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Police v Tauese [2015] WSSC 109 (30 September 2015)

SUPREME COURT OF SAMOA
Police v Tauese [2015] WSSC 109

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2579/15- S2581/15

BETWEEN:

P O L I C E

Prosecution

A N D

UESI TAUESE male of Fusi, Saoluafata and Vaiusu-uta.

Accused

Counsel: L Sua-Mailo for prosecution

Accused in person

Sentence: 30 September 2015

S E N T E N C E

The charges

1. The accused Uesi Tauese aka Uesi Seilala is a 19 years old male of Fusi, Saoluafata, and Vaiusu-uta. He appears for sentence on one charge of thefts, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b); one charge of possession of narcotics, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment contrary to s.18; and one charge of escape from lawful custody, contrary to s.143 of the Crimes Act 2013, which carries a maximum penalty of 2 years imprisonment. To all three charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The prosecution’s summary of facts, admitted by the accused, shows that on 19 November 2014, the accused went to the Splendid company at Vaitele-uta to look for a job. The complainant who is the owner of the Splendid company could not give the accused a job but asked him to carry some boxes to the company’s warehouse. Whilst inside the warehouse, the accused stole an iphone – 5 touch screen which was lying on a box while the complainant was going to get a drink. The value of this iphone is $1,500. When the complainant returned to the warehouse, he realised that his iphone was missing. The complainant then reported the matter to the police. When the police looked for the accused, they found him in the bushes behind the compound of another company at Vaitele. The police recovered the iphone from the accused and returned it to the complainant.
3. The police then brought the accused to the Faleata police post. When they searched the accused, they found in one of his pockets a small dried marijuana branch estimated to yield one marijuana joint. The accused was then held at the Faleata police post to be interviewed. However, he escaped and the police found him at his village of Fusi, Saoluafata.

The accused

4. As it appears from the pre-sentence report, the accused is single. He left school at Year 11 and was employed by a relative who does elei designs. The accused told the probation service that he was living with his aunty at Vaiusu as he had been banished from his village of Fusi, Saoluafata, due to a brawl he was involved in with other youths of his village.
5. Police records show that the accused has previous convictions in 2010 for four counts of burglary and three counts of theft and one previous conviction in 2013 for theft. The pre-sentence report shows that he accused also has previous convictions on 28 July 2014 for burglary and theft.
6. In 2010, the accused was ordered to engage in the programmes conducted by the probation service and to perform 40 hours community work. In 2013, he was placed under probation for 12 months and ordered to perform 80 hours community work. In 2014, he was placed under supervision for 12 months and ordered to perform 50 hours community work. Probation and supervision do not appear to have worked for the accused.

The aggravating features relating to the offending

(a) Extent of the offending

7. The extent of the accused’s offending involves theft, possession of narcotics, and escaped from lawful custody. This is an aggravating feature relating to the offending.

(b) Value of stolen property

8. The value of the stolen iphone estimated at $1,500 is another aggravating feature relating to the offending.

(c) Seriousness of the offence

9. For the purposes of the starting point for sentence approach, the Court has regard to the aggravating and any mitigating features relating to the offending, not the offence. This defines the criminality of the offending, not the offence. One should take care about the use of terminology here in order to avoid confusion because what we are concerned with here is the inherent seriousness or criminality of the offending, not the seriousness of the offence. The distinction between what is the “offending” and what is an “offence” must not be overlooked. It should not be confused.

The aggravating features relating to the accused as offender

Previous convictions

10. The accused’s convictions for burglary and theft are an aggravating feature relating to the accused as offender.

The mitigating features relating to the accused as offender

Guilty plea

11. The accused’s guilty plea to the charges against him at the earliest opportunity is the only mitigating feature relating to the accused as offender.

Discussion

12. As already mentioned, probation and supervision have not worked for the accused in the past. He has continued to reoffend. This is also a clear sign of lack of remorse. A custodial sentence is now called for.
13. I will apply the totality to all these charges of theft, possession of narcotics, and escape from lawful custody. Having regard to the aggravating features relating to the offending, I will take 15 months as the starting point for sentence. I will add on 3 months for the aggravating feature relating to the accused as offender, namely, his previous convictions. That increases the starting point to 18 months. I will then deduct 20% or 3 months for the early guilty plea. That leaves 15 months.

The result

14. For the charge of theft, the accused is convicted and sentenced to 15 months imprisonment.
15. For the charge of possession of narcotics, the accused is convicted and sentenced to 6 weeks imprisonment.
16. For the charge of escape from lawful custody, the accused is convicted and sentenced to 3 months imprisonment.
17. All sentences are to be concurrent so that the end sentence is 15 months imprisonment. Any time that the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE