Police v JM [2015] WSYC 1 (18 June 2015)

YOUTH COURT OF SAMOA
Police v JM [2015] WSYC 1

Case name:	Police v JM
Citation:	[2015] WSYC 1
Decision date:	18 June 2015
Parties:	Police (informant) v JM (young person)
Hearing date(s):
File number(s):	D2707/15, D2708/15
Jurisdiction:	CRIMINAL
Place of delivery:	Youth Court of Samoa, Mulinuu
Judge(s):	Judge Mata Keli Tuatagaloa
On appeal from:
Order:
Representation:	Ms Brigitta Lo Tam-Faafiti for Informant Young Person Unrepresented
Catchwords:	burglary –theft –Young Offenders Programme – Samoa Victim Support Group
Words and phrases:	breached pre-sentence conditions
Legislation cited:	Young Offenders Act 2007
Cases cited:	P v A.V, unreported 16 November 2014, P v S.L, unreported 14 May 2015; P v Sione Mataio, Unreported 8 March 2015; P v Ajawas [Police v X [2007] WSSC 532013] WSSC 49; R v Churchward [2011] NZCA 531;
Summary of decision:

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

J.M of Lalovaea
Young Person

Counsels:
Ms Brigitta Lo Tam-Faafiti for Informant
Young Person Unrepresented

Date: 18^th June 2015

ORAL SENTENCE BY JUDGE TUATAGALOA

1. J.M, you appear before the Court having pleaded guilty to burglary and theft committed on 16 March 2015 and two burglaries and theft committed on or between 25^th April – 5^th May 2015.
2. The victims of these offences are two different people.
3. On 16 March 2015, you, two co-offenders (one of them is another young person named T.T) were said to have been hanging around at night and decided to go burgle a shop. From the SOF provided by the Police you and your co-offenders scouted or walked around the Vaimea area and decided upon the Princessa shop. You went and checked out the locks of this shop to see if it would be easy to break into the shop. You came back and told your co-offenders that the lock could be opened by a screwdriver. You and your co-offenders went and got a screwdriver from the adult co-offenders house, went back to the Princessa shop at around 3.00 am (in the morning) and broke into the shop.
4. The Summary of Facts say that you and the other young co-offender T.T used clothing to wrap around your heads and broke into the shop while the adult co-offender remained outside as a look-out. You and T.T removed items (mainly food and alcohol) to the value of $1,145.40.
5. You were remanded with T.T in custody for 2 – 3 weeks. Both of you were then remanded on bail. When you pleaded guilty you (and T.T) were ordered to attend the Young Offenders Programme with SVSG while awaiting sentencing.
6. Two weeks or so since you (J.M) were out on bail, you committed two burglaries and theft of a house belonging to a Vincent Ah Him at Lalovaea between 25^th April – 5^th May 2015. This time, you committed those offences on your own.
7. The first time you broke into this person’s home was during the day. A couple of days later (at night) you again broke into this person’s home and stole from it, properties to the value of $1,430.00.
8. J.M, when you committed the offences on 16 March 2015 you were to complete and comply to pre-sentence conditions under s.15(1)(b) of the Young Offenders Act 2007 placed upon you by the Court for offences of burglary and theft committed in October 2014.
9. You breached these conditions by re-offending and did not complete nor complied with the pre-sentence conditions. You were then re-sentenced under s.16 (1) (a) on 28 May 2015 and a conviction was recorded for the offences committed in October 2014. That means the Court in, sentencing you for these two further lots of offence, will not be treated as a first offender.
10. The Attorney General, on behalf of the Police, seeks a custodial sentence with a starting point of 6 months each for burglary and theft for the offences committed on 16 March 2015 and at least 6 months starting point for each burglary and theft committed on 28 May 2015. The starting point by the Attorney General in my view does not truly reflect the circumstances of the offending by this young offender. As I understand, the Attorney General seemed to base its starting point on cases sentenced by this Court of these sorts of offences. I acknowledged that there may have been a misunderstanding and that this Court has not previously truly applied the starting point (in the way that the Supreme Court has) in its sentences where it considers a custodial sentence. I will now do that with this sentencing decision.
11. The Youth Court always gives chances to young offenders who are first offenders and impose non-custodial sentence with special conditions. They are also given a stern warning should they breach pre-sentence conditions, if sentenced under s.15(1) or if re-offend the court will then consider a custodial sentence. This case is no different from other young offenders who have breached or re-offended. (P v A.V, unreported 16 November 2014, P v S.L, unreported 14 May 2015). The cases of P v A.V and P v S.L are similar cases because they both breached their pre-sentence conditions under s.15(1)(b), they re-offended with same offences while they were serving s.15(1).
12. To get a range of starting points one must look at the sentencing decisions by the Supreme Court. In P v Sione Mataio, Unreported 8 March 2015, Supreme Court, Justice E.M Aitken in fixing a starting point considered a number of decisions by the Supreme Court especially those given by the Chief Justice and made the observation that His Honour in most of his decisions for first time burglars usually impose non-custodial sentence. Furthermore, the Chief Justice in P v Ajawas [2013] WSSC 49 is said to have adopted the categories of burglary used by the New Zealand courts of daytime/night time burglary, commercial building/dwelling places amongst other factors. Justice Aitken also paid close attention to R v Churchward [2011] NZCA 531 where the New Zealand Court of Appeal identifies a number of factors which the Court should have regard to in assessing the culpability and the appropriate penalty for young offenders (see [76] – [92]). Clearly in these two cases, youth was a factor which the court had great regard to. In P v Sione Mataio defendant was 19 years old and in R v Churchward the defendant was 17 years old.
13. I am mindful of the need to rehabilitate young offenders and the principles of sentencing applied to young offenders but there is also a need for deterrence where there is not only serious offending but repeat offending particularly while on pre-sentence conditions and offending that has a significant impact on the owners. In my view, a custodial sentence is most appropriate.
14. What makes this young person’s offending very serious is firstly, he committed the second lot of offending while awaiting re-sentence for the first lot of offending and committed the third lot of offending while awaiting sentence for the second lot. Secondly, there was pre-meditation involved in both the second and third lot of offending. He together with two co-offenders (including T.T, another young offender) scouted the Vaimea area for a shop to break into. He (and T.T) broke in to the Princessa shop at 3.30am after having first looked at the locks saw that it could be opened by a screwdriver went and got a screwdriver then came back and broke in to the shop. With the third lot of offending on or between 25^th April – 5^th May 2015 the young person broke in to a dwelling house and then couple of days after, he again broke into the same house and stole from. The Court sees the second time as pre-meditation for the second time he broke in to the same house a couple of days later. Thirdly, there is clearly no remorse on his part.
15. For the second lot of offending, I fix the starting point at 13 months from the circumstances of the offending itself. I take in to account the commonalities above with the third lot of offending. In particular to the second offending, the summary of facts by the Police says or implies that the young offender was the main instigator, the value of the property stolen, the building burgled was a shop and the time of the burglary. I add 4 months for the aggravating factors personal to the young offender: not a first offender and while awaiting sentence on the second lot of offending, the Court ordered the young offender to attend pre-sentence programmes with Samoa Victim to which he only attended 2 sessions of 4 sessions. The only factors that would reduce sentence are his age and early plea. From 17 months I will deduct 1/3 for age and another 1/3 for early plea to bring it to 8 months imprisonment term. For theft I give a starting point of 10 months less 1/3 for age, less 1/3 for early plea and 2 weeks for the stolen property recovered and returned to the owner which brings it to 4 months & 2 weeks imprisonment. These sentences are to be served concurrent.
16. For the third lot of offending, his prior conviction is not taken in to account as that had already been taken in to account in the 2^nd lot of offending which is being sentenced together with the 3^rd lot of offending. In addition to the aggravating factors in para.14, the Court pays attention to the escalation in the offending, he committed the 3^rd lot on his own of a dwelling house so, the sanctity of one’s safety at home has been breached, and the value of property stolen. There is clearly no remorse on the young person’s part given that he was awaiting sentence for the second lot of offending but, that did not deter him from committing the 3^rd lot of offending. I fix the starting point for each burglary at 19 months add 3 months for personal aggravating factors, less 1/3 for age and another 1/3 for early plea which brings it to 10 months imprisonment for each burglary to be served concurrent. For theft I fix the starting point at 12 months less 1/3 for age another 1/3 for early plea and 2 weeks for items recovered which brings it to 5 months, 2 weeks. The sentence for theft is to be served concurrent with the sentence for burglary.
17. The Attorney General on behalf of the Prosecution asked the Court to consider the totality principle in sentencing this young offender. The Chief Justice in Police v X [2007] WSSC 53 on the totality principle referred to Thomas, Principles of Sentencing 2^nd ed (1979) pp.56 -57:

“ The effect of the totality principle is to require the sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.......When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong.’ That is, ‘When cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’

18. I have considered the totality principle and find it appropriate to apply to these offences by this young offender and the total sentence of 18 months imprisonment truly reflects the culpability of this young offender in the commission of these offences. Time in custody for the 3^rd lot of offences to be deducted from 18 months imprisonment.
    

JUDGE MATA KELI TUATAGALOA