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Police v Moke [2014] WSSC 47 (12 September 2014)

SUPREME COURT OF SAMOA

Police v Moke [2014] WSSC 47

Case name: Police v Moke

Citation: [2014] WSSC 47

Decision date: 12 September 2014

Parties: POLICE Prosecution AND MOKE MOSE male of of Faleula, Toamua and Salesatele, Falealili Accused

Hearing date(s):

File number(s): S2255/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
R Titi for prosecution
Accused in person

Catchwords:
Burglary, theft, aggravating and mitigating features, sentence

Words and phrases:

Legislation cited:
Crimes Act 2013s.174 s.174(1) s.165(b)

Cases cited:
Police v Ajawas [2013] WSCC 49,
Police v Lafi [2013] WSSC 83
Police v Tovia [2013] WSSC 64, para 17;

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2255/14

BETWEEN

P O L I C E
Prosecution

A N D

MOKE MOSE male of of Faleula, Toamua and Salesatele, Falealili.
Accused

Counsel
R Titi for prosecution
Accused in person

Sentence: 12 September 2014

S E N T E N C E

The charges

1. The accused Moke Mose appears for sentence on four charges of burglary contrary to s.174 of the Crimes Act 2013 and four charges of theft contrary to s.161 of the Act. The maximum penalty for burglary pursuant to s.174(1) is 10 years imprisonment and the maximum penalty for theft pursuant to s.165(b) is 7 years imprisonment because of the total value of the properties stolen by the accused in relation to each of the burglary charges. The accused pleaded guilty to all charges at the earliest opportunity.

The offending

2. The four houses which the accused burgled are all at Vaitele-Fou which has become a densely populated urban area. The accused’s family which was originally from the village of Salesatele, Falealili, also lives at Vaitele-Fou.
3. On Thursday 1 May 2014, the first complainant was out shopping with his wife and did not return home until around 9:00pm. Their house was left unoccupied. During their absence, the accused broke into their house by removing the window louvres of their bedroom. The accused then stole the following items of property: (i) an electrical water pump valued at $1,800, (ii) a steel weed eater valued at $580, and (iii) a hair shaver valued at $39. The total value of these properties is $2,149.00.
4. On Friday 20 June 2014, the second complainant was at work and did not return home until 6:45pm in the evening. During the second complainant’s absence from his home, the accused broke into his house by forcing the front door open. He then stole the following items of property: (i) a weed eater valued at $1,028.50, (ii) a pair of Nike sports shoes valued at $195.00, (iii) a black handbag valued at $50.00, (iv) a mini boom box speaker valued at $459.00, and (v) a blue cap valued at $55.00. The total value of these properties is $1,787.50.
5. On Friday 27 June 2014, the third complainant left her house around 9:00am and did not return home until 2:00pm. While the third complainant was away, the accused broke into her house by removing the window louvres of the bedroom. He then entered the house and stole the following items of property: (i) a Phillip DVD valued at $300, (ii) a laptop valued at $1,500.00, (iii) two hair strainers valued at $60 each, (iv) cash of $60, (v) chocolates valued at $40.00, and (vi) two sets of bed sheets valued at $88. The total value of these properties is $2,198.00.
6. On Tuesday 8 July 2014, the fourth complainant went to his cousin’s house which he was looking after because his cousin was overseas. He found that someone had broken into his cousin’s house by ripping the screen wire of the front window and removing three louvres. He also discovered that the following items of property had been stolen from his cousin’s house: (i) a weed eater valued at $1,120.00, (ii) a chainsaw valued at $800.00, (iii) a wheelbarrow valued at $300, (iv) a sandpaper machine valued at $145, (v) a skillsaw GMC 1285W valued at $450, (vi) a Doralsaw CS-450 valued at $310, (vii) an Ogito drill valued at $100, (viii) a radio superjack valued at $50, (ix) a sprayer valued at $130.00, (x) a pair of sports shoes valued at $70, (xi) a purple bag valued at $30, (xii) a black box valued at $5.00 (xiii) a CD holder valued at $20.00 (xiv) a stabila ruler valued at $150.00, (xv) a travel bag valued at $50.00, (xvi) two lavalavas valued at $20.00, and (xvii) a soap valued at $1.00. The total value of these items of property is $3,751.00.
7. On this fourth incident of burglary by the accused, a neighbour saw the accused standing in front of the house of the fourth complainant’s cousin. About two hours later, this neighbour saw the accused leaving the house pushing a wheelbarrow with different items of property in it. The neighbour became suspicious and so asked the accused if anyone was in the house. The accused gave a made-up name. This made the neighbour even more suspicious and he called the police immediately. When the police arrived, they found the accused with the wheelbarrow of stolen properties.
8. The accused was then arrested and taken to the Faleata Police Post. When interviewed by the police, the accused admitted to all the four burglaries with which he has been charged. The total value of all the properties stolen by the accused from those burglaries is $10,155.00.

