Police v Leapai [2024] WSSC 4 (1 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v Leapai & Ors [2024] WSSC 4 (01 March 2024)

Case name:	Police v Leapai & Ors
Citation:	[2024] WSSC 4
Decision date:	01 March 2024
Parties:	POLICE (Informant) v AMOSA LEAPAI, KANELA JUNIOR TOMASI KANELA & FALETOLU TANIELU LETUFUGA (Defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:
Representation:	L. Matauaina for the Informant Defendants appear in Person
Catchwords:	Jointly charged – aggravated burglary – theft – burglary – custodial sentences.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 33; 174; 175.
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:

AMOSA LEAPAI, KANELA JUNIOR TOMASI KANELA & FALETOLU TANIELU LETUFUGA

Defendants

Counsels: L. Matauaina for the Informant
Defendants appear in Person

Date: 1 March 2024

S E N T E N C E

1. The three defendants appear for sentence jointly charged^[1] with aggravated burglary and theft committed on 23 November 2023 at Vaitele-fou.
2. The defendant, Amosa Leapai is also to be sentenced for burglary and theft committed on 26 November 2023 at Mulivai, Apia.
3. Under the Crimes Act 2013, the charge of aggravated burglary pursuant to section 175 carries a maximum penalty of 14 years’ imprisonment; burglary pursuant to section 174 carries a maximum 10 years’ imprisonment; while the theft charge according to the value of the properties stolen is maximum 7 years’ imprisonment.
4. I will deal with the sets of offending separately.

23 November 2023

5. The summary of facts by Prosecution was read out and agreed to by the three defendants. Accordingly, the defendants entered the house of the victim while the victim and his family were asleep at night. The defendant Amosa Leapai used a kitchen knife to open the door in order for him and the defendant Kanela to gain access into the house while the defendant, Faletolu stood outside to keep a lookout. The defendants, Amosa and Kanela, removed the following properties to the total value of $16,854.95. Included in the properties stolen was cash and very expensive belongings such as a laptop, mobile phones and Bluetooth speaker to name a few. The Police only recovered properties to the value of $6,300.
6. The defendant, Amosa Leapai, is 24 years’ old from the village of Malie, unemployed and is a recidivist offender with previous convictions of similar offending. According to the Pre-Sentence Report (PSR) Amosa was last sentenced to 16 months’ imprisonment on 14 July 2022 for similar offending to which he completed serving time on 10 October 2023. This current offence was committed a month later. The PSR states that there are no significant changes in relation to Amosa’s personal circumstances. They tried contacting his mother but to no avail. With his history of convictions there is no doubt that Amosa was the ring leader in this offending. His continuous disregard of the law shows a lack of remorse or any desire to change. He is a risk to society.
7. The defendant, Kanela Junior Tomasi Kanela is 21 years’ old also from the village of Malie and was employed at the time of the offending. According to the PSR, Kanela said that he and the other two defendants had a drinking session in front of a local store at Vaitele-fou. He was intoxicated and fell asleep in front of the shop. He was awoken up by Faletolu who handed a 3lb corned beef to open up for them to eat, which he did. Faletolu also gave him a backpack and a Bluetooth speaker to carry. They got in a taxi and went and sold a fine mat to a woman at the Savalalo market. He said that the backpack and Bluetooth speaker he carried was taken by Faletolu and Amosa. According to police records, Kanela has a previous conviction of similar offending in 2020 to which he was sentenced to 18 months’ supervision. As a first offender and also a young offender just 18 years of age at the time, he was given a chance and handed a non-custodial sentence yet he has re-offended again of similar offence. What he said in PSR, in effect is, he did not take part in the offending, contrary to the summary of facts that he did not object to when read out and was asked if there is any part of the summary that he objects to.
8. The defendant, Faletolu Tanielu Letufuga, is 23 years’ old, unemployed also from the village of Malie. According to the summary of facts, Faletolu stood outside as a lookout. Faletolu is a first offender.
9. The complainant is a 51 year old male of Vaitele-fou who shows great disappointment with the properties of significant value stolen, the concern for his safety and that of his family for their home was broken into while they were at home asleep.
10. Prosecution recommended a starting point of 3-4 years referring to sentencing authorities of similar circumstances and identifying the following as aggravating features of the offending:
    • (i) Significant amount stolen;
    • (ii) Home invasion and especially at the time it was carried out when the family were asleep;
    • (iii) Vulnerability of the victim and his family – they were asleep when the defendants entered and stole from their home. Their lives were at risk.
    • (iv) The offending was pre-meditated;
    • (v) Value of properties stolen loss and significant loss of property to the victim;
    • (vi) The previous convictions of similar offending, is taken as an aggravating factor personal to the defendants.
11. The Prosecution recommends a starting point of four years’ imprisonment for both defendants.
12. The mitigating factors for the defendants are:
    • (i) Amosa Leapai – I find his early guilty plea to be the only mitigating factor in his favour.
    • (ii) Kanela Junior Kanela – His early guilty is the only mitigating factor. I do not accept what he said in his PSR of him falling asleep implying that he did not take part in the offending.
    • (iii) Faletolu Letufuga – His early guilty and first offender status are mitigating factors in his favour. I will also consider his role in the offending in his favour.
13. I agree with the starting point of 3 ½ years or 42 months and sentence each defendant accordingly:
    • (i) Amosa Leapai – The only deduction is 25% discount of 12 months for his early guilty plea. That leaves 30 months or 2 years and 6 months. I will uplift this with 3 months for his continuous criminal behaviour. Amosa is convicted and sentenced as follows to be served concurrently less any time in custody:
      • Aggravated Burglary – 2 years and 9 months’ imprisonment;
      • Theft – 2 years’ imprisonment.
    • (ii) Kanela Tomasi Kanela – I also give 25% discount which is 12 months. The end sentence is 2 years and 6 months. Kanela is convicted and sentenced as follows to be served concurrently less any time in custody:
      • Aggravated burglary – 2 years and 6 months’ imprisonment;
      • Theft – 2 years’ imprisonment
    • (iii) Faletolu Letufuga – I deduct 12 months for first offending and a further 6 months for your role in the offending which I considered to be less active, leaving 24 months. I give 25% discount of 6 months for your early guilty plea. The end sentence is 18 months. Faletolu is convicted and sentenced as follows to be served concurrently less any time in custody:
      • Aggravated Robbery – 18 months’ imprisonment;
      • Theft – 1 year imprisonment.

26 November 2023

14. Amosa Leapai is also to be sentenced on charges of burglary and theft at Mulivai, Apia. This offending was committed by Amosa three (3) days after the above offending.
15. According to the summary of facts, the offending was also committed at night while the victim was asleep. The victim is a female who lives upstairs above her medical clinic. The defendant accordingly entered the clinic and then made his way inside the victim’s apartment. The defendant removed properties with a total value of $8,428.79.
16. The same aggravating factors noted in the above offending are also present in this offending. The only mitigating factor in this offending is the defendant’s early guilty plea. A starting point of 3 years is appropriate and deduct 25% of 9 months for his early guilty plea. The end sentence is 27 months and uplift it with 3 months for his continuous recidivist behaviour.
17. Amosa Leapai for this set of offending is convicted and sentenced as follows:
    • Burglary – 30 months or 2 years and 6 months’ imprisonment
    • Theft – 18 months’ imprisonment.
18. This sentence is also concurrent but is to be served after the above sentence is served.

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, s33.