SUPREME COURT OF SAMOA
Police Tovia [2013] WSSC 64

Case name:  Police v Tovia
Citation: [2013] WSSC 64  
Decision date: 5 August 2013
Parties: 
POLICE (prosecution) and PALEMENE TOVIA male of Moataa (accused)
Hearing date(s): 
File number(s):  S949/13, S950/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
F E Niumata and O Tagaloa for prosecution
Accused in person 
Catchwords: 
Sentence, burglary, aggravating and mitigating factors, 
Words and phrases:
Entry into a private dwelling house, home entry, restitution, totality principle, starting point for sentencing approach, first time burglar
Legislation cited:
Crimes Act 2013
Cases cited:
Police v Seminare Ajawas (2013) (SC Nos S8036/13 – S8044/13
Police v Vester Toa and Peter Alatise (2013) (SC Nos S798/13 and S799/13; 
Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13
Police v Enosi Lipa (2013) (SC No. S693/13; 
Police v Sawej Viliamu (2013) (SC No. S673/13
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs S949/13, S950/13

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

PALEMENE TOVIA male of Moataa.
Accused

Counsel: F E Niumata and O Tagaloa for prosecution
Accused in person

Sentence: 5 August 2013   

S  E  N  T  E  N  C  E
The charges
1.	The accused Palemene Tovia appears for sentence on one charge of burglary under s.174 (1) (a) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment and one charge of theft under ss.191 and 165 (c) which carries a maximum penalty of 2 years imprisonment.  To both charges the accused pleaded guilty at the earliest opportunity.
2.	Since 25 June 2013 when the charges were laid against the accused, he has been remanded in custody.
The offending 
3.	It was in the early hours of Sunday morning 23 June 2013.  The lights of the victim’s house was still on.  The accused entered the victim’s house and stole the following items of property: (a) one i-phone valued at $600, (b) one nokia phone valued at $35, and (c) cash of $170.  When the victim and her family woke up in the morning, they discovered that the said items were missing. They were wondering who had taken them.
4.	Then on the following day, Monday 24 June 2012, while the victim’s son was walking along the main road he met the accused’s brother.  He noticed that the accused’s brother had in his possession one of the victim’s missing phones.  When he asked the accused’s brother about it, the accused’s brother said he received it from the accused.
5.	On the same day, the victim had lodged a complaint with the police.  The next day, Tuesday 25 June 2013, the accused turned himself in to the police and admitted his offending. 
6.	According to the pre-sentence report, the accused told the probation service that he had been drinking at the RSA Night Club.  He consumed eight large bottles of Vailima which was a substantial quantity of alcohol. So he was intoxicated.  At 11:30pm, he left the RSA and walked all the way to his home at Moataa.  When he came by the house of the victim at Moataa the light was still on.  He saw the said phones lying on the table.  He then entered the victim’s house and took the phones.  The accused also told the probation service that he had returned the phones he had stolen to the victim.  This has been confirmed by the victim.  The sum of $150 has also been repaid by the accused and his mother to the victim as it appears from the victim impact report.
The accused
7.	The accused is a 19 year old male of Moataa.  He is single.  He had a good level of education finishing school at Year 13.  He then found employment from which he earned $120 a week.  Because of this offending, his employment was terminated.  
8.	The accused is also a first offender and a first time burglar.  There is nothing to show that he had been person of bad character or reputation prior to the commission of these offences.  In fact the accused’s mother told the probation service that her son has been a reliable, supportive and trustworthy member of their family.  The testimonial from the pulenu’u of the accused’s village shows that the accused has been a good youth.  Likewise, the testimonial from the accused’s former employer shows him to have been a responsible and reliable employee.  So the accused is a first offender and had been a person of good character prior to the commission of these offences. It also appears that these offences were opportunistic rather than pre-meditated.  
9.	The pre-sentence report also shows that the accused has apologised to the victim and his apology was accepted.  The accused’s mother has also apologised to the victim and her apology was also accepted.  The victim confirmed to the probation service the apologies by the accused and his mother and told the probation service that she has forgiven the accused.
