Police v Filemu [2023] WSSC 43 (16 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Filemu [2023] WSSC 43 (16 August 2023)

Case name:	Police v Filemu
Citation:	[2023] WSSC 43
Decision date:	16 August 2023
Parties:	POLICE (Prosecution) v IOANE FILEMU, male of Letogo & Tanumalala (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	You are convicted and sentenced as follows: (a) Burglary information S1151/23 # 3 – 1 year 10 months imprisonment less time remanded in custody; (b) the remaining burglaries - charging documents 14 November 2022 and 18 January 2023, 12 months imprisonment, concurrent to S1151/23 # 3; and (c) both charges of theft, 4 months imprisonment, also concurrent to S1151/23 # 3.
Representation:	T. Sasagi for Prosecution Accused self-represented
Catchwords:	Burglary – theft – offending occurred multiple times – multiple victims – offended whilst on bail – early guilty plea – banished from village – custodial sentence.
Words and phrases:
Legislation cited:	Sentencing Act 2016, ss. 7(1)(b); 7(1)(c).
Cases cited:	Brewster [1998] 1 Cr App R 220; Police v Sau [2020] WSSC 44 (14 August 2020).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

IOANE FILEMU male of Letogo and Tanumalala.

Accused

Counsels: T. Sasagi for Prosecution

Accused self-represented

Sentence Submissions: 16 August 2023

SENTENCE

The Charge

1. Ioane, you appear for sentence on three charges of burglary and two charges of theft as set out in Charging Documents dated 14^th November 2022; 18^th January; and 3^rd July 2023. The maximum penalty for burglary is 10 years imprisonment and for theft, 1 and 7 years imprisonment for the thefts you committed.

The Offending

2. According to the Prosecution Consolidated Summary of Facts accepted by you, on the 16^th October 2022 around 3pm, you went to the 28 year old female victim’s home at Letogo. She was under the influence of alcohol and while speaking to her friend on messenger video call, she fell asleep. You entered her home and stole a Samsung A21 phone valued at $1,256.00. As the victim’s phone was still connected to her friend, you told the victim’s friend not to call the phone again. After Police concluded their investigation, you were arrested, taken to the Apia Police Station and charged. The phone was recovered. On the 14^th November, you pleaded guilty to the charge and were granted bail pending sentence.
3. On the 22^nd December 2022 while on bail, you committed your second burglary. On this occasion, you approached the 50 year old male victim’s home also at Letogo at around 11.00pm. You cut the screen wire with a machete and gained entrance inside the house. You went through the victim’s belongings while the victim was asleep in his room. The victim woke to the noises and suspecting that someone was in the house, he quickly walked out to check. He saw you and chased after you. Unfortunately for you, the victim was Pala Brian Lima. I doubt you had any chance of outrunning him. You were again caught, taken to the Apia Police Station and charged. You were remanded in custody from the 23^rd December 2022 and granted bail on the 30^th January 2023 when you entered your guilty plea. You were again granted bail.
4. On the 16^th February 2023 between 9am and 10am, you committed your third offending. You went to the third victim’s home at Vailele while the victim was in her bedroom with her baby brother. You approached the back of the home and removed the window louvres. While inside, you stole one (1) box of 3lb Corned Beef valued at $70.00. Later that morning after it was realized that the Corned Beef had been stolen, the victim’s parents went to the shop down the road and discovered that you had sold the Corned Beef to the shop owner that day. The Corned Beef was recovered. The total value of the goods stolen by you was ST$1,326.00.

Background of the Accused

5. You are a 23 year old male of Letogo. You are single and unemployed. You completed school to year 11. After completing school, you were employed by Pacific Recycles and Betham Brothers Enterprises (BBE). You told Probation Service you were fired from BBE for drinking alcohol on the job. You then worked on a family plantation. You were banished from Letogo for your offending. Your aunty told the Probation Service your offending has tarnished the family name in the village and she did not wish to provide a testimony in support of you.

The Victim

6. There are three (3) victims to your offending. Two (2) of these victims have given Victim Impact Reports. The first female victim from Letogo confirms you have not apologized to her. The second victim, the twenty-one (21) year old female says that since you burgled their home, she is now afraid of staying at home by herself. You have also not apologized.

Aggravating Features

7. The following are the aggravating features of your offending:
   • (i) The high prevalence of this offending in the community;
   • (ii) You committed your second and third burglaries after being bailed by the Court after each of the earlier burglaries (section 7(1)(c), Sentencing Act 2016);
   • (iii) The number of burglaries committed by you; and
   • (iv) Your burgled the homes of your victims (section 7(1)(b), Sentencing Act 2016).

Mitigating Features

8. The only mitigating features is your prior good character, village banishment and early guilty plea. I do not accept that you are remorseful. The only genuine remorse you have is for yourself and the predicament you are now in. When given the opportunity to address the Court, you spoke only of the impact of the offending on you and your family and not at all about your victims.

Discussion

9. Ioane, as the Courts have said so many times before, burglary accompanied by theft is very common and highly prevalent in Samoa. Very often, it is committed by young men such as yourself, sometimes under the influence of alcohol, who foolishly think breaking into people’s homes has no consequences. So many members of the community have been victims to this type of offending. In Police v Sau [2020] WSSC 44 (14 August 2020), the prevalence of burglaries was described as “a scourge in the community.”
10. You Ioane and others who might wish to follow your footsteps must understand that burglaries, particularly of people’s homes, is a very serious offence. It is a serious offence because it may involve considerable loss of goods and even when not valuable in money terms, it may be very valuable to the victim. The other reason why it is very serious is that as cited from the English tariff case of Brewster [1998] 1 Cr App R 220 where Lord Bingham CJ observed (at 225):

“...Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.”

11. The sense of insecurity felt by many victims also results in victims of burglaries increasing security around their homes and businesses. We are increasingly living in a community, particularly in and around Apia, surrounded by fences, gates, dogs, alarms, cameras and barred windows. These are some of the other significant costs and consequences associated with the prevalence of burglaries in our community. This is becoming normal because of people like you.
12. In your case Ioane, despite being arrested, charged and brought before the Court after your first burglary on the 16^th October 2022, you then went and committed your second burglary on the 22^nd December 2022. You were then again arrested, charged and brought before the Court after being remanded in custody for over a month. When again granted bail on the 30^th January 2023, you then went and burgled the third home just two (2) weeks later on the 16^th February. This demonstrates that your earlier dealings with Police and the Courts did not in any way deter you from continuing to re-offend. You also showed complete contempt for the Court and the Court process.
13. You were also given two opportunities to attend the Salvation Army program in an effort by the Court to help you turn your life around. You chose not to attend the program and then also failed to appear twice before the Court when you were bailed to re-appear. You are a serious risk to the community of further offending.
14. Prosecution seeks an imprisonment term with a start point of 2 years. In my view, the very serious aggravating features of your matter is that the second and third offences were committed while you had been granted bail twice as well as the number of burglaries you committed. You also committed 3 burglaries of people’s homes. A key purpose of sentencing you today is to denounce your conduct and behaviour and to deter you and others from committing this type of offending. The 2 years start point proposed in my view is too low to achieve those purposes. I will adopt a 3 year sentence start point.
15. It should be clear to you Ioane that if you continue to commit burglaries, you will go to prison. I sincerely hope that with today’s sentencing, you will when you are released from prison turn your life around.
16. Adopting burglary charge 1151/23 # 3 as the lead charge, from the 3 year start point, I deduct 4 months for your prior good character, 3 months for your banishment and 7 months for your early guilty pleas leaving an end sentence of 1 year 10 months imprisonment.
17. Accordingly, you are convicted and sentenced as follows:
    • (a) Burglary information S1151/23 # 3 – 1 year 10 months imprisonment less time remanded in custody;
    • (b) the remaining burglaries - charging documents 14 November 2022 and 18 January 2023, 12 months imprisonment, concurrent to S1151/23 # 3; and
    • (c) both charges of theft, 4 months imprisonment, also concurrent to S1151/23 # 3.

JUSTICE CLARKE