Police v Maka [2023] WSSC 78 (24 October 2023)

IN THE SUPREME COURT OF SAMOA
Police v Maka [2023] WSSC 78 (24 October 2023)

Case name:	Police v Maka
Citation:	[2023] WSSC 78
Decision date:	24 October 2023
Parties:	POLICE (Informant) v MOKE MAKA, male of Faleula and Salesatele Falealili
Hearing date(s):
File number(s):	S1706 Charge 1, 2, S1706 Charge 2, S1789 Charge 1, 5, 6, 7, 8, 9, 10, 11, 12 & 13 per Charging Document dated 7/8/2023.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On the 5 charges of burglary, you are convicted and sentenced to 4 years imprisonment on each charge; On the 5 charges of theft, you are convicted and sentenced to 2 years imprisonment on each charge; On the 3 charges of intentional damage, you are convicted and sentenced to 2 years imprisonment on each charge; All sentences will be served concurrently. The record shows that you have been in custody since the 25th June 2023 pending the consolidation and determination of all charges against you. That period is to be deducted from the term of 4 years.
Representation:	J. Pickering for the Prosecution Defendant in Person
Catchwords:	Burglary – theft – intentional damage
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 161; 165(b); 174; 184.
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

MOKE MAKA male of Faleula and Salesatele Falealili

Defendant

Counsel: J. Pickering for the Prosecution

Defendant in person

Sentence: 24 October 2023

SENTENCE

Charges

1. You are a 32 year old single male of Faleula now appearing for sentence on 13 charges. There are 5 charges of burglary, the maximum penalty for each charge is 10 years imprisonment. There are 5 accompanying charges of theft. Given the value of the stolen items, the maximum penalty for each charge is 7 years imprisonment. There are a further 3 charges of intentional damage. The maximum penalty for each charge is 7 years imprisonment. The charges arise out of 5 separate incidents.
2. At first there were 3 charges - burglary, theft and intentional damage to which you pleaded guilty and were referred to ADC for screening. During that time, prosecution filed additional charges of burglary and theft. The charges were consolidated and you pleaded guilty to all 13 charges on the 8^th August 2023.

Offending

3. The first incident occurred on the 13^th May 2023 around 12am at Lotopa. The victim was a 25 year old male who runs the well known Maryion Samoa shop and bakery. The summary says that you damaged the mesh wire of the complainant’s shop to gain access inside. You stole $500.00 in cash and packets of Pall Mall cigarettes. The total value of the stolen items was $1,090.00 and damage to the mesh wire was worth $150.00. Upon the discovery of the break in and theft, the security video footage was viewed and you were easily identified as responsible because you had been working at the shop at the time. The items stolen could not be recovered.
4. The second incident occurred 9 days later on the 22^nd May 2023 at Vaitele uta. The victim was a 42 year old married male of Vaitele fou. Around 12pm you went onto the complainant’s property without permission, removed a louver from the house to gain access. You stole from inside alcohol, jewellery, 8 boxes of tinned fish, 2 boxes of corned beef, the total value of stolen items was $555.52. The incident was reported to police. The items could not be recovered.
5. A month later on the 23^rd June 2023, the third incident occurred at Vaitele fou at 9am. The victim was a 58 year old female married with 4 children. You broke the victim’s gate and gained access onto the property. You damaged the back door lock and entered the house. You stole a Ruio 4G cellphone and charger and a gym sports bag. When the victim and her daughter returned, they noticed that items inside the house had been misplaced and the screen wire was torn. The total value of the stolen items was $244.00, and damaged properties $295.00. The incident was reported to police and no items were recovered.
6. The fourth incident occurred an hour later on the same day also at Vaitele fou. The victim was a 56 year old teacher married with 4 children. You damaged the chain link fence to enter the property, removed four louvers of the house to enter, you then stole 3 boxes of tinned fish, one box of corned beef, one box of canned tuna, one phone, an acer device drive, a modem and a wallet. The total value of all items was $4,049.00. The damage to property was valued at $220.00. The break in was discovered by the victim on her return from work and reported to police. Some items were recovered by police.
7. The fifth incident occurred the same morning also at Vaitele. The victim was a 48 year old female who works for the Ministry for Revenue. She and her family were away in Savaii for a family matter. You broke into their house and stole a cellphone, jewellery and an umbrella. The break in was discovered by the girlfriend of the victim’s son who was looking after the house in the victim and her family’s absence. She reported the incident to police. The total value of stolen items was $205.00. On the following day the 24^th June police were able to locate and apprehend you for questioning at the main Apia police post.

Aggravating Factors

8. The aggravating features of your offending are:
   • (i) they involved home invasion;
   • (ii) they were multiple offending involving multiple victims over a short period of 2 months, and there was a real likelihood that you would have continued breaking into homes and stealing had you not been caught;
   • (iii) there was an element of planning and premeditation;
   • (iv) the significant value of stolen items being $6,500.00 and worth of damaged properties being $735.00. I also consider the impact on the victims. Of the 5 victims involved, 4 VIRs have been received by the Court and they confirm that only some items were recovered. They also confirm that no apology had been rendered by you or on your behalf;
   • (v) the prevalence of the offending.
9. Personal to you as offender, I consider your convictions for similar offending in 2016 and 2019 for which you were handed sentences of imprisonment.

Mitigating Factors

10. I consider your guilty pleas entered when the charges were finalised by prosecution and your personal circumstances referred to in the pre-sentence report.

Discussion

11. There continues to be an increase in offending involving home invasion and stealing from members of the community. Apart from the aggravating features I have referred to, the risk that these types of offending present to the safety and security of the victims and general public is an important consideration. In over a short period of 2 months, you broke into 5 homes and stole numerous properties with a significant total value of over $6,000, also causing damage to some of the homes.
12. Clearly the imprisonment sentences handed to you by the Court in 2016 and 2019 for similar offending have done nothing to deter you from offending. In fact, from the trend of your present offending, you would have continued had you not been caught by police.
13. The sentence must hold you accountable for the harm caused to the victims and community, denounce your conduct, and deter you and others from committing the same offending. Prosecution recommend a 4 years starting point. I have reviewed the authorities cited in support and other sentencing decisions of the Court.
14. I consider the totality of the offending and adopt 4 ½ years as the appropriate starting point on the burglary charges. I make an uplift of 12 months for your previous similar convictions. From 5 ½ years I deduct 4 months for the items recovered by police, leaving 5 years and 2 months. I make a final deduction of 14 months for your pleas of guilty to all charges. The end sentence is 4 years.

Result

15. For the above reasons I sentence you as follows:
    • (a) On the 5 charges of burglary, you are convicted and sentenced to 4 years imprisonment on each charge;
    • (b) On the 5 charges of theft, you are convicted and sentenced to 2 years imprisonment on each charge;
    • (c) On the 3 charges of intentional damage, you are convicted and sentenced to 2 years imprisonment on each charge;
    • (d) All sentences will be served concurrently. The record shows that you have been in custody since the 25^th June 2023 pending the consolidation and determination of all charges against you. That period is to be deducted from the term of 4 years.

JUSTICE ROMA