SUPREME COURT OF SAMOA
Police v Tagaloa and Autagavaia [2014] WSSC 6

Case name:  Police v Tagaloa 
Citation: [2014] WSSC 6  
Decision date: 27 January 2014
Parties: POLICE (prosection) and FAATIGA TAGALOA aka LELEI TAGALOA male of Gautavai Savaii and Fagalii-uta, and ASO TUPUTA AUTAGAVAIA male of Vailoa Palauli and Mulifanua.
Hearing date(s): 
File number(s):  FILE NOS: S2361/13, S2362/13, S2363/13, S2450/13
S2451/13, S2452/13, S2453/13, S2454/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
L Su’a-Mailo for prosecution
Accused in person 
Catchwords: 
sentence, burglary, theft, 
Words and phrases:
aggravating and mitigating features
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NOS: S2361/13, S2362/13, S2363/13, S2450/13
S2451/13, S2452/13, S2453/13, S2454/13

BETWEEN

P   O   L   I   C   E
Prosecution

A  N  D

FAATIGA TAGALOA aka LELEI TAGALOA male of Gautavai Savaii and Fagalii-uta and ASO TUPUTA AUTAGAVAIA male of Vailoa Palauli and Mulifanua.
Accused

Counsel:	L Su’a-Mailo for Prosecution
		Accused in person
Sentence:	27 January 2014

S  E  N  T  E  N  C  E
1.	The accused Faatiga Tagaloa and Aso Tuputa Autagavaia both of Gautavai, Savaii, appear for sentence on one joint charge of burglary, contrary to s. 174(1)(a) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and to two joint charges of theft, contrary to s. 161 of the Crimes Act 2013, each of which carries a maximum penalty of one year imprisonment under s. 165 (d).  To all three charges both accused vacated their initial not guilty pleas on the date of trial and entered guilty pleas.
2.	The principal complainant in this matter is a 56 year old male of Fagalii-uta.  He owns a residential house and operates a small shop at Fagalii-uta.  Behind his residential house is a faleoo.  He is also related to the two accused.  His wife is an aunt of the accused Faatiga Tagaloa.
3.	Sometime in 2013, the accused were banished from their village of Gautavai.  Banishment is a penalty that is usually reserved by a village council for offences which range from the very bad to the worst.
4.	When the accused were banished from their village, they came and stayed with the principal complainant and his family at Fagalii-uta at the faleoo behind the complainant’s house.  On Wednesday 16 October 2013, the principal complainant spoke to both accused and warned them that he had become aware of the reason why the accused Faatiga Tagaloa was banished from Gautavai so that if they even become drunk again he would not accept them at his place.
5.	On the night of that same day at around 2:00am in the morning, the tow accused entered the house of the complainant while everyone was asleep and stole the mobile phone of the complainant’s daughter.  This mobile phone was valued at $99.  The accused also stole a suitcase which belonged to the complainant’s son.  This sentence contained a digital camera valued at $450, one t-shirt valued at $50, and a $20 note.  The total value of these items of properties which were inside the suitcase was $520.
6.	The accused then entered the complainant’s shop by forcefully opened the front part of the shop which was locked from inside with a chain.  They then stole from the shop three 12 ounce tins of Pasefika corned beef of the total value of $25.50, two tins of span of the total value of $8, three packets of cigarettes of the total value of $25.20, and $15 cash.  The total value of these properties was $73.70.  The accused then left the complainant’s premises.
7.	About 3:00am that same morning, the complainant’s son returned from a night out.  He went to the faleoo and discovered that the accused were not sleeping there as they normally do.  He then looked for his sister’s mobile phone to call the accused to ask then where they were.  He discovered that his sister’s mobile phone was missing.  He then proceeded to check the shop.  He found that the front part of the shop had been opened.  He then informed his father, the complainant, who went to the shop and found that several goods had been stolen.  The complainant then called the police who came to the scene but the accused were nowhere to be seen.
8.	On Friday 18 October 2013 in the early hours of the morning, the police received a call from an informer that the accused they were looking for were at the Tupua Tamasese Meaole Hospital for treatment having being involved in a scuffle.  The police immediately went to the hospital where they found the accused Faatiga Tagaloa in the waiting room.  When the police questioned this accused about his name, three times he gave a false name before he told the police his correct name is Faatiga.  The police then went to the surgical room and confirmed that the accused Aso Tuputa Autagavaia was there undergoing surgical treatment.
9.	The police then took with them to the Apia police station the accused Faatiga where he was cautioned and interviewed.  Faatiga admitted to the allegations made by the principal complainant to the police against him.
10.	Later on in the same morning, Friday 18 October 2013, the police returned to the accused Aso Tuputa Autagavaia at the hospital and discovered that that accused had escaped.  The police then went in search of that accused and found him sleeping under a table inside a house at Vaitele.  He was apprehended by the police and brought to the Apia police station where he was cautioned and interviewed.  This accused also admitted to the allegations made by the complainant to the police against him.
11.	The joint charge of burglary against the accused relates to the burglary of the complainant’s shop; one joint charge of theft relates to the goods stolen by the accused from the complainant’s shop; and one joint charge of theft relates to the stealing of the mobile phone belonging to the complainant’s daughter and the suitcase belonging to the complainant’s son.
12.	The accused Faatiga Tagaloa is 21 years old.  He is single and was employed at a supermarket.  He finished school at Year 12.  As already mentioned, the wife of the complainant is his aunt.  She asked the probation service for leniency on her nephew.  She told the probation service that Faatiga is a person of good character and that what has happened is out of character.  She told the probation service that both accused have apologised to her and her husband and have returned all the properties that they stole.  They have accepted the apology and she still wants Faatiga to stay with her family at Fagalii-uta.  Faatiga is a first offender and therefore a first time burglar. 
13.	The accused Aso Tuputa Autagavaia is 25 years old as it appears from his date of birth in the pre-sentence report.  He finished school at Year 11 and then attended the school of fine arts for two years.  He was then employed as a elei designer.  He is also a first offender and therefore a first time burglar but ascending to the pre-sentence report, Aso has been smoking marijuana for 3 years.
14.	Aso’s mother told the probation service that her son has good values and qualities.  He usually sends money to his family in Gautavai, Savaii, for their upkeep and when he visits his family he would always help his siblings with the cultivation of the family plantation and with family chores.
15.	The aggravating features of the offending in this case are (a) the abuse by the accused of the generosity shown to them by the complainant and his family in allowing them to stay in their family because they had been banished from their village in Savaii, (b) the total value of the properties that were stolen, and (c) part of the offending involved home invasion when the accused stole properties from inside the complainant’s residential house while he and his family were asleep.  There is no mitigating feature of the offending.
16.	In terms of mitigating features personal to the accused as offenders, there are (a) the relatively young age of both accused, especially the accused Faatiga, (b) the apology by the accused to the complainant and his wife which was accepted so that this matter has been reconciled, (c) the return of all the stolen properties to the complainant and his wife told the probation service, and (d) the pleas of guilty by both accused to the charges against them.
17.	 I do not consider the first offender status of the accused as a mitigating factor personal to them.  They were under banishment from their village for offending within their village when they committed the offences for which they are now before the Court.  The accused Aso had also been smoking marijuana for three years.  However, the pre-sentence report notes that Aso has skills and expertise in arts and design.
18.	The pre-sentence reports on both accused also notes that the probation service has assessed both accused and that they are suitable for community based sentences should the Court decides to take that option instead of a sentence of imprisonment.
19.	As I have said in several cases before, sentencing is not a mechanical process.  It involves evaluation of all the relevant circumstances and sound judgment.  This involves taking into account and weighing the public interest in denunciation of the offending, deterrence of the accused from re-offending and others who may be inclined to commit this kind of offending, as well as rehabilitation so that the offender becomes a useful and responsible member of society.  
20.	Both accused have also been in custody for over 3 months since 18 October 2013 and must now be aware of the gravity of their offending and that it can attract a custodial sentence.
21.	After weighing all the relevant circumstances and considerations, each of the accused is sentence to 12 months probation. 

CHIEF JUSTICE