Police v Ah Lam [2026] WSSC 8 (12 March 2026)

IN THE SUPREME COURT OF SAMOA
Police v Ah Lam [2026] WSSC 8 (12 March 2026)

Case name:	Police v Ah Lam
Citation:	[2026] WSSC 8
Decision date:	12 March 2026
Parties:	POLICE (Informant) v ALLEN AH LAM aka ALLEN CHRISTIAN LEASI SEKO male of Lotopu’e and Falelauniu Tai (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Loau Donald A. Kerslake
On appeal from:
Order:	The application for a discharge without conviction is granted upon payment of prosecution costs of ST$500.00 and court costs of ST$500.00 which shall be paid within 7 days or before close of business 3pm Thursday 19 March 2026. In default a conviction will be recorded. .
Representation:	Ms. F. Sinei-Tiafau & Ms. Y. Tuia for Prosecution Mr. F. Lagaaia for the Accused
Catchwords:	Burglary – theft – guilty plea – Discharge without conviction.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 161; 165(c); 174(1)(a); Sentencing Act 2016, ss. 69; 70; Sentencing Act 2002 (NZ), s. 107
Cases cited:	Attorney General v Ropati [2019] WSCA 2 (15 April 2019) Chang v Attorney General [2018] WSCA 3 Police v Faaleleiga [2024] WSSC 103 (7 October 2024) Police v Papalii [2011] WSSC 132 Police v Ponifasio [2022] WSSC 2 (9 March 2022) Police v Seumanutafa [2020] WSSC 52) Police v Sula Siaosi aka Joe Siaosi (Unreported) 02/08/2024 Police v Ulisone [2024] WSSC 32 R v Hughes [2008] NZCA 546; 3 NZLR 222
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

ALLEN AH LAM aka ALLEN CHRISTIAN LEASI SEKO male of Lotopu’e and Falelauniu Tai

Accused

Counsels: Ms. F. Sinei- Tiafau and Ms. Y. Tuia for the Prosecution
Mr. F. Lagaaia for the Accused.

Sentence: 12 March 2026

SENTENCE

The Charges

1. You appear for sentence on one charge of burglary pursuant to section 174(1)(a) of the Crimes Act 2013 which carries a 10 year maximum term of imprisonment and one charge of theft pursuant to section 161 and 165(c) of the Crimes Act 2013 which carries a 2 year maximum imprisonment term.

The Offending

2. According to the prosecution Summary of Facts dated 19 November 2025 which you have accepted, the incident of burglary and theft for which you appear for sentence occurred on the evening of 27 June 2025 at around 7pm where you unlawfully entered the complainant’s house at Falelauniu. The complainant was at his store while his children were asleep in the house. Once you were inside the house you stole a television valued at ST$999.00 from the sitting room.
3. When the complainant closed his store and arrived home at around 11pm, he discovered that someone had broken into his house and stolen the television. He made inquiries with the neighbours which led to your name being mentioned. The complainant approached you and you admitted to taking the television.
4. You were charged and entered guilty to the two information at the first mentions of your matter on 4 August 2025.

The Background of the Accused

5. You are a 20 year old male of Lotopu’e and Falelauniu Tai. According to your pre-sentence report you reside at Falelauniu with your family. Your defacto partner and six month old child also lives with you. You are employed as a barber at Rudy’s Barber Shop at Lotopa to support your family. You admitted in the pre-sentence report that you had been drinking alcohol when you offended.

The Victim

6. The victim and complainant of your offending is Fogapoa Samoa. In his victim impact report he expressed displeasure towards you as he knows you. He was especially livid with your actions given his young daughters were in the house when you entered unlawfully and took the television which was mounted on the wall. However, since you formally approached him and properly apologised, he has now forgiven you. In his last communication to the Court, he says that he has seen a change in you, especially now that you are a father. He supports your application before the Court and requests leniency from Court on your behalf.

