution
Defendant – self represented

Sentence: 28 July 2021

SENTENCE OF PERESE CJ

1. The defendant is a 31-year-old male of Siusega and Fusi Safotulafai.
2. He has plead guilty to two charges – one of burglary and the other of theft.
3. The summary of facts provides that Mr Maseuli was employed as a stocks person at the Bargain Wholesale Group Limited at Vaitele-tai.
4. On 10 May 2021 at around 4am in the early hours of the day, the defendant went to his workplace at Vaitele-tai. When he arrived, Mr Maseuli entered the building through a gap without lawful authority. Whilst inside the warehouse, he stole $3,500SAT in cash from the office. The defendant left the scene with his co-defendant. The theft was discovered later that day when Mr Maseuli and his brother were identified as the perpetrators through security camera footage.
5. The sum of $1,500 was returned to the Police. Mr Maseuli claims that this was all the money he stole. The victim in this case is said to be Jesse Shi, the owner of the business, and it is alleged that the sum of $3,500 had been stolen. There is no evidence of the actual amount of the money stolen. If it was only $1,500 then all the money has been recovered. If the amount of the money stolen was $3,500, then the victim is still out of pocket in the amount of $2,000.
6. The sentencing in this matter reflects that all the money has been recovered.
7. In our legal system, the Prosecution must prove all the elements of the offence. We know from the summary of facts in this case that the sum of $1,500 was admittedly stolen and recovered by the Police. However, the defendant maintains that he did not steal the larger sum of $3,500. In these circumstances the Prosecution are obliged to prove that the amount of the money they, and or the victim, say had been stolen, if they wish to rely on the value of the amount stolen in their sentencing submission. Failing to prove that the sum of $3,500 was stolen means that Mr Maseuli is entitled to the benefit of the inference that the money which had been stolen had been fully recovered.
8. The prosecution in this case submits that a proper starting point for sentencing is 18 months. I consider that to be manifestly excessive, for the following reasons:
   • (a) The offender is effectively a first offender in terms of offences involving property. I note that he has had a previous conviction for possession of narcotics, but that was dealt with in the Drugs and Alcohol Court, and he successfully completed his program.
   • (b) He has good references from his partner who considers him a trustworthy and reliable person, and by his religious leader and current employer who also speak well of him.
   • (c) The stolen money has been fully recovered.
   • (d) The offending appears to have been opportunistic and unplanned.
   • (e) The Probation service advise that the defendant is suitable for a community-based sentence.
9. The Prosecution memorandum provides references to other burglary/theft cases. I take the view, however, that this case is quite different from those relied on by the Prosecution. Police v Ituau, and Police v Tapana were effectively home invasion type cases. The matter of Police v Elame is a case like this matter – where His Honour Justice Clarke imposed a sentence of 3 months imprisonment. But, unlike this case, the defendant Elame had previous convictions for similar offences. Another case relied on by the Prosecution is Police v Tafileo Viliamu. That was a case where a 21-year-old visitor from Australia where the Court that he had become a professional at burglary at an even younger age; he also had previous convictions of similar offending and he re-offended whilst serving. Police v Panapa was a home invasion case and can be discounted, and in Police v Talataina the defendant received an end sentence 5½ months imprisonment after he broke into M&K Mart and stole $4,414 in cash or value.
10. In my view, the principles and purposes of sentencing as set out in the Sentencing Act 2016 and referred to in paragraphs 2 and 3 of the Prosecution Sentencing Memoranda are satisfied by a combined sentence of supervision and community work. These are community-based sentences as provided for under the Community Justice Act 2008, and Part 3 of the Sentencing Act 2016.
11. Mr Maseuli, on both the charges to which you have pleaded, you are today sentenced as follows:
    • (f) A period of 6 months Supervision. You are required to meet with a probation officer within 48 hours of the giving of this sentence, and you are to comply with the standard conditions for the sentence of supervision as provided in s.17 of the Community Justice Act 2008.
    • (g) You are to carry out 60 hours of Community work.
12. You may stand down.

CHIEF JUSTICE