Police v Maiava [2023] WSSC 71 (19 October 2023)

IN THE SUPREME COURT OF SAMOA
Police v Maiava [2023] WSSC 71 (19 October 2023)

Case name:	Police v Maiava
Citation:	[2023] WSSC 71
Decision date:	19 October 2023
Parties:	POLICE (Informant) v LENE LAUVAO OLENI MAIAVA a.k.a LENE MAIAVA, male of Nuu-Fou, Tafaigata, Tanumapua, Siuniu Falealili and Iva Savaii
Hearing date(s):
File number(s):	S886/2023; S938/2021
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On each of the 3 charges of burglary, you are convicted and sentenced to 18 months imprisonment. On the theft charge committed on the 5th April 2021, you are convicted and sentenced to 2 months imprisonment. On the two theft charges committed on the 5th May 2023 and 5th August 2023, you are convicted and sentenced to 9 months imprisonment on each charge. All sentences will be concurrently served which means that you will serve 18 months imprisonment. The time that you have spent in custody since the 22nd August 2023 when you were taken in and charged for your last offence will be deducted.
Representation:	T. Fesili for the Prosecution Defendant in Person
Catchwords:	Burglary and theft.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 161(a); 165(e).
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

LENE LAUVAO OLENI MAIAVA a.k.a. LENE MAIAVA male of Nuufou, Tafaigata, Tanumapua, Siuniu Falealili and Iva Savaii.