Aggravating Features of the Offending

7. The following are the aggravating features of your offending:
   • (i) The high prevalence of burglary and theft in the community;
   • (ii) Premeditation. I accept the submission by prosecution that your actions demonstrated a level of planning;
   • (iii) Total value of the television which you took – ST$999.00;
   • (iv) There were young children in the house when you committed the offence; and
   • (v) The involvement of alcohol in your offending.
8. The only mitigating feature in respect of your offending is the recovery and return of the television by you when you were approached by the complainant.

Aggravating Features in respect of the Offender

9. There are no aggravating factors for you personally as you are a first offender.

Mitigating Factors in respect of the Offender

10. I accept the mitigating factors submitted by your counsel. The first mitigating factor I take into account is your previous good behaviour given that you are a first offender. In support of this, you have provided several letters which speak towards your personality as well as your upbringing. Letters have been provided by your pastor, your employer, the Sa’o of your family as well as your adopted father in New Zealand. Your partner, older sister and father have also provided letters to support you and to ask leniency from the Court. All the letters point to you being a responsible and reliable person. Your father and sister were particularly surprised at your offending and say that this was out of character and a lapse of good judgment. Your father expressed his disappointment as he says he raised you to be a man of integrity. Your partner says that you are the backbone of your young family and work tirelessly to support her and your young child. She has also seen how this matter has taken a toll on you and attest that you have learnt your lesson.
11. The second mitigating factor is your young age. You are only 20 years old and potentially have a long and prosperous future ahead of you if you stay on the right path.
12. Thirdly, you have attended the Salvation Army Rehabilitation programme and completed the 7 week course successfully. In fact, the report states that you attended an additional three sessions voluntarily. The report suggests that you are aware of the effects of alcohol and now have your priorities in the correct order, choosing to focus on supporting your young family and staying away from consuming alcohol.
13. Fourthly, I accept that there has been reconciliation and you have apologised properly to the complainant as previously mentioned. The complainant attests to this in his last correspondence to the Court and says that your apology was genuine and he has since seen a change in you. He now supports your application for a discharge without conviction. I have also read your letter to the Court as well as your affidavit in support of your application where you also apologise and say that you will be committed to changing your ways so that you do not reoffend.
14. Finally, your early guilty plea at the first reasonable opportunity has saved the Court and prosecution time and costs which would have gone towards having to call witnesses and hear their evidence.

Application for a Discharge without Conviction

15. Your counsel has filed an application to discharge you without conviction. An affidavit with supporting documents has been filed in support. Prosecution in their reply opposes your application and have recommended a conviction with a starting point of 12 months’ imprisonment with an end sentence of 16 months’ supervision and 80 hours’ community work.
16. Section 69 of the Sentencing Act 2016 confers jurisdiction on the court to discharge an offender without conviction. Section 70 provides guidance. It provides;
    • “The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”
17. Section 70 uses the exact wording of section 107 of New Zealand’s Sentencing Act 2002. Because of this, the rulings of New Zealand’s higher courts on section 107 are highly relevant and should be taken seriously when we look at our own section 70.
    
18. In the case of R v Hughes [2008] NZCA 546; 3 NZLR 222 at 11, the New Zealand Court of Appeal explained that deciding whether the test in section 107 is met is not about a judge’s personal discretion. Instead, it’s a factual question that requires careful judicial evaluation.^[1]
19. Our Court of Appeal in Attorney General v Ropati [2019] WSCA 2 (15 April 2019) at 55 sets out a four step approach to a section 70 assessment.^[2]
    • (i) Assess the gravity of the offence, a task which includes having regard to aggravating and mitigating factors;
    • (ii) Identify the direct and indirect consequences of conviction;
    • (iii) Decide whether the consequences would be out of all proportion to the gravity of the offence, and, if so,
    • (iv) Exercise a discretion as to whether a discharge without conviction should be granted.

