Police v Samoa [2022] WSSC 67 (13 December 2022)

SUPREME COURT OF SAMOA
Police v Samoa [2022] WSSC 67 (13 December 2022)

Case name:	Police v Samoa
Citation:	[2022] WSSC 67
Decision date:	13 December 2022
Parties:	POLICE (Prosecution) AND TAULAUNIU TUALIMA SAMOA male of Satapuala. (Defendant)
Hearing date(s):	09 November 2022
File number(s):	S588/22, Charging Document dated 13/06/22
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Convicted and sentenced to 18 months imprisonment, sentence to commence from 30 November 2022.
Representation:	T. Sasagi for prosecution Defendant in person
Catchwords:	- theft – found guilty as charged
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAULAUNIU TUALIMA SAMOA male of Satapuala.
Defendant

Counsel:
I Tanielu and T Sasagi for the prosecution
Defendant in person
Hearing: 09 November 2022
Sentence: 13 December 2022

S E N T E N C E

1. The defendant faces two charges one of burglary and one of theft. On trial day prosecution were granted leave to withdraw the burglary charge due to the absence of the complainant, that charge is accordingly dismissed. The defendant maintained his not guilty plea to the theft charge and trial proceeded on that matter.
2. Defendant was unrepresented by legal counsel and told the Court he was pleading not guilty to the theft of the complainants I-phone, tablet and chargers because he found these properties “in the plantation worked by the people of his village”.
3. After hearing the evidence including that of the defendant, I advised him of the courts conclusion that I did not believe his evidence. As it was highly unlikely a thief of such properties would hide it in such an obvious and public place frequented by villages for everyday purposes. It was also against the defendant that his evidence was inconsistent with the credible evidence of members of his own aiga that he came to them trying to sell these items. And that he made no mention of finding such properties in the plantation or elsewhere or making enquiries about possible owners.
4. The prosecution evidence also established that the tablet was in working order and condition and when turned on, it showed a photo of the “palagi” owner the complainant. The complainant lives in the area and was known to the defendants relatives as he usually shops at the village store. It is reasonable to assume the defendant who also lives on the lands of the family would have been familiar with the complainant.
5. This was inconsistent with the defendants evidence that after finding the properties in the planation he stored them in his fale for two or three months before trying to sell them. It is unlikely the battery of a tablet would continue to function after two or three months.
6. I accordingly found the defendant guilty as charged on the evidence. The court also advised the defendant that even on his own version of events, holding the properties for two or three months without enquiring as to potential owners and then attempting to sell them was within the legal definition of theft. So that even on his own evidence he had committed in law the offence of ‘theft’. As he had no counsel representing him it was not necessary to refer him to the section 161 definition of ‘theft’ in the Crimes Act 2013.
7. In fact the defendant may well be aware of this as this is not his first encounter with the law. It subsequently emerged he has previous convictions for burglary and theft and in fact he is currently serving a term of imprisonment for a number of offences. Including theft of other properties belonging to the complainants employer Aggie Greys Sheraton Hotel and Resort at Mulifanua and trespassing onto the Resort property for these purposes. The complainants house is located on the Resort property and presumably the matters stolen in this case were therein locked.
8. The prosecution submit that in order to achieve the relevant principles of sentencing as set out in the Sentencing Act 2016 i.e. accountability, acceptance of responsibility, denunciation and deterrence, the start point for sentence should be at least 15 months in prison. The maximum penalty for this kind of theft is 7 years in prison given the value of the items stolen.
9. The court accepts the prosecution recommendation but this must be upgraded by 6 months considering the defendants record. I will add a further 3 months to that because it appears from the defendants record he committed this particular theft while serving a suspended sentence for other offences. It is 3 months only because he is within the suspended period by 12 days but had it been more, a greater uplift would have been appropriate.
10. From that start point of 2 years the defendant is entitled to very few deductions and the first concerns his plea. As indicated to him at trial, although I have some doubts, after listening to him I will accept that had he understood taking these properties was still “theft” as a matter of law, he would have probably pleaded guilty to that as well and spared the time and expense of a trial. I will therefore give him a partial benefit for his guilty plea and deduct 6 months from the start point of sentence, leaving a balance of 18 months.
11. There is also the issue of when this sentence is to commence. The defendant has provided documentary evidence throwing into doubt when after deductions for time served awaiting trial his current sentence expires. These are copies of the police records and they show two different sentence expiry dates, one at the end of November 2022 and the other in January 2023.
12. The Police have not produced any further evidence establishing which is the correct end date for the defendants current sentence. As this is a sentencing matter I will therefore exercise leniency towards the defendant and take the interpretation most favourable to him and order that his 18 months sentence commence from 30 November 2022. His sentence is therefore 18 months imprisonment commencement from that day.
13. O le fa’aiuga lena o le mataupu lenei e 18 masina le fa’asalaga mo le moliaga lenei. Ae amata na tuli le fa’asalaga mo le mataupu lenei mai le aso 30 o Novema. Ua tele au solitulafono Taulauniu, ua tatau ona tu’u ia tulaga fa’apea, aua o taimi uma lava e molia mai ai oe i luma o le tulafono, lona uiga na’o le alu i luga o fa’asalaga. Ae o le mataupu lena o oe lava ma lau oe fuafuaga. Ae o le fautuaga a le Fa'amasinoga e sili ona tu’u nei ituaiga amio ae vaai fa’alelei le tou aiga ma saili nisi mea e aoga mo lou olaga i lo nei mea e maimau ai le taimi. Ae mo le mataupu lenei o le fa’aiuga lena ua taunu’u iai le Fa'amasinoga, ua e malamalama? (Defendant: O lea lava).
    

JUSTICE NELSON