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Police v Tulua [2014] WSSC 61 (20 August 2014)

SUPREME COURT OF SAMOA

Police v Tulua [2014] WSSC 61

Case name: Police v Tulua

Citation: [2014] WSSC 61

Decision date: 20 August 2014

Parties: POLICE (prosecution) and PAUESI TULUA (accused) male of Vaitoloa.

Hearing date(s):

File number(s): S1920/14 – S1927/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Mailo-Su’a and G Nelson for prosecution
Accused in person

Catchwords:

Words and phrases:
sentence, burglary, theft, aggravating and mitigating features >

Legislation cited:
Crimes Act 2013s.174(1) (a) s.161 s.165 (d).

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1920/14 – S1927/14

BETWEEN

P O L I C E
Prosecution

A N D

PAUESI TULUA male of Vaitoloa.

Accused

Counsel
L Mailo-Su’a and G Nelson for prosecution
Accused in person

Sentence: 20 August 2014

S E N T E N C E

The charges

1. The accused appears for sentence on four charges of burglary, contrary to s.174(1) (a) of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment, and four charges of theft, contrary to s.161 of the Act, each which carries a maximum penalty of one year imprisonment under s.165 (d). All charges arose out of the same facts and the accused pleaded guilty to them at the earliest opportunity.

The offending

2. At the time of the offending, the accused was employed by the complainant and her husband as a gardener at their home at Vaoala. He started work at 7:00am in the morning. Every morning at around 7:30am, the complainant’s husband would take their 13 year old daughter to a store at Vailima to catch the bus to go to school. Then between 11:00am and 11:30am, the complainant’s husband would return home to do some work in his office at home. Apparently, the complainant’s husband has an office at home. At such times when the complainant’s husband was at home doing work in his office, the accused would be doing the gardening outside of the house.
3. The accused must have become aware of the daily routine by the complainant’s husband because when the complainant’s husband left home at 7:30am on Tuesday morning 10 June 2014, the accused entered the complainant’s house without permission and went into the office of the complainant’s husband. He looked around for something of value to steal. He found a small black bag which contained bundles of money hidden in one of the bookshelves. He then took $400 in four $100 notes from the bag.
4. On Thursday 12 June 2014, after the complainant’s husband had left the house at 7:30 am to take his daughter to catch the bus to school, the accused again entered the house without permission and went straight to where he had found the small black bag two days before. Again, he found the small black bag in the same place. He then took $200 cash in two $100 notes from the bag.
5. On Wednesday 18 June 2014, the accused again entered the house after the complainant’s husband had left the house and took $200 in two $100 notes from the same small black bag. By that time, the complainant and her husband had noticed that their monies in the small black bag were frequently missing. They became very suspicious and installed a hidden camera in the office of the complainant’s husband.
6. On Friday morning 20 June 2014, the accused again entered the office of the complainant’s husband after the complainant’s husband had left the house. Without any permission, the accused again entered the house and went straight for the small black bag. This time, there was no money in the bag. He then went into the bedroom of the complainant and her husband and stole a ring worth $300 to $400. The accused was not aware that all his actions and movements inside the office of the complainant’s husband that morning were being photographed and recorded by the hidden camera.
7. In the afternoon of the same day, the complainant’s husband returned home in high anticipation. He must have been confident that his hidden camera had caught the thief. He was not disappointed. To his surprise, he saw on the camera that it was his own gardener who was inside his office. The police were alerted and the accused was taken into police custody. The accused made a full confession to the police. None of the money that was stolen has been recovered but the police obtained the ring from the accused and have returned it to the complainant.
8. Apart from the ring, the total amount of cash stolen by the accused was $800.