Defendant

Counsel: T. Fesili for the Prosecution

Defendant in person

Sentence: 19 October 2023

SENTENCE

1. You appear this afternoon for sentence on 3 charges of burglary and 3 of theft. The maximum penalty for burglary is 10 years imprisonment. For one of the theft charges, the maximum penalty is 2 years imprisonment. And for the 2 remaining theft charges, the maximum penalty is 7 years imprisonment. The charges arise out of three separate incidents which occurred in 2021 and this year 2023. They had been called separately in court but this afternoon, you are being sentenced together on all charges.
2. The first incident occurred on the 25th April 2021. At Leauvaa uta between 10 and 11am whilst the complainant and her family were at church, you went onto their property with a co accused Pesamino Patolo Ah Key. You broke open the back door which was securely locked, entered the house and stole a bluetooth speaker and charger, a Samsung touch screen mobile phone, a bag and safety boots. The total value of the items was $549.00. Upon return from church, the complainant and her family discovered the back door was open and that the items were missing. They saw you and your co accused walk past and recognised the bag that you were carrying. They approached you and you returned the items.
3. You pleaded guilty to those charges on the 17th of April 2021 when they were first mentioned and you were then referred to ADC screening. You failed to appear in that court on the 2nd June 2021 and was issued a warrant of arrest which remained outstanding until you were apprehended and brought in on new charges.
4. The new charges arose out of a second incident on the 5th July 2023 at Nuu fou. With another co accused named Lui Patolo Ah Key, you approached the complainant’s house which was securely locked but left unattended. From the summary you used a ladder and climbed the second floor, removed louvers and gained entrance without permission. From inside you then opened the door for your co accused. You dispute that part of the summary saying that it was not you but your co accused who broke into the house and opened the door for you. Whoever broke into the house whilst the other remained outside, you do not dispute that eventually the both of you ended up inside the house from where you stole an electric fan, a bottle of champagne and a fine mat. The total value of which items is $3,135.00.
5. The record shows that you and your co accused first appeared on these second charges on the 17th July 2023. You pleaded guilty to both burglary and theft and were again referred to ADC; and like your previous matter, you failed to appear in the ADC on the 7th August 2023 and a second warrant of arrest was issued for your non-appearance on the 8th August. Subsequently you were denied entry to ADC programs because you reoffended on a third separate incident, and because of your history of non-appearances and outstanding warrants.
6. The third incident occurred on the 5th August 2023 at Vaitele fou. Between 7am and 4pm with another co accused who has denied the charges, you went onto the compound of ‘Le Iunivesite ole Amosa o Savavau’. You proceeded to a building that houses two classrooms, you used a rock to smash the lock to the first room and entered without permission. You stole a weedeater, an electric guitar, a gemini speaker and an extension cord. The total value of the items is $4,290.54. You sold the speaker for $70, the weedeater for $50 and gifted the extension cord to a passer-by. You hid the guitar at the volleyball court where it was later recovered by police. This last break in was reported to police and you were apprehended on the 21st August 2023. You pleaded guilty on the 4th September 2023 when you appeared on this third incident.
7. From the pre-sentence report you admit all offending and explain that the last two offences were alcohol related.
8. I consider as aggravating features of your offending:
   • (i) that these were multiple offending;
   • (ii) that the subsequent offences occurred whilst you were on outstanding warrants of arrest for non-appearance on similar previous offending – clearly the fact that you had appeared in court for similar matters did not deter you from continuing to offend;
   • (iii) that there was an element of premeditation;
   • (iv) that the offending involved home invasion – it caused damage to and loss of properties. The consequent fear to the complainants for their safety and security must also be taken into account;
   • (v) that the total value of items being $7,974.54 is a significant sum;
   • (vi) the prevalence of burglary and theft offending despite deterrent sentences imposed by the court;
9. Personal to you as offender I consider that whilst you have no previous convictions, you have continued to reoffend on two separate occasions after having pleaded guilty to a first incident and failing to appear in court for the determination of those initial charges. It shows a person who has no regard for the impact of his actions on the complainants and community, and no respect for the law and the Court.
10. In mitigation I consider:
    • (i) your guilty pleas to all charges entered at the earliest opportunity when respectively first called in court;
    • (ii) that some items were recovered; and
    • (iii) your personal circumstances - From the material you are 26 years of age and the second of eight children. Your formal education ended at Year 11 level at Pesega College. Since leaving school you have helped your family at its market stall selling vegetables and fruits. I have also read the testimonials by your mother Punipuao, your church leader Bishop Sio Silva and the mayor of Nuu fou Sala Siaosi Lutu. They speak of your previous good character and seek leniency in sentencing. Your mother in particular pleads that you be given the opportunity to attend ADC programmes. That opportunity was available to you and wasted by your failure to appear in court and continuing to reoffend.
11. There are far too many cases of youths engaging in drinking and ending up breaking into private homes and stealing from members of the public. The inherent risk of such offending on the security and safety of members of the public and impact on their properties is an important consideration. I consider the gravity of your offending; and in particular that you continued to reoffend after having pleaded guilty to similar offences and subsequently failing to appear in court. A deterrent sentence of imprisonment is the appropriate penalty. You had the opportunity to avoid imprisonment through the ADC, an opportunity you took lightly and failed to use.
12. Prosecution recommend a start point of 3 years imprisonment. I consider each of the authorities cited in their memorandum in terms of the number of incidents of offending and the value of items involved. I accept as appropriate prosecution’s recommendation of 3 years as starting point on the burglary charges. I make the following deductions - For the items recovered, 3 months. For your personal circumstances and first offender status, 6 months - leaving a term of 2 years and 3 months or 27 months. I make a final deduction of 9 months for your guilty pleas. The end sentence on the burglary charges is 18 months.
13. On each of the 3 charges of burglary, you are convicted and sentenced to 18 months imprisonment. On the theft charge committed on the 5th April 2021, you are convicted and sentenced to 2 months imprisonment. On the two theft charges committed on the 5th May 2023 and 5th August 2023, you are convicted and sentenced to 9 months imprisonment on each charge.
14. All sentences will be concurrently served which means that you will serve 18 months imprisonment. The time that you have spent in custody since the 22nd August 2023 when you were taken in and charged for your last offence will be deducted.

JUSTICE ROMA