THE SUPREME COURT OF SAMOA
Police v Su’a [2017] WSDC 6

Case name: 	Police v Su’a	
		
Citation: 	[2017] WSDC 6	
		
Decision date: 	05 May 2017	
		
Parties: 	POLICE (Prosecution) v SU’A NIUAPAI SU’A aka SU’A ENELIKO SU’A of Lotopa, Gagaifo Lefaga & Leulumoega but currently of Tafaigata Prison.
Defendant

Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The Supreme Court of Samoa Mulinuu	
		
Judge(s): 	Judge Alaltoa Rosella Viane Papalii	
		
On appeal from:		
		
Order:	-	Convicted and sentenced to serve 27 months imprisonment with time you spent in custody pending this sentence to be deducted from that term.

Representation: 	Constable Vaai for Prosecution
Accused in person

Catchwords: 	Obtained by Deception	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 section 172 & 173(a) – 
Sentencing Act 2016 section 7(1)(j), section 5, s 6 (a), (b) (e), - 
NZ Sentencing Act 2002. Section  9(1)(j)

Cases cited:	R v Rautahi CA78/2011 [2011] NZCA 335;  P v Lemalu [2015] WSSC 79; R v Filo [2007] NZCA 20; R v Howe [1982] 1 NZLR 618 (CA; Veen v Queen (No 2) (1998) 164 CLR 466, 478 (CA); R v Casey [1931] NZLR 594; P v Ah Kuoi [2016] WSSC 45; R v Varjan;  CA 97/03, 26 June 2003;  Costello v R [2015] NZCA 512; P v Gianno & Stanfield [2016] WSSC 4; P v Finau [2016] WSDC 33;  P v Hudson [2016] WSDC 45;  and P v Bourne [2016] WSDC  39.

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

SU’A NIUAPAI SU’A aka SU’A ENELIKO SU’A of Lotopa, Gagaifo Lefaga & Leulumoega but currently of Tafaigata Prison.
Defendant

Counsel:
Constable Vaai for Prosecution
Accused in person

Sentencing Date: 	05 May 2017

SENTENCING REMARKS OF JUDGE VIANE PAPALII
Charge 
1.	The Defendant Sua Niuapai a.k.a Sua Eneliko Sua (“Sua’) appears for sentence on one charge namely that between 1 June 2016 and 31 August 2016, he obtained by deception the sum of ST$3000.00 from Carol Tupuola of Vaitele –uta thereby causing loss to her, contrary to s 172 & 173(a) Crimes Act 2013.
2.	The offence carries a maximum penalty of a term of imprisonment not exceeding 7 years.  Su’a, you pleaded guilty to the offence at the earliest opportunity on 7 February 2017.
The Offending
3.	According to the summary of facts you accepted, on or between 1 June 2016 and 31 August 2016, the complainant met you at a garage sale. It is unclear from the summary where the garage sale was held. The complainant noticed a red Ford pick up (“The Ford”) which she wanted to buy. 
4.	You approached the complainant and told her that if she wanted to buy the Ford then she could have it for $3000. The Complainant agreed to this and arrangement for payment by instalment was made between you.
5.	Between 1 June and 31 August 2016, the complainant and her husband gave you ST$1000 as payment for the Ford. A week later during the same timeframe, the complainant paid you $500. A third payment of $500 was made by the complainant and her husband to your wife whilst you were in Savaii. The total paid by this time is $2000.
6.	At a later date, the complainant contacted you regarding the final payment and it was agreed that she would meet you in front of the Building Depot at Fugalei where the final sum of ST$1000 was to be paid to you.
7.	At that meeting you told the complainant that when the ford is fully repaired you will hand it over to her and her husband. Thereafter, the complainant and her husband made various follow up visits at your home regarding the Ford but you remained evasive. Your wife who is not charged with this offence also aided in concealing your whereabouts.
8.	The matter was later reported to police and you were subsequently charged with this offence on 26 January 2017. 
The Accused
9.	 Su’a, you are a 64 year old male of Lotopa and self employed as a mechanic. You are also married with children. 
The Victim 
10.	The complainant is Carol Tupuola (‘The Complainant”) of Vailele – uta married with 4 children and employed by Business System Ltd at Taufusi. A victim impact report was ordered but none was filed by the date of sentencing. 
11.	The complainant however appeared in person to inform the Court of her loss and that there has not been any restitution or reconciliation.       
Aggravating features of your Offending
12.	 Your offending was premeditated and calculated. Your plan was well thought out and executed with precision. Each time you calculated when and where the payment is to be paid. 
13.	But the whole time you knew very well you were never going to give the complainant the Ford in exchange but you misrepresented to the victim that you would. Your conduct was deceitful and level of culpability, high.
14.	The Complainant trusted you and you abused that trust. She relied on your word and in good faith paid over the total price for the purchase of the Ford. But this was to her detriment.
15.	The complainant ended up with a loss of ST$3000 and no ford vehicle in exchange. There has not been any form of restitution offered or done by the time of sentencing. This aggravates your offending.
16.	The fact the complainant and her husband paid the money by 4 instalments infers that it was not easy for them to get that money and they had to work hard to get it. Your actions were cruel.
Mitigating features of your offending
17.	There is none
Aggravating factor relating to you as an offender
18.	You are a recidivist of this type of dishonest offending. Your previous conviction record which you confirmed reflects the following: 
•	Date	
•	OFFENCE	
•	SENTENCE	

•	1/05/72	
•	Assault	
•	Convicted & fined $50 payable by 4 pm same date in default 3 months in prison	

•	29/06/73	
•	Insulting words 	
•	Convicted & fined $15.00	

•	26/0675	
•	False pretence	
•	Convicted & placed under probation for one (1) year and ordered to pay $192.00 restitution fee 	

•	7/07/92	
•	False pretence	
•	Convicted and fined $150.000 payable forthwith in default 2 months imprisonment 	

•	7/07/92	
•	False pretence	
•	Convicted & discharged	

•	7/07/92	
•	Unlawful conversion	
•	Convicted & discharged	

•	30/07/92	
•	5 counts of False pretence	
•	Convicted and sentences to 2 years imprisonment on each count served concurrently	

•	30/07/92	
•	3 counts of Forgery 	
•	Convicted & sentenced to 1 year imprisonment on each counts count to be served concurrently   	

•	30/0792	
•	Theft	
•	Convicted and sentenced to 2 years imprisonment  to be served accumulatively	

•	24/06/11	
•	Theft 	
•	Convicted and fined $400 to be paid forthwith in default 6 months imprisonment	

•	24/06/11	
•	False Pretence	
•	Convicted and fined $300 to be paid forthwith in default 6 months imprisonment	

19.	Your record shows you have graduated from 4 different types of dishonest offendings. Today you appear for sentence for obtaining by deception which is yet again, another type of dishonest offending. It has been 6 years since your last offending.
20.	As was said by the NZ Court of Appeal in R v Rautahi Previous convictions are a relevant aggravating factor, which the Court must take into account to the extent applicable, under s 9(1)(j) of the NZ Sentencing Act 2002. 
21.	The NZ provision above mirrors s.7(1)(j) of our Sentencing Act 2016 cited below:  
	“7. Aggravating and  mitigating factors –(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
(i)	the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.”
22.	In the words of the NZ Court of Appeal in R v Rautahi, the [NZ] provision “is statutory reflection of a longstanding principle of sentencing”. CJ Sapolu in P v Lemalu identified previous conviction as an aggravating feature relating to the accused as an offender. Our Courts have been adopting the same approach.
Mitigating factor relating to you as an offender
23.	 The only mitigating factor is your guilty plea.
24.	I do not consider your age as a mitigating factor. If anything your old age should have given you the wisdom and maturity to deter you from committing this offence. Unfortunately that is not the case here.  
Discussion
25.	In passing sentence, I bear in mind the purpose of sentencing our Court’s have adopted now set out in s 5  Sentencing Act 2016. The relevant purpose is to hold you accountable for the harm you have done to the victim and community by your offending; to promote in you a sense of responsibility and acknowledgement of the harm you inflicted and to denounce your conduct and deter you and others from committing this offence.
26.	The principles of sentencing applicable to you as set out in s 6 (a), (b) (e) & (f) Sentencing Act 2016 include the gravity of your offending and the degree of culpability which I view as high; the seriousness of the offending as indicative in the penalty imposed by Parliament; the general desirability of consistency with appropriate sentencing levels…in similar offending; and the effects of your offending on the victim.
27.	Your previous conviction record is a concern especially since it infers you have a “predilection” to commit dishonest types of offending. Despite a lapse of nearly 6 years since your last offending of theft and false pretence, you fell prey yet again at the age of 64 to commit this offence. 
28.	As was said by the NZ Court of Appeal in R v Filo:
Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at 597:
 the previous convictions of a prisoner may indicate a predilection (sic) to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.
29.	I bear in mind the principles of the Community Justice Act 2008 which promotes the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.  
30.	But for you Su’a, I do view you as a risk to innocent and vulnerable members of our community who must be protected against you. It is certainly impracticable and inconsistent with the safety of the community to grant you a non custodial sentence and keep you in the community. 
31.	It is obvious despite the Courts giving you non custodial sentences for some of your past offendings, you did not learn at all. No doubt you also apologised to the Courts for those earlier offendings. When I questioned you if you had made amends with the victim or taken any positive remedial action to repair the harm to her by repaying the money you obtained from her by deceit, you said you did not get around to it and there was no money to repay her. 
32.	You aplogised to the Court but I do not regard that apology as sincere at all. If it was sincere positive steps would have been taken by you to right the wrong and harm you inflicted on the victim. But since August 2016 when you received the last payment up to the time of sentencing today, some 10 months later, you have not done anything at all. The victim in the meantime continues to suffer.
33.	In my view, you have had chances to be rehabilitated through the non custodial sentences you received previously. However, for the instant charge, a deterrent and preventative custodial sentence is warranted.
34.	This type of offending is becoming far too prevalent in our small society. It seems it is easy for people like you to commit it with a clear conscious that it is wrong. A strong message must be sent to you and the public that the courts and our community do not condone this type of deceitful conduct. If you are facing hardships in life, find a job or work the land. But do not deceive innocent gullible people. If you feel tempted to do it, then be ready to face the consequences.
35.	The question I must consider is the starting time and length of imprisonment time for you to serve. On this issue I take guidance by our Courts from sentencing decisions regarding this type of offending.
36.	As observed by CJ Sapolu in P v Ah Kuoi there is no tariff case for fraud cases in Samoa. He referred to the approach in NZ as set out by the Court of Appeal in R v Varjan the leading case in NZ where: 
“At [22] – [23] it is stated:
	“[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims”.
	“[22] It is in the assessment of culpability that comparison with other case is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.”
37.	CJ Sapolu further observed that the guidance provided in R v Varjan has been applied in a number of New Zealand fraud cases. More recently, it was applied by the NZ Court of Appeal in Costello v R which was concerned with appeals against sentence on charges of obtaining by deception.
38.	I take note of CJ Sapolu’s sentencing remarks above as well as those in P v Gianno & Stanfieldand observations by our Court of Appeal in the same latter matter. In the spirit of consistency I have carried out a comparative analysis of sentences passed by this Court for similar offending such as P v Finau, P v Hudson, and P v Bourne.
39.	I bear in mind the circumstances of your offending are different from the above cases.	
	
40.	As a sentencing Court, I must in the circumstances of your offending, balance two competing principles which as was said in R v Rautahi are: 
	“…the principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.”.
41.	I do not intend to punish you twice for your earlier offending. But I will take into account your previous convictions as relevant to your character in passing a deterring and preventative sentence on you.
42.	Prosecution has recommended a starting time of three (3) years imprisonment with an uplift of 6 months for your previous convictions. I consider that starting time to be too high.  
43.	Having regard to all the aggravating features, mitigating factors and the need for deterrence, I will take 2 years (24 months) as a starting point. I uplift that to 6 months for your previous convictions and aggravating factors. I deduct 3 months for your guilty plea thereby leaving 27 months.
Penalty 
44.	Su’a you are convicted and sentenced to serve 27 months imprisonment with time you spent in custody pending this sentence to be deducted from that term.
JUDGE ALALATOA R VIANE PAPALII