Police v Samuelu [2022] WSSC 15 (4 March 2022)

IN THE SUPREME COURT OF SAMOA
Police v Samuelu [2022] WSSC 15 (04 March 2022)

Case name:	Police v Samuelu
Citation:	[2022] WSSC 15
Decision date:	04 March 2022
Parties:	POLICE (Prosecution) v FRANCIS SAMUELU, male of Palisi (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 7 months’ imprisonment less any time in custody.
Representation:	V. Faasii for Prosecution Defendant appears in Person
Catchwords:	Burglary – theft - early guilty plea – first offender – home invasion – custodial sentence.
Words and phrases:	Intoxicated at time of offending – items recovered and returned – Defendant completed Salvation Army program.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FRANCIS SAMUELU, male of Palisi

Defendant

Counsel: V. Faasii for Prosecution
Defendant appears in Person

Date: 4 March 2022

SENTENCE OF TUATAGALOA J

1. The defendant, a 24 year old male from the village of Palisi appears for sentence on the charges of burglary and theft, that took place on the 13^th June 2021.
2. The victim (s) is a family in the same village as the defendant.
3. According to the summary of facts/Pre –Sentence Report (PSR) the defendant earlier on the night of the offending was drinking with some other youths of his village and when they dispersed the defendant proceeded to the house of the victim.
4. The family were asleep when the defendant entered the house through the sliding door that he said was unlocked. From the Victim Impact Report (VIR) the husband said that the properties stolen were in his daughter’s room where she was sleeping and also his wife’s phone that was charging right next to her while they were sleeping in their room. According to the VIR his daughter said that she woke up to find the defendant in her room fearing for her safety she did not make any noise until the defendant had left her room and only then did she ran over to her parents’ room to tell them.
5. The defendant in the PSR said that he sold the items he stole of an Xbox, IPAD, a laptop and a backpack. The properties were said to have a total value of $5,306.00. All these items were later recovered by the police and returned to the victim.
6. The defendant currently resides in Mulifanua with his cousin and not at Palisi where the offending took place. The defendant was under the influence of alcohol when he committed the offending, was referred to undertake a six weeks’ program on alcohol and drugs with the Salvation Army on 1^st November 2021. He has completed that program and now appears for sentence.

Aggravating features

7. The offending accordingly to what was relayed by the defendant as in his PSR the offending was intentional and planned. That is, the defendant targeted the victims’ house as he went there directly when their drinking session finished (see paragraph 3).
8. The properties stolen are quite expensive to a total value of $5,306.00
9. It is noted by the victim (husband) that the defendant had never apologized but this may be because of any bail conditions imposed by the Court.
10. The VIR says that the daughter whose bedroom the defendant went into and removed IPAD and Xbox no longer feels safe to sleep in her room and now always sleeps with the light on. His wife could not believe that the defendant was in their bedroom right next to her when he removed her phone from next to her.

Mitigating factors

11. The Court takes into consideration in sentencing the following: the defendant’s early guilty plea; that the items were recovered and returned; the defendant has successfully attended the six weeks Salvation Army program he was ordered by the Court to attend. The Report from the Salvation Army dated 16^th December 2021 provides the Court with the six sessions that the defendant attended (refer to Report in file). The Report also provides an Individual Summary which gives the background of the individual, his usage of alcohol, the person’s background and what drove him to drink. The Report says of the defendant - “Francis presented as being remorseful for his actions and recognized the positive impact that attending the program could have on his life. Francis reports that he has been abstinent from alcohol for the duration of the program. He has engaged and participated well in all sessions”.
12. The defendant is a first offender.

Discussion:

13. This was a home invasion while the family were asleep. The defendant by going into the bedrooms while the family members were asleep is very dangerous and shows total disregard by the defendant of the safety of the family. The appropriate Samoan word for such behavior is ‘lepopoi’ and ‘fia ulavale’.
14. The defendant being truly remorseful and said to have told the Salvation Army that he has been abstinent since the offending is very much questionable for the following reasons:
    • (i) It is noted in the PSR that written testimonials were provided in the defendant’s favor, however the probation officer who prepared the PSR found out that the written testimonials were deceitful. These testimonials are from a family matai member and from a former pastor of a Pentecostal church at Vaitele-uta.
    • (ii) The victim husband also says in the VIR that he managed to contact the defendant on messenger on the same day he stole the stuff to have it returned but the defendant denied stealing the properties saying that it was not him.
15. Having attended the Salvation Army Psycho Educational Programs on the use and impact of alcohol and drugs has no doubt helped defendant learnt the impact or effect of alcohol use on his cognitive behavior resulting in offending.
16. Prosecution has recommended for a custodial sentence with a starting point of 15 months’ imprisonment. I agree that the circumstances of this offending and for the matters referred to in the above paragraphs warrant a custodial sentence.

Sentence

17. A 12 month starting point is appropriate less three (3) months for being a first offender leaving 9 months. I further give a discount of 25% for the early guilty plea amounting to 2 months. The end sentence is 7 months.
18. The defendant is convicted and sentenced to 7 months’ imprisonment less any time in custody.
    

JUSTICE TUATAGALOA