Police v Faasavalu [2022] WSSC 23 (19 July 2022)

IN THE SUPREME COURT OF SAMOA
Police v Faasavalu [2022] WSSC 23 (19 July 2022)

Case name:	Police v Faasavalu
Citation:	[2022] WSSC 23
Decision date:	19 July 2022
Parties:	POLICE (Informant) v AVEI LAUINA FAASAVALU a.k.a FULUMANU FAASAVALU, male of Samata-uta & Moataa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Accordingly and in respect of the charges before the Court, you are convicted and sentenced as follows: (i) S441/22 burglary: 1 year 8 months imprisonment, less any period remanded in custody; (ii) All remaining burglary charges: 6 months’ imprisonment, that is to be concurrent to S441/22; (iii) S442/22 theft: 4 months’ imprisonment, concurrent to S441/22; (iv) All remaining theft charges: 2 months’ imprisonment, concurrent to S441/22.
Representation:	E. Tiitii for the Informant Defendant appears in Person
Catchwords:	Burglary – theft – multiple offences – offending while on bail – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Police v Ajawas [2013] WSSC 49; Police v Sau [2020] WSSC 44; Police v Sefo (Unreported Judgment dated 04 December 2022); Police v Tunu [2019] WSSC 14.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

AVEI LAUINA FAASAVALU a.k.a FULUMANU FAASAVALU, male of Samata-uta & Moataa

Defendant

Counsel: E. Tiitii for the Informant
Defendant appears in Person

Date: 19 July 2022

S E N T E N C E

1. Avei, you appear for sentence on eight charges of burglary and eight charges of theft. The two summaries of facts dated 13^th June 2022 has been read to you and you have accepted the summaries of facts.
2. In brief:
   • (i) On the 21^st of February 2022 at around 3.00am you committed a burglary and a theft at the Kelsall Tafeamalii Store at Vaipuna. The value of the goods stolen by you and a co-defendant was ST$606.60. These are informations S441/22, burglary and S442/22, theft;
   • (ii) On the same morning of the 21^st of February 2022, you and your co-defendant then burgled another store at Moataa, S443/22, and stole ST$357.70 worth goods, S519/22;
   • (iii) That same store was then burgled by you and your co-defendant another two times. These occurred on the 28^th March where you stole ST$234.70 worth of goods and that was burglary S523/22, and theft S524/22;
   • (iv) You then followed this up on 31^st March 2022, burglary S526/22, and theft of ST$144.90 worth of goods, S527/22;
   • (v) The fifth burglary was at Faatoia Family Mart on the 01^st April 2022 S514/22 where you stole ST$204.40 worth of goods and that’s S409/22;
   • (vi) On the 04^th April 2022, you then burgled the Vionarda Takeaway Restaurant at Vaivase-tai, S408/22 where you stole ST$30.00 in coins, S518/22;
   • (vii) Not content, you then burgled the shop One Hope Store S525/22 neighbouring the restaurant and stole ST$44.10 worth of goods, S412/22;
   • (viii) That same morning on the 04^th April 2022, you then also burgled Papa’s Store at Lelata S405/22 and stole ST$225.80 worth of good, S406/22. The total amounts of goods stolen by you was ST$1848.80.
3. You told the Probation Service that when you committed your offending, you were heavily intoxicated and could not recall what you had done. You have confirmed that when you committed these burglaries, you were on bail on a charge of common assault of a Chinese female shopkeeper in August of last year. You were granted bail by the District Court. In November, you were directed to reappear in March this year before the District Court but then failed to appear. A warrant of arrest was then issued for you. When you committed this offending you were on bail.
4. According to the two summaries of facts, you are a 22 year old male from Moataa. One of the Prosecution summary of facts states you were unemployed; the other states you are a carpenter employed by Faleono’s Carpentry. Why there is a discrepancy in the summaries of facts is a mystery.
5. According to your pre-sentence report, you grew up with your mother’s family in Samata-uta after your parents separated when you were young. You are the second eldest of four children and you completed school to Year 12.
6. About four years ago, you moved to Moataa where you have been living with your brother. According to an uncle, you moved to Moataa because you had been banished from Samata-uta for assaulting somebody. According to what the Probation Service has been told, you are generally good natured. However, when you get together with other youth from Matautu and Leone you then get involved in crime. You echoed the same sentiments in your pre-sentence report.
7. There are six victims to your offending. They are all shop operators. Both the Probation Service and the Prosecution have sought to confirm apologies extended to them as claimed by you; those note that apologies were extended to only two victims and not others.