The accused

9. The accused is 22 years old. He was born and brought up in the village of Salesatele, Falealili where he attended school up to Year 8. When his family moved to Vaitele-Fou, he found employment as a baker in various bakeries around Apia. At the time of these offences he was working for a bakery shop at Faleula earning a weekly wage of $160.
10. As it appears from the pre-sentence report, the accused told the probation service that he committed these offences in order to get money to buy alcohol and cigarettes for himself. I find it difficult to comprehend this reason given by the accused for committing these offences given that he was at the time working as a baker earning $160 a week.
11. The accused also told the probation service that he is familiar with the families whose houses he burgled. This is because he usually hangs out with the young boys of those families. He would pretend to look for his friends when he visits these families. If he finds someone at the house he would ask for his friend who lives in that family. When he finds there is no one in the house, he would then burgle that house. This was done during the day because the accused worked as a baker at night.
12. The accused is a first offender but it does not appear from the pre-sentence report that he had been a person of previous good character. He moved around from one job to another as a baker. In one of those jobs he was terminated for being slack and poor attendance.
13. The accused has pleaded guilty to the charges against him at the earliest opportunity.

The victims

14. It is evident from the victim impact reports that all the complainants in this matter have suffered psychologically as a consequence of the accused’s offending. Except for the fourth complainant whose cousin’s stolen properties were retrieved by the police when they caught the accused red-handed, the other complainants have also suffered financially because their properties stolen by the accused have not been recovered.

The aggravating and mitigating factors

15. The aggravating factors of this case in relation to the offending are: (a) home invasion, (b) the psychological impact on the victims, that is to say, the upset and sense of intrusion and invasion suffered by the complainants, (c) the financial impact on three of the victims, (d) total value of the stolen properties in relation to each burglary, (e) the total number of burglaries and theft that were committed, and (f) the betrayal by the accused of the trust of his friends whose families houses were burgled. There is no mitigating factor in relation to the offending.
16. In relation to the offender, there is no aggravating factor. But there is a mitigating factor which is his plea of guilty at the earliest opportunity.

Discussion

17. The accused in this case is a first time burglar. I would not consider the accused a spree burglar because he is not appearing for sentence on a ‘large number’ of burglaries all committed within a short space of time: Police v Ajawas [2013] WSCC 49, para 13. Unlike most of the burglars who appear before the Court, this accused was working as a baker earning $160 a week. So he was not someone without money. He also comes from a stable family unlike many burglars who come from broken families or a destabilised environment.

Even though a first time burglar is usually given a non-custodial sentence, a custodial sentence may still be imposed if the circumstances of the case so warrant: Police v Ajawas [2013] WSSC 49, para 13; Police v Tovia [2013] WSSC 64, para 17; Police v Lafi [2013] WSSC 83, para 18; and the subsequent burglary cases. Given the circumstances of this case, I have decided to impose a custodial sentence even though the accused is a first time burglar. In doing so, I have not ignored the relative young age of the accused and his prospects for

18. Having regard to the totality of the offending and the related aggravating factors as well as the accused’s early plea of guilty and his prospects for rehabilitation, I will sentence the accused to 7 months imprisonment on each charge to be served concurrently. This is to be followed by 10 months supervision in terms of s.12 of the Community Justice Act 2008. Any time that the accused has already spent in custody is to be deducted from his sentence of imprisonment.
    

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CHIEF JUSTICE