Police v VH [2024] WSSC 113 (17 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v Hicks [2024] WSSC 113 (17 September 2024)

Case name:	Police v VH
Citation:	[2024] WSSC 113
Decision date:	17 September 2024
Parties:	POLICE (Informant) v VH (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The Court convicts and sentences the young defendant as follows: Burglary: being the lead offence – 11 months’ imprisonment Theft: 6 months’ imprisonment Intentional damage: convicted and discharged. Willful trespass: convicted and discharged. The sentences are to be concurrent less any time in custody. The imprisonment sentence will supersede the non-custodial sentences imposed for Charges 1-4.
Representation:	L Matauaina for Prosecution V Afoa for the Defendant
Catchwords:	Multiple offences – burglary – theft – willful trespass – young offender -
Words and phrases:
Legislation cited:
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:

VH

Defendant

Counsels: L Matauaina for Prosecution
V Afoa for the Defendant

Date: 17 September 2024

S E N T E N C E

Charges

1. VH appears for sentence on a range of offences of similar nature including offences committed while he was a young offender at 16 years of age.
2. There was a misunderstanding with the Youth Court as to VH’s age when he was referred to the Youth Court on 6 November 2023. The Youth Court referred him back to the Supreme Court as he was no longer considered a young offender under the Young Offender’s Act.
3. There is a total of eight charges against VH as follows:
   • Charges 1 & 2: 5 January 2023

Burglary and theft of a dwelling house at Lotopa. Total amount of properties stolen at $1991.98 (one mobile phone).

• Charges 3 & 4: 2 September 2023

Burglary and theft of a dwelling house at Aleisa. Total amount of properties stolen at $474.00 (mainly food).

• Charges 5, 6 & 7: 29 May 2024

Burglary, theft and intentional damage of a dwelling house at Aleisa. The defendant gained entry into the house by tearing the screen wire. Total amount of properties stolen at $21,804.00 (Jewellery). The torn screen wire is valued at $100.

• Charge 8: 30 May 2024

The defendant wilfully trespassed on land in occupation of Walter Von Dinklage, the owner of the dwelling house in charges 5, 6 & 7.

4. The Prosecution on a totality approach for all eight (8) offences and recommends a custodial sentence with a starting point of four (4) years. The Counsel for the young offender advocates for a non-custodial sentence. I sentence this young defendant accordingly for the following reasons:

Charges 1-4

5. Charges 1 & 2 were committed while VH was 16 years’ old and is a young offender. The victim is his own aunty that he used to stay with.^[1] Charges 3 & 4 were committed when VH had turned 17 years’ old. The Court still considers him a young offender.
6. The principles of youth justice will apply. Such principles are that a custodial sentence is the last resort but that the young offender be given the opportunity to undergo rehabilitation programmes.
7. VH is noted to have entered an early guilty plea to Charges 1&2. He was ordered by the Youth Court to attend the Teen Challenge program which he successfully completed (see Report dated 3 September 2023). From the notes in his Youth Court file the sentencing of this young offender kept being adjourned in order for his mother to attend. The mother, it seems, never attended. The young offender on 2^nd September 2023 committed other offences (Charges 3 & 4) while he was awaiting sentencing for his offences committed on 5^th January 2023 which the Prosecution recommends for a non-custodial sentence of 12 months’ supervision.
8. The young offender had also pleaded guilty to Charges 3 & 4. There is no summary of facts filed for the offending of 2^nd September 2023 and no sentencing submissions filed by the Prosecution. It is noted that the Youth Court ordered the young offender to complete a 12 weeks program with a faifeau on 29^th April 2024. There is no report in the file as to whether the young offender complied. In any event, the Court will no longer drag this matter as it has been in the system for a while and this young offender keeps being bounced around by the Courts. The Court will sentence the young offender accordingly.
9. The early guilty pleas and young age attracts a non-custodial sentence pursuant to section 15 of the Young Offenders Act 2008 as follows:
   • Charges 1 & 2: No conviction to be entered but the young offender to undertake 40 hours’ community service to be completed within six (6) months with his faifeau.
   • Charges 3 & 4: Same as charges 1 & 2.

Charges 5 - 8

10. Charges 5-8 involves the same dwelling place and land. The defendant when committing those offences had turned 18 years old and under the Young Offenders Act, he is no longer a ‘young offender’. That may be so but the Court still considers him a young defendant.
11. The difference with this set of offending is the value of properties stolen is quite high. It is confirmed that the properties mainly of jewellery have been recovered and returned except for the $700 cash. According to the Summary of Facts, the young defendant was found the next day sleeping at the back porch of the victim’s house, thus the offence of wilful trespass.
12. I take note of the aggravating and mitigating factors referred to by counsels. I lean towards the fact that at 18 years of age the defendant is still very young. His guilty plea is an indication of taking responsibility for his behaviour and accepting that what he has done is wrong. Counsel for the young defendant correctly submitted that the defendant has no previous convictions despite re-offending while on bail. He was remanded in custody as a result of re-offending while on bail.
13. The Court would have imposed a combination of sentence would have been imposed given the young age of this defendant and the need for him to undergo or attend rehabilitation programmes. However, counsel for the young defendant (and confirmed by Probation) informed the Court that the stepfather and the mother will have nothing to do with the young defendant. The young defendant they (parents) say have no regard for his parents and is very disobedient (le usita’i) and troublesome youth. This young defendant has nowhere to go given that his family no longer want anything to do with him. Furthermore, the Court would have still imposed a combination of sentences if it could secure a place or family for the young defendant to live with but despite efforts by counsel to secure a place or family for the defendant to live with, she was unsuccessful. The Court has no option but to impose a full custodial sentence.
14. With charges 5-8 the Court takes a totality approach. Two years starting point for the lead offence of burglary which attracts a maximum penalty of 10 years’ imprisonment and makes the following deductions: six (6) months for his young age; three (3) months for successful completion of the Teen Challenge Programme he was ordered to undergo. The Court allows for a 25% discount for his early guilty plea amounting to four (4) months. This leaves 11 months.
15. The Court convicts and sentences the young defendant as follows:
    • Burglary: being the lead offence – 11 months’ imprisonment
    • Theft: 6 months’ imprisonment
    • Intentional damage: convicted and discharged.
    • Wilful trespass: convicted and discharged.
16. The sentences are to be concurrent less any time in custody.
17. The imprisonment sentence will supersede the non-custodial sentences imposed for Charges 1-4.
    

JUSTICE TUATAGALOA

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^[1] See Pre-Sentence Report dated 5 Sept 2023.