Police v Kelekolio [2023] WSSC 53 (21 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Kelekolio & Anor [2023] WSSC 53 (21 August 2023)

Case name:	Police v Kelekolio & Anor
Citation:	[2023] WSSC 53
Decision date:	21 August 2023
Parties:	POLICE (Informant) v FELISE KELEKOLIO male of Taufusi & Fausaga Safata and SONNY WILSON male of Taufusi (Defendants)
Hearing date(s):
File number(s):	Charge (a), (b), (c), (d), (e), (f), (g) per Charging Document dated 20/12/22.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	Felise, on each of the three counts of burglary, you are convicted and sentenced to 12 months’ imprisonment. On each of the three counts of theft, you are convicted and sentenced to six months’ imprisonment. On the one count of possession of narcotics, you are convicted and sentenced to three months’ imprisonment. All sentences will be served concurrently less time you have spent in custody. For Sonny, on each of the three counts of burglary, you are convicted and sentenced to four months’ imprisonment. On each of the three counts of theft, you are convicted and sentenced to three months’ imprisonment. All sentences will be served concurrently.
Representation:	I. Atoa for the Prosecution S. Ainuu for the First Named Defendant Second Named Defendant in person
Catchwords:	Burglary, Theft, Possession of Narcotics.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 33; 161; 165(b) & 174. Narcotics Act 1967 ss.7 & 18.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

FELISE KELEKOLIO male of Taufusi and Fausaga Safata and SONNY WILSON male of Taufusi.

Defendants

Counsel: I. Atoa for the Prosecution

S. Ainuu for the First Named Defendant

Second Named Defendant in person

Sentence: 21 August 2023

SENTENCE

Charges

1. You appear this afternoon for sentence on three joint charges of burglary and three joint charges of theft. The maximum penalty for burglary is ten years imprisonment and for theft, seven years imprisonment given the value of the items stolen. There is another charge of possession of narcotics against Felise only. The maximum penalty is fourteen years’ imprisonment. The record shows that you had denied some of the charges but before trial commenced on the 14th April, you vacated your denials and entered guilty pleas to those charges.

Offending

2. According to the amended consolidated summary of facts, there are three incidents of offending. The first occurred at Taufusi on the 17th September 2022. Between 11pm and 1am the following morning, Felise entered the AST building without authority or permission. He stole numerous items including food, electrical appliances, tools and building materials whilst Sonny remained outside to keep a look out. The total value of items stolen was $3,910.00.
3. The second incident occurred at Taufusi also almost three months later on the 2nd December 2022. The complainant is Matini Williams. Between 12am and 1am, the victim was at home watching TV. He turned off his lights and went outside where you were watching him from afar. When he left, Felise entered his house without authority and stole a 14 inch flat screen TV with a value of $1,000.00. Sonny remained outside to keep a look out. The TV was subsequently sold to a third party.
4. The third incident occurred four days later on the 6th December 2022 involving the Ah Liki building at Taufusi. Around 1am Felise broke into the premises and stole a computer set worth $6,000.00 and $40.00 in cash. Sonny again remained outside. The break in was reported to police, you were apprehended and questioned by police on the same day. The total value of the items stolen was $10,950.00. A body search on Felise at the police station found a marijuana cigarette wrapped in foil which weighed 0.02 grams.
5. From what you told probation it is clear that alcohol was involved in some of the offending. Sonny is his pre-sentence report explains in detail both your involvement. That Felise was the mastermind and he was just following instructions. You Sonny could have simply ignored Felise or talked him out of it. But you did not, not once or twice but on all three occasions.

Aggravating Factors

6. I consider that:
   • (i) there was planning and premeditation – you carried out the break ins late at night and early the following morning when the possibility of detection was minimal;
   • (ii) this was continuous offending involving multiple victims over a period of three months, and there was a real likelihood that you would have continued if you were not caught;
   • (iii) the significant value of the items involved. The total value was $10,950.00
   • (iv) impact on the victims;
   • (v) the prevalence of these types of offending – despite the deterrent sentences by the court, there is a continuing climb in cases of youths engaging in alcohol drinking sessions before they go out breaking into homes and stealing from members of the public.

Mitigating Factors

7. I consider your:
   • (i) guilty pleas to the charges though some were entered late;
   • (ii) personal circumstances - For Felise, you are 19 years of age and second of seven children. You have had a good education having completed high school. You studied plumbing at Don Bosco Technical Institute but did not complete. You worked as a tour guide for Return to Paradise. You have a one year old son who is under the care of your parents. Your sister speaks of your good character in your pre-sentence report and seeks leniency on your behalf. You are a first offender.
   • (iii) For Sonny you are 20 years of age and the only child of your parents. Your formal education ended at year 10 level. You have worked at a furniture workshop at Taufusi and at the time of offending you were doing landscaping work for one of your aunts. You are in a defacto relationship and have three young children. Your father told Probation that your offending is a result of you mixing with the wrong group of friends. There is a testimonial by the mayor of Taufusi. You are also a first offender.

Discussion

8. Prosecution recommend a custodial sentence with a start point of four years. I have reviewed the authorities they cite in support. For Sonny, Mr Ainuu argues that ten months is an appropriate starting point, and reflects your culpability and the extent of loss caused by your offending. He further submits that whatever term remains after deductions should be suspended. I consider all those matters as well as matters raised by prosecution. I consider in particular the prevalence of cases of young men engaging drinking sessions and breaking into homes and stealing from members of the public. I consider also the danger these types of offending present to innocent members of the public. A custodial sentence is the appropriate sentence.
9. For Felise, the more culpable of you, I adopt three years as starting point on the charges of burglary. I make the following deductions - three months for the recovery of some of the stolen items; six months for your personal circumstances including your first offender status; and nine months for your age. The remainder after those deductions is eighteen months. I make a final deduction of six months for your guilty pleas. The end sentence is twelve months.
10. For Sonny, the less culpable of you, I adopt two years on the charges of burglary. I deduct three months for items recovered; six months for your personal circumstances including your young children; and nine months for your young age. The remainder is six months. I make a final deduction of two months for your guilty pleas to the charges. The end sentence is four months.

Result

11. Felise, on each of the three counts of burglary, you are convicted and sentenced to 12 months’ imprisonment. On each of the three counts of theft, you are convicted and sentenced to six months’ imprisonment. On the one count of possession of narcotics, you are convicted and sentenced to three months’ imprisonment. All sentences will be served concurrently less time you have spent in custody.
12. For Sonny, on each of the three counts of burglary, you are convicted and sentenced to four months’ imprisonment. On each of the three counts of theft, you are convicted and sentenced to three months’ imprisonment. All sentences will be served concurrently.

JUSTICE ROMA