The accused

9. As it appears from the pre-sentence report, the accused is 21 years old. His parents separated when he was born and he was brought up by his maternal grandmother at Vaoala on a very low income. When the accused’s grandmother passed away in 2013, the accused was left with other members of his family at Vaoala.
10. The accused also had a low level of education. He dropped out of school at Year 5 because his family could not afford to continue his education. When he left school, he stayed home and assisted his family with daily errands. In 2013, he found employment as a gardener with the complainant and her husband at Vaoala.
11. The accused is a first offender. He has expressed deep remorse to the probation service and implored for compassion and a second chance to redeem himself. The accused’s maternal uncle Faalavaau with whom the accused is now staying has also pleaded for a second chance for the accused. A lady named Imeleta of the accused’s family has also apologised to the complainant and her husband but the accused has not apologised.
12. The testimonial from the pastor of the accused’s village of Vaoala shows that when the accused’s grandmother was alive, she used to bring the accused to Church services on Sundays, Sunday schools, youth activities of the Church, and Sunday toonais at the pastor’s house. However, as the accused grew up, the pastor says he seldom sees the accused. That was because the accused seldom attends Church services on Sundays or youth activities of the Church. This has been the situation since the accused’s grandmother passed away in 2013 at the age of 88.

The victim impact report

13. The victim impact report shows that since the robberies and thefts committed by the accused, the complainant and her husband have changed all the locks to their house. This is because the accused had become familiar with all of the complainant’s dogs which guard her house. The complainant and her husband are also disappointed that the accused has not apologised to them even though his family has.

The aggravating and mitigating features

14. In relation to the offending, the following are the aggravating features: (a) the serious breach by the accused of his employers trust, (b) this is not a case of one incident but four separate incidents of theft and burglary, (c) home invasion, and (d) the impact of the offending on the victims. The only feature that may be described as mitigating of this offending is that the complainant has recovered her ring. But this was because of the action by the police and not because of the accused voluntarily returning the ring to the complainant. I will, therefore, give little weight to this feature.
15. In relation to the accused as offender, there is no aggravating feature. But there are mitigating features in this regard. These are: (a) the relatively young age of the accused, (b) the apology by the accused’s family to the complainant and her husband, (c) the fact that the accused is a first time burglar, and (d) the accused’s plea of guilty to the charges at the earliest opportunity.

Discussion

16. This is not an uncommon case of theft and burglary in the sense that this offender comes from a broken up family. In this type of case, the offender’s parents separated and went their separate ways while the offender was very young. The offender as a young child would be left with other members of the family of his father or his mother. Usually, this will be the grandparents who are often poor. The child is thus born and left in circumstances he was not aware of and beyond his control. When he grows up, he is usually sent to school. However, the offender as a child often drops out of school at an early grade because his grandparents or his family cannot afford to continue his education. Because of his young age and low level of education, he cannot find employment. So he stays home and assists with family errands. Such a child is often at risk of being exposed to the influence of peer groups. The responsibility of providing a good and stable life for such a child is sometimes too much for some grandparents or families. The potential offender then starts to drift into a life of crime. It is at this point of his life that he comes into contact with the law. But the root of the problem does not lie with the law. It lies beyond the law. The problem is more a social problem than a legal problem. The Courts is really playing a full-back position after everything else has failed to stop the child from landing in a life of crime. What the Court has often done in the case of a young offender in this kind of situation is to try and turn such an offender away from a life of crime so that he can become a useful member of society. This is a crucial and not an easy task which needs the support of the probation service and any other counselling programmes that are available. Sometimes the attempt succeeds; at other times it has not. But this has not deterred the Court from trying.
17. Having regard to the aforesaid aggravating and mitigating features, I have decided to place the accused on probation for 15 months on the following special conditions. Firstly, he is to attend Church service every Sunday unless there is good reason for him not to do so. Secondly, the accused is to participate in the youth activities of his Church at Vaoala unless there is good reason which makes it impossible for him to participate in any such activity. And, thirdly, the accused is to perform 50 hours of community service as directed by probation service.
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CHIEF JUSTICE

Solicitor

Attorney-General’s Office, Apia, for prosecution