Gravity of the Offence

20. Burglary and theft in the community is on the rise. The courts have often voiced concerns over the prevalence of this type of offending.^[3] I have outlined the aggravating and mitigating factors above. Prosecution submit that the gravity of your offending falls within the mid-range of seriousness for burglary and theft offences. I note that no damage or injury was suffered to property or any person. I agree that the mitigating factors in this matter have significantly reduced your culpability. Moreover, I place significant weight on the words of the complainant and his support of your matter. Upon assessment of the aggravating and mitigating factors as well as the circumstances of your offending, I assess your culpability as being at the lower end of the scale for seriousness.

Direct and Indirect Consequences of Conviction

21. You have attached to your affidavit the orders of adoption which confirms your adoption by your uncle in New Zealand. Attached also is a letter from Immigration New Zealand approving a family child dependent resident visa and which requires you to enter New Zealand before 18 September 2026 or the visa will no longer be valid. One of the conditions of the visa is to inform Immigration New Zealand if there is any change in your circumstances that may affect a decision to grant entry under your visa.
22. I agree with the submission by prosecution that despite the outcome by the Court, this is a matter which will need to be reported to New Zealand Immigration as there has been a change in your circumstances. As stated in Attorney General v Ropati [2019] WSCA 2 at 65:
    • “It is not the function of the Courts to conceal offending from proper authorities by declining to enter convictions where they would otherwise be appropriate.”
23. I also agree with your counsel that there is a real likelihood that your visa would be invalidated if a conviction is recorded on your record as opposed to a discharge without conviction. But I do heed the warning in Ropati where the Honourable Justices say:
    • “Nothing requires the courts to try to impose their perception of what the right immigration consequences ought to be. That is generally best left to the immigration authorities themselves to decide. That said, we would not go so far as to say that adverse travel consequences could never be relevant in a finely balanced case.[4]
24. The second reason concerns the potential loss of employment. In a letter dated 9 January 2026, your adopted father guarantees you a position in his company if you are permitted to travel to New Zealand. He also notes that a conviction could hinder your ability to secure alternative work. A rejected visa would mean a significant loss of opportunity and income, limiting your ability to support and improve your young family’s life. Even if entry is granted, a conviction would restrict your prospects beyond your father’s company.

Proportionality assessment

25. Would a conviction be disproportionate? Having carefully considered the aggravating and mitigating factors, as well as the circumstances of the offence, I find this matter to be finely balanced. However, the weight of the evidence tips in favour of concluding that a conviction would be disproportionate to the gravity of the offence, particularly given your young age. There is a real likelihood that a conviction would significantly impair your prospects for a brighter future, not only personally but also in your ability to provide for and support your young family. Such an outcome would indirectly affect the upbringing of your child.

Discretion?

26. After evaluating all the relevant factors as stated above, I accept that you have rehabilitated yourself and have learnt a valuable lesson that such behaviour is frowned upon by the law. I have placed significant weight on the complainant’s letter to the court to determine your remorsefulness so you should be thankful to him for his compassion and forgiveness. Accordingly, I will exercise my discretion to discharge you without conviction.

Result

27. The application for a discharge without conviction is granted upon payment of prosecution costs of ST$500.00 and court costs of ST$500.00 which shall be paid within 7 days or before close of business 3pm Thursday 19 March 2026. In default a conviction will be recorded.

JUSTICE KERSLAKE

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^[1] Police v Ponifasio [2022] WSSC 2 (9 March 2022), para 18.
^[2] Also see Chang v Attorney General [2018] WSCA 3 and Police v Papalii [2011] WSSC 132. Applied in Police v Ponifasio (supra).
^[3] Police v Faaleleiga [2024] WSSC 103 (7 October 2024) per Clarke J, Police v Sula Siaosi aka Joe Siaosi (Unreported) 02/08/2024 per Nelson J; Police v Ulisone [2024] WSSC 32 per Clarke J; Police v Seumanutafa [2020] WSSC 52) per Nelson J.
^[4] Attorney General v Ropati [2019] WSCA 2 at 66