Police v Heather [2024] WSSC 46 (6 May 2024)

IN THE SUPREME COURT OF SAMOA
Police v Heather & Anor [2024] WSSC 46 (06 May 2024)

Case name:	Police v Heather & Anor
Citation:	[2024] WSSC 46
Decision date:	06 May 2024
Parties:	POLICE (Informant) v NEIL HEATHER AND JACK TIMOTHY HEATHER, both males of Tufuiopa (Defendants)
Hearing date(s):	10 & 11 October 2023.
File number(s):	Charges 1, 2 & 3 per charging document dated 29 June 2020.
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On all three charges, you are both convicted and sentenced to 16 months supervision. Further I order that the $4,000 reparation paid by you to the Ministry’s Civil Law Trust be paid to the complainants through counsel for prosecution within seven days.
Representation:	L. Sio for Prosecution K. Kruse for both defendants.
Catchwords:	Burglary, Theft, Intentional damage.
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

AND:

NEIL HEATHER & JACK TIMOTHY HEATHER, both males of Tufuiopa.

Defendants

Counsel: L. Sio for Prosecution

K. Kruse for both defendants

Sentence: 6 May 2024

SENTENCE

Charges

1. Following a defended hearing in October 2023 I found you guilty of three joint charges. My conclusions were handed down in December followed by reasons in January this year. The three joint charges are:
   • (i) Burglary which has a maximum penalty of 10 years imprisonment;
   • (ii) Theft which has a maximum penalty of 7 years imprisonment; and
   • (iii) Intentional Damage with a maximum penalty of 7 years imprisonment.
2. The property that was subject of the charges is a two storey building located on Heather estate at Tufuiopa, built and owned by the late Richard Heather, brother of Neil and uncle of Jack. The complainants were Richard’s wife and daughter.
3. On the 7^th March at sentencing, I ordered that you pay reparation of $4,000 to the complainants through Probation. Last Thursday 2^nd May when the matter was called, I received confirmation that sum has been paid in full, and adjourned sentence to this morning.

Offending

4. The court heard that on the 29^th April 2020, along with Penitila you approached the building, spoke to Faapale to whom its care was entrusted, you asked for the keys before proceeding to damage the lock to the entrance upstairs. You all then moved upstairs and began to remove the louvres, window frames, timber and the shower causing damage to the walls.
5. You then transported the removed items to the family home that you occupy at the back. Moelani, daughter of the late Richard Heather was informed by Faapale, she reported the incident to police. Police then turned up at Tufuiopa and on their plea, the items were returned and stored inside the building infront.
6. The defence you ran and I rejected at trial for reasons contained in my judgment was that the land belonged to your family. The building was owned by your brother, uncle of Jack, and you were more entitled to the building than Richard’s wife, and Moe and Faapale to whom she had granted access to the building.

Aggravating Factors

7. I consider the following aggravating features of the offending:
   • (i) premeditation – the offending was planned and carried out on instructions of Neil after unsuccessful attempts to obtain the keys to the building;

(ii) value of the damage and the items that were removed - from the evidence, the value was estimated to be over $10,000. Although no proper valuation was made, I accept that the value of the damage and properties removed is significant;
(iii) domestic relationship with the complainants - this is not the typical burglary, intentional damage and theft by offenders who break into strangers’ homes when unattended. This was by close relatives persistent in their claim to the building, and who only stopped when police turned up;
(iv) impact of the offending – the obvious one being that the building is no longer in the condition it was in prior to the offending.

8. As offender I consider Neil’s convictions for offences of similar nature - wilful trespass, attempted unlawful entry and trespass in 2014.

Mitigating Factors

9. In relation to the offending, I consider:
   • (i) in the case of Jack that he was merely following his father’s instructions;

(ii) that the items removed were returned to the building when police arrived.

10. I also consider your personal circumstances. From the presentence report and material before me – Neil is now 56 years of age. The medical reports by Dr. George Tuitama and Dr. Titi Lamese confirm that you suffer from hypertension, epilepsy, dementia and intellectual disability. Your wife is wheelchair bound and you have been responsible for looking after and transporting her for medical check ups.
11. For Jack - you are 24 years of age. You attended primary school followed by Loto Taumafai because of your mental disability. Dr. Tuitama confirms in a report that you have been diagnosed for epilepsy seizure disorder and intellectual disability. You are a first offender.
12. I also consider the references and testimonials provided through the probation service, from the village mayor Tuiletufuga Fritz Tuiavii and a family friend Leoo Alaese Papalii. I have also read the testimonial by Taulapapa Brender Heather Latu which provides a background to the Heather’s estate on which the building is located, and explains your claim for entitlement to the property. It will have no impact on the conclusion I had reached on your guilt. I consider however her plea for a non custodial sentence.
13. Lastly I consider reparation of $4,000 which you have paid pursuant to an Order of the Court.

Penalty

14. Simply from the maximum imprisonment terms imposed by law, the charges you appear for sentence on are serious charges. I have considered the submission by prosecution who seek a term of imprisonment, and your counsel who seeks a non custodial sentence. I must say that I had considered imposing a term of imprisonment for you Neil because of the level of your culpability.
15. However in the circumstances of your case, I consider significant your payment of reparation of $4,000, and justifies in my view a non custodial sentence. But that is not the only factor. I also consider your medical conditions confirmed by the 2 doctors, and the fact that your wheelchair bound wife, and mother of Jack need your support in her care.
16. For those reasons I find that a non custodial is the appropriate penalty.
17. On all three charges, you are both convicted and sentenced to 16 months supervision.
18. Further I order that the $4,000 reparation paid by you to the Ministry’s Civil Law Trust be paid to the complainants through counsel for prosecution within seven days.

JUSTICE ROMA