8. The following are the aggravating features of your offending:
   • (i) You committed this offending whilst on bail for a District Court matter;
   • (ii) The large numbers of offendings committed by you;
   • (iii) One of your victim’s you burgled his store at Moataa three times.
9. In terms of mitigating features although you express remorse for your circumstances, you did not express any remorse for your victims when first given the opportunity. When this was raised with you, you expressed only half-hearted remorse for your offending and its impact on the victims. I will extend a nominal deduction for remorse.
10. Although you told the Court and Probation Service that you apologised to all victims when taken to the shops by police and which you said was accepted, that is not confirmed by the Probation Service or the Attorney General’s Office who have made contact with a number of the victims. Only one victim stated an apology had been extended by you and another could not recall whether it was you or your co-defendant that apologised. A nominal deduction will be granted for the apology. The only other mitigating factor is your early guilty plea.
11. Avei, burglary and theft by young people is very common and prevalent in Samoa. As I said in 2019 in Police v Tunu,^[1] it very often involves young men consuming alcohol and then burgling and stealing from homes and businesses around the country. It is so prevalent an offence that the community has very little tolerance for this type of offending any longer. So many in our community have been victims of burglaries. In your case, your offending also fits the profile of the people who commit burglaries – young, male and under the influence of alcohol. After consuming alcohol, you and your friend thought it a good idea to burgle and steal from shops around Apia.
12. For the victim of your offending at Moataa where you had been taken in by your brother, you burgled and stole from that victim three times over a six week period. That you continued to target this shop would have caused that store owner particular distress. On some mornings, you broke into more than one property. In total you burgled and stole from eight shops.
13. You are what is described as a spree burglar (see: Police v Ajawas^[2]). When you committed these offendings, you were also on bail from the District Court. Although you had been arrested by police and taken before the Court, this did not deter you from carrying out these burglaries and thefts.
14. Avei you are well and truly on the path where your life will be one of crime. You will offend, be arrested and imprisoned. It is a well-worn path that many young men before you have walked. You will continue to come before the Courts if you continue on this path and you will continue to be imprisoned. This is no future for you Avei. You told me you do not want to be in prison. If this is correct, it is important that you change your life, change your friends and I suggest stop consuming alcohol.
15. Prosecution seeks an imprisonment term with a start point of 2 ½ years’ imprisonment. I reviewed the authorities referred to by Prosecution; I have also reviewed other sentencing decisions including Police v Sau^[3] where 2 years and 4 months’ imprisonment start point was adopted for four burglaries and the value of the goods stolen amounted ST$5091.50. I’ve also considered Police v Sefo Niko^[4] where a start point of 2 years and 3 months’ imprisonment was adopted for a defendant sentenced on three charges of burglary, four charges of theft and one charge of escape involving goods valued at ST$3094.30.
16. Given the number of burglaries and thefts committed by you; the targeted burglaries of the Moataa victim; and that you committed these whilst on bail, I accept that the appropriate start point for sentence is 2 years and 6 months’ imprisonment on a totality basis.
17. Accordingly, I adopt S441/22 as the lead charge and deduct 4 months for your remorse and apology and from the balance 6 months for your guilty plea, that leaves an end sentence of 1 year and 8 months’ imprisonment on a totality basis. Accordingly and in respect of the charges before the Court, you are convicted and sentenced as follows:
    • (i) S441/22 burglary: 1 year 8 months imprisonment, less any period remanded in custody;
    • (ii) All remaining burglary charges: 6 months’ imprisonment, that is to be concurrent to S441/22;
    • (iii) S442/22 theft: 4 months’ imprisonment, concurrent to S441/22;
    • (iv) All remaining theft charges: 2 months’ imprisonment, concurrent to S441/22.
      

JUSTICE CLARKE

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^[1] [2019] WSSC 14 (18 January 2019).
^[2] [2013] WSSC 49 (31 July 2013).
^[3] [2020] WSSC 44 (14 August 2020).
^[4] (Unreported Judgment dated 04 December 2022).