10.	The accused has also returned the stolen phones to the victim and the sum of $150 has been restored.  He has also pleaded guilty to the charges at the earliest opportunity.  Since 25 June 2013, when he was charged, he has been remanded in custody.
The victim 
11.	The victim is a 55 year old female of Moataa.  She is apparently a forgiving person.  According to the victim impact report, the victim cried and explained that she feels sorry for the accused and his situation.  She also said that she prays for the accused and his family and she has forgiven the accused.
The aggravating and mitigating factors
12.	The aggravating factors in relation to this offending are: (a) the time it was committed which was the early hours of the morning, (b) the value of the properties stolen, and (c) home entry, that is to say, entry into a private dwelling house:  Police v Seminare Ajawas (2013) (SC Nos S8036/13 – S8044/13; sentence delivered on 31 July 2013), para 22.  The only mitigating factor relating to the offending is that almost full restitution has been made.
13.	In my opinion, home entry is an aggravating factor relating to the offending because it runs the risk that there is someone in the house or a sleeping owner may wake up and find the burglar in his house. This may lead to violence and someone may get hurt.  There is also likely to be distress, anxiety, and a sense of violation felt by the home owner upon discovery that his home has been burglared.  Such distress, anxiety, and sense of violation may have long term effects.  
14.	There is no aggravating factor relating to the accused as offender.  But there are several mitigating factors personal to the accused.  These are: (a) the accused is a first offender and had been a person of good character prior to the commission of these offences, (b) the accused is also a first time burglar, (c) the apologies by the accused and his mother which were accepted by the victim, (d) forgiveness of the accused by the victim, (e) the accused’s cooperation with the police because he voluntarily turned himself in to the police and readily admitted his offending to the police, and (f) the accused’s guilty plea at the earliest opportunity.
Sentencing approach appropriate to this case
15.	As explained Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13; sentences delivered on 2 August 2013), para 2, and Police v Seminare Ajawas (2013) (SC Nos S8036/13 – S8044/13; sentence delivered on 31 July 2013), para 9, for sentencing purposes, where the accused is charged with burglary and theft arising from the same criminal offending, it is normal to apply the totality principle.  A separate sentence is imposed for the burglary charge and a separate sentence is imposed for the theft charge.  Both sentences can be of the same duration.  The sentences are then made concurrent.  This approach would be applied where the sentencing Judge is mindful of imposing an end sentence of imprisonment.  It would not be appropriate where the sentencing Judge is mindful of imposing a non-custodial sentence.
16.	It has also been explained in recent sentencing divisions of this Court that the starting point for sentencing approach is appropriate where the sentencing Judge is mindful of imposing a custodial sentence but it is not appropriate where a sentencing Judge is mindful of imposing a non-custodial sentence: Police v Dylan Wilson and  Kopo Seuamuli Fua (supra), para 18, Police v Vester Toa and Peter Alatise (2013) (SC Nos S798/13 and S799/13; sentences delivered on 29 July 2013), para 18, Police v Enosi Lipa (2013) (SC No. S693/13; sentence delivered on 29 July 2013), para 20, and Police v Sawej Viliamu (2013) (SC No. S673/13; sentence delivered on 12 July 2013), para 12.
17.	Furthermore, in the case of a first time burglar, a sentence of imprisonment may be imposed but frequently that is not the case: Police v Dylan Wilson and Kopo Seuamuli Fua (supra) and Police v Seminare Ajawas (supra).  In other words, a sentence of imprisonment may be imposed on a first time burglar if the circumstances of the case so warrant.  But that does not often happen.
The decision 
18.	Having regard to the aggravating factors relating to the offending and the mitigating factors relating to the offending and to the accused as offender,  I have decided to impose a non-custodial sentence.  What is needed for this accused is probationary supervision and counselling while he is still a youth.  The public interest in the rehabilitation of the accused should therefore take precedence over the public interest in denunciation, retribution and deterrence.  But I must warn the accused that if does not make good use of this opportunity given to him to mend his ways, then he is likely to go to prison if he comes before the Court again.  So let this be a lesson to him.
19.	The accused is sentenced to 12 months probation.

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution