SUPREME COURT OF SAMOA
Police v Pesaleli [2014] WSSC 13

Case name: Police v Pesaleli
Citation: [2014] WSSC 13
Decision date: 3 March 2014
Parties: 
POLICE (prosecution) and PEIKA PESALELI male of Vaipua Savaii and Salelologa.
Hearing date(s): 
File number(s): S2906/13, S2907/13, S2908/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
L Su’a-Mailo for prosecution
Accused in person
Catchwords: 
sentence, aggravated burglary,  burglary,
Words and phrases:
aggravating features, aggravating and mitigating features
Legislation cited:
Crimes Act 2013)  s.174 (1) (a) s.175 (1)s.161 s.165 (b) s.110 (1)
Cases cited:
Police v W [2008] WSSC 8
Hughes v R [2012] NZCA 388
R v Barker (2001) (CA 57/01, 30 July 2001 CA)
R v Williams (2000) (CA 79/00, CA 90/00 and CA 91/00, 31 May 2000 CA)
R v Xie [2007] 2 NZLR 240
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S2906/13, S2907/13, S2908/13

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

PEIKA PESALELI male of Vaipua Savaii and Salelologa.
Accused

Counsel: 	L Su’a-Mailo  for prosecution
		Accused in person 

Sentence:	3 March 2014  

S  E  N  T  E  N  C  E
The charges
1. 	The accused appears for sentence on one count of aggravated burglary, contrary to s.175 (1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment; three counts of burglary, contrary to s.174 (1) (a) of the Act, each of which carries a maximum penalty of 10 years imprisonment; two counts of theft, contrary to s.161 of the Act, each of which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b); and one count of causing injury with intent, contrary to s.110 (1) of the Act, which carries a maximum penalty of 7 years imprisonment.  
2. 	On Monday, 2 December 2013 when this matter was first called for mention, the accused requested that he wanted to engage counsel.  The matter was then adjourned without plea to Monday 16 December 2013 for the accused to engage counsel to act for him.  On 16 December 2013 the accused had not been able to engage counsel.  The matter was then further adjourned to 13 January 2014 to give the accused another opportunity to engage counsel.  On 13 January 2014 the accused still had not been able to engage counsel.  He advised the Court that he had changed his mind and wanted to enter a plea of guilty to all the charges against him.  He then pleaded guilty to all the charges.
3. 	It is to be noted that one of the counts of burglary was filed as an alternative count to the count of aggravated burglary so that those two counts are part and parcel of the same offending.  It is also to be noted that all the counts with which the accused has been charged arose from three separate but connected incidents of burglary.  Because of this, issues of cumulative sentences, concurrent sentences, and the application of the totality principle would necessarily arise for consideration during the sentencing process.
Cumulative sentences, concurrent sentences, and totality principle
4. 	In Police v W [2008] WSSC 8, this Court, for the purpose of passing sentence in that case, referred for guidance to the provisions of the New Zealand Act 2002 on cumulative sentences, concurrent sentences, and the totality principle.
5. 	Section 84 of the Act provides:
	“(1)  Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
	“(2)  Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
	“(3)  In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the Court may consider – 
	“(a)  the time at which they occurred; or
	“(b)  the overall nature of the offending; or 
	“(c)  any other relationship between the offences that the Court considers relevant.
6. 	Section 85 then provides:
	“(1)  Subject to this section, if a Court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
	“(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the overall gravity of offending.
	“(3)  If, because of the need to ensure that the term of cumulative sentences is not disproportionately long, the cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of current and cumulative sentences, must be prepared.
	“(4)  If only concurrent sentences are to be imposed – 
	“(a)  the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and 
	“(b)  each of the lesser offences must receive the penalty appropriate to that offence.”
7. 	In Hughes v R [2012] NZCA 388, Randerson J in delivering the judgment of the New Zealand Court of Appeal said at para [25]:
	“While s.84 provides general guidance on the approach to be adopted when considering cumulative or concurrent sentences of imprisonment, the Court must also have regard to the totality of the offending in terms of s.85”.
8. 	Further on, Randerson J said at paras [27] and [28]:
	“[27]  While s.84 provides general guidance in relation to cumulative and concurrent sentences, it is important to keep in mind the key principles of sentencing this Court discussed in R v Xie [2007] 2 NZLR 240 in relation to multiple offending.  This Court endorsed at para [17] the continuing application of the following key principles of sentencing stated earlier in R v Williams (2000) (CA 79/00, CA 90/00 and CA 91/00, 31 May 2000 CA) and R v Barker (2001) (CA 57/01, 30 July 2001 CA):
	“(a)  With multiple offences the sentences must reflect the totality of the offending.
	(b)  In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.
	(c)  The total sentence must represent the overall criminality of the offending and the offender.”
	“[28]	In Xie, this Court went on to say at para [18] that these principles survived the enactment of the Sentencing Act and that ss84 and 85:
	“... do not have the effect of trumping the central principle of sentencing for multiple offending, namely, that the total sentence must represent the overall criminality of the offending and the offender.”
9. 	As this case involves multiple offences as well as multiple offending, I will bear in mind the above approach and principles of sentencing in determining the appropriate end sentence for this case.
The offending
10. 	At the time the offences for which the accused is now appearing for sentence were committed, the accused was serving terms of imprisonment for burglary and theft, attempted burglary, escape from lawful custody, and possession of narcotics.  He became ill and was taken by the police to the Tupua Tamasese Meaole Hospital on Tuesday morning, 5 Novema 2013.  At the hospital he escaped from police custody.
11. 	Around 1:00pm in the afternoon of that same day, the accused went to a residential house at Leufisa tore the screen wire in one of the back rooms, removed three louvers of a window, and entered the house.  He then looked around inside the house for valuables to steal.  He found $50 cash and valuable items of property including a 22 gauge rifle and two cell phones valued at $150 each.  He then took those items and left the house.  The total value of the items of property including the cash taken by the accused was estimated at $2,245.  When the owners of the residential house returned home at around 2:00pm of that same afternoon, they discovered that someone had broken into their house and several of their belongings had been stolen.  The matter was then reported to the police.  In relation to this offending, the accused was charged with one count of burglary simpliciter and one count of theft.
12. 	On Thursday night 7 November 2013, the accused went to a two story residential home at Lalovaea at around 3:00am in the morning.  The complainant homeowner and his wife were asleep in their bedroom on the top floor while their employees were asleep on the ground floor.  The wife of the complainant sensed in her sleep that someone was moving around inside their bedroom.   She looked up and saw someone standing at the door.  She thought it was her son and called out to him twice.  When there was no answer, she realised it was not her son.  She then called out “Vaai le gaoi” (look out for the thief).  At that time, the accused had turned away and ran down the steps.  The complainant woke up and went down the steps to look for the intruder.  When he went outside of the house, he saw the accused running away.  He then gave chase.  As the accused was climbing the fence around the complainant’s house in order to make good his escape, the complainant caught up with him and grabbed his foot and pulled him down.  When the accused fell to the ground, the complainant beat him up.  The accused then pulled out a knife he had been carrying in his shorts and started stabbing at the complainant.  The complainant sustained a laceration behind his left arm, a laceration on his left upper back, a laceration on the left side of his abdomen, and a superficial laceration on his forehead. Fortunately, none of the injuries was fatal.  As a result of these injuries, the complainant withdrew from the accused who then managed to escape.  Apparently, no item of property was stolen from the complainant’s house. The complainant and his wife had woken up just in time to prevent any theft being committed.  In relation to this offending, the accused was charged with aggravated burglary, burglary simpliciter, and causing injury with intent.
13. 	Then on Saturday night 9 November 2013 at sometime after 1:15am, the accused went to a residential house at Vailima and cut open the screen wire beside the entrance door.  He then reached inside, unlocked the door, and entered the house.  The complainant and his wife were asleep.  When the complainant woke up at about 5:00am, he found that several items inside the kitchen had been removed, various cupboards and drawers were open, and some of his and his wife’s belongings were outside on the driveway.  The police were then contacted.  A number of items of property were found to have been stolen.  These included an apple ipad valued at $1,560 and a laptop valued at $1,270.  The total value of the stolen properties was estimated at $4,101.25.
14. 	On Monday 18 November 2013, the accused was apprehended by the police and taken back into custody.
Victim impact reports
15. 	The victim reports on the complainant of the burglary committed by the accused at Leufisa on 5 November 2013 and the complainant of the aggravated burglary committed by the accused at Lalovaea on 7 November 2013, show that both complainants and their respective wives have greatly suffered psychologically from the actions of the accused.  The complainant of the aggravated burglary committed at Lalovaea also still bear scars on his body where he had been injured with a knife by the accused.  Financial expenses have also been incurred by both complainants to make their respective homes more secure from any further burglaries.  There was no victim impact report on the victims of the residential house at Vailima that was burgled.
The accused
16. 	The accused is 34 years old.  He is a recidivist burglar.  He has 23 previous convictions for burglary.  He also has 23 previous convictions for theft, 3 previous convictions for unlawful entry, one previous conviction for attempted burglary, and 7 previous convictions for escape from lawful custody.  He also has previous convictions for other offences which are of a different kind.
17. 	It also appears from the accused’s previous conviction card that the accused has been committing burglary and theft since 1996 when he was 16 years old.  Plainly, this has been his way of making a living.  Probationary supervision at the early stage of his criminal career did not work.
The aggravating features of the offending
18. 	The lead charge in this case is the aggravated burglary of the residential house at Lalovaea on Thursday night 7 November 2013.  The aggravating features of this offending are: (a) the upset and sense of intrusion and violation suffered by the owners of the burgled home especially as the accused entered the bedroom of the owners whilst they were asleep, (b) the time of the burglary which was the early hours of the morning while the owners and their family were asleep, (c) the heightened risk of violence and confrontation, (d) possession by the accused of a knife which he  must have had with him at the time he was inside the complainant’s house, (e) the use by the accused of the knife to cause injuries to the complainant in order to prevent his being captured as well as the number and nature of those injuries, and (f) the financial and psychological impact of the offending on the complainant and his wife apart from the upset and the sense of violation.  There is no mitigating feature of this offending.
19. 	In relation to the burglary of the residential house at Leufisa on Tuesday afternoon 5 November 2013, the aggravating features of the offending are: (a) the upset and sense of intrusion and violation suffered by the home owners, (b) the risk of confrontation and violence, (c) some valuable items of property were stolen, (c) the total value of the items of property that were stolen, (d) the damage to the house as the screen wire of one of the windows was torn and three louvers were removed, and (e) the financial and psychological impact of the accused’s actions apart from the upset and sense of violation suffered by the home owners.
20. 	In respect of the burglary of the residential house at Vailima on Saturday night 9 November 2013, the aggravating features of the offending are: (a) the upset and sense of intrusion and violation suffered by the occupants of the burgled house, (b) the time of the burglary which was the early hours of the morning while the occupants were asleep, (c) the heightened risk of violence, (d) the valuable items of property that were stolen, (e) the total value of the stolen properties, and (f) the damage to the house which consisted of the screen wire next to the entrance door that was torn.  There is no victim impact report on this complainant and his wife who were expatriates working in a Government ministry.  I presume they were not available for a victim impact report.
21. 	The fact that all the offences were committed during the time the accused had escaped from lawful custody is an aggravating feature which is common to each offending.
Aggravating and mitigating features personal to the accused
22. 	The aggravating feature personal to the accused is his recidivism.  As earlier pointed out, he has 23 previous convictions for burglary and a number of other previous convictions for offences which involved dishonesty.  The only mitigating feature personal to the accused is his guilty plea.  
The sentencing approach
23. 	The sentencing approach I have decided to adopt in this case is to take the charge of aggravated burglary as the lead charge and fix a lead sentence on that charge.  That sentence will take into account the alternative charge of burglary and the charge of causing injury with intent in relation to the same offending as well as the offendings in the two separate burglary charges as well as the other charges relating to those separate offendings.  The sentences will then be made concurrent.  This will be in line with the guidance provided in s.84 (2) of the New Zealand Sentencing Act 2002 that concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
Discussion 
24. 	For the lead charge of aggravated burglary, I will take 4½ years as the starting point for sentence.  This takes into account not only the offending in relation to the aggravated burglary charge and the alternative charge of burglary simpliciter but also the offendings in relation to the separate charges of burglary simpliciter.  I will then add on 12 months for the accused’s previous convictions.  That increases the starting point to 5½ years.  I will give the accused a 20% discount for his guilty plea.  That reduces the starting point to 4½ years.  The accused is sentenced to 4½ years imprisonment on the charge of aggravated burglary.  This is the lead sentence.
25. 	For each of the charges of burglary simpliciter, the accused is sentenced to 2 years imprisonment.  For each of the charges of theft, the accused is sentenced to 18 months imprisonment.  For the charge of causing injury with intent, the accused is sentenced to 12 months imprisonment.  All sentences are to be concurrent.
Result 
26. 	The accused will effectively serve a sentence of 4½ years imprisonment.
27. 	This sentence is to commence immediately after the accused has served his current sentences of imprisonment.
CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution