SUPREME COURT OF SAMOA
Police v Tevaga [2015] WSSC 196

Case name: 	Police v Tevaga	
		
Citation: 	[2015] WSSC 196	
		
Decision date: 	24 December 2015	
		
Parties: 	POLICE v ATONIO PINETUAOI TEVAGA male of Samalaeulu and Lano.	
		
Hearing date(s): 		
		
File number(s): 	S3593/15	
		
Jurisdiction: 	CRIMINAL 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	Convicted and sentenced to 12 months imprisonment	
		
Representation: 	F Lagaaia for prosecution
Accused in person 	
		
Catchwords: 	ordinary theft – theft in a special relationship – maximum penalty – aggravating features relating to the offending – breach of trust – impact of the offending – attitude of the accused – mitigating features – starting point for sentence	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.161 s.165 (b) s.165 (a).  s.162	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S3593/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

ATONIO PINETUAOI TEVAGA male of Samalaeulu and Lano.
Accused

Counsel:	
F Lagaia for prosecution
Accused in person

Sentence:	24 December 2015

S  E N  T  E  N  C  E
The charges
1. 	The accused Atonio Pinetuaoi Tevaga of Lano and Samalaeulu in Savaii stood trial on one charge of ordinary theft under s.161 of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment under s.165 (b) and one charge of theft in a special relationship under s.162 of the Act which carries a maximum penalty of 10 years under s.165 (a).  In my judgment delivered on 16 November 2015, I found the charge of ordinary theft under s.161 to have been proved in part in relation to some of the properties alleged to have been stolen by the accused but dismissed the charge of theft in a special relationship.  The accused now appears for sentence on the charge of ordinary theft as proved.
The offending 
2. 	On a Saturday night in April 2014, the complainant’s son and other boys of the village of Samalaeulu went for a ride in the complainant’s van.  On the following morning the van was found with its boot stuck on a pile of rocks near the boundary between Samalaeulu and the village of Mauga. The evidence given by the prosecution witnesses which I decided to accept is that only one big light, the door of the boot, and the rear windscreen of the boot of the van were damaged.  There was no damage to the front or the sides of the van.  Apart from the big light, the other lights of the van were also in good condition.
3. 	About two or three weeks later, the accused who is a mechanic drove the van from the complainant’s place at Samalaeulu to his place at Lano to repair the damage to the van.  After about three months, the complainant went to the accused’s place to see whether the repairs to the boot of his van had been completed.  He was shocked to find that the undamaged doors and the other undamaged parts of his van as well as the damaged boot had all been removed even though only the boot was damaged.  The complainant said he found his van to be only a ‘shell’ of a vehicle as the accused had removed many parts including undamaged parts.  He then gave $200 to the accused in order for the accused to carry out the repairs to his van.
4. 	Two months later, the complainant again visited the accused and found that no repairs had yet been done to his van.  He then told the accused that he wanted to use his van for White Sunday in October and paid $1,500 to the accused to expedite the repairs to his van.  However, after White Sunday no repairs had been done to the van.  Then one day the complainant’s wife went to the accused and asked the accused to return the missing parts of her husband’s van but the accused told her he had thrown away those parts except for the floor cover and to tell her husband to come and get the floor cover.
5. 	Then about a month after White Sunday, the complainant went back to the accused’s place.  He found that there were still no repairs done to his van and many parts were still missing. The complainant then had his van towed away after the doors were put back inside the van.  The parts that were still missing from the van were the stereo, the fuel pump valued at $465, two parking lights valued at $300 each, two sliding door rollers valued at $95 each, one floor cover valued at $150 and two body kits valued at $300 each. It was only after the accused was arrested and questioned by the police that he told the police that the missing parts of the complainant’s van were at his house at Lano.  The police then went to the accused’s house and recovered only the stereo, one body kit, the floor cover, one parking light, and the two sliding doors rollers.  Up to now, the fuel pump and one of the body kits are still missing.
6. 	The prosecution has charged the accused with the theft of the fuel pump, two parking lights, two sliding door rollers, two body kits, and one floor cover.  The accused is not charged with the theft of the stereo.  I found that the prosecution has proved beyond reasonable doubt the charge of theft in respect of the spare parts for which has been charged except for the floor cover.  I was not satisfied that the prosecution had proved beyond reasonable doubt the alleged theft of the floor cover because the accused had told the complainant’s wife to tell her husband to come and get the floor cover.  In other words, I was not satisfied that the accused had an intention to deprive the complainant permanently of the floor cover.
7. 	The total value of the missing parts of the complainant’s van which I found to have been proved by the prosecution as stolen by the accused was $1,855.
The complainant
8. 	The complainant is a 54 year old male of Samalaeulu.  He is a tattooist by profession and he needs his van for his work and for his family.  As a consequence of the accused’s actions, he was without his van for several months which made him sad, angry, frustrated, and mentally distressed.  The accused has also shown no sign of remorse towards the complainant and there has been no reconciliation.  Furthermore, because of the accused’s actions, it has cost the complainant about $10,000 to pay a second mechanic to fix his van.  This is on top of the $1,700 the complainant had paid to the accused.  However, I do not accept that the complainant has no prospect of being able to recover his money from the accused.  He may be able to recover his money by civil action. This will, however, cost the complainant more time and money.
9. 	The complainant’s family was also affected because they needed the van for some of their family chores.
The accused
10. 	The accused is a mechanic by profession and earns about $600 a week.  He is 42 years of age and is married with three children.  He is a first offender and the testimonials from the pastor of his church and the pulenuu of his village show that he had been a person of good character prior to the commission of this offence.
The aggravating features relating to the offending  
11. 	There are several aggravating features of this offending which are as follows:
(a)	Breach of trust
12. 	The accused as a mechanic took the complainant’s van to be repaired.  The complainant trusted and relied on him to repair his van.  However, for several months from April 2014 to October 2014 the accused did no repairs to the van.  Even after he was paid $200 and then $1,500 by the complainant, he still did no repairs to the complainant’s van.  Instead, he stole some undamaged parts of the complainant’s van.  This is a clear breach by the accused of the complainant’s trust in him.
(b)	Impact of the offending
13. 	The psychological and financial impact of the offending on the complainant is another aggravating feature relating to the offending.  The complainant became sad, angry, frustrated and distressed by the actions of the accused in not fixing his van for several months but dishonestly removing several undamaged parts of the van and kept them for himself.  In addition, as a result of the accused’s actions, the complainant has had to pay $10,000 to a second mechanic to fix his van.
14. 	Not only was the complainant a victim of the actions by the accused but so was his family who depended on the use of the van for travel and family chores.
(c)	Attitude of accused
15. 	The attitude of the accused to the complainant and to the complainant’s wife was one of arrogance which further hurt the feelings of the complainant and his wife.
(d)	Value of the stolen parts
16. 	The value of $1,855 of the undamaged parts of the complainant’s van stolen by the accused is also an aggravating feature of this offending.  Even though some of those parts were returned to the complainant, that was only after the police had arrested and questioned the accused.  As a result of the unauthorised removal by the accused of those parts from the complainant’s van, the complainant has had to pay more than necessary to a second mechanic to fix his van.  Up to now, the fuel pump and one of the body kits of the van have not been recovered from the accused.
The mitigating features relating to the accused as offender
17. 	The only mitigating feature relating to the accused as offender is his previous good character as shown from the testimonials from his church pastor and village pulenuu.  The prosecution has not shown whether the accused has any previous conviction.
Discussion 
18. 	In passing sentence, I am conscious that this is the first time this Court has had to pass sentence in this type of case.  So in a sense this is a test case.  I am also conscious of the apparent prevalence of this type of offending by mechanics around the country.  Having considered the aggravating features relating to the offending and the maximum penalty of 7 years imprisonment provided for this type of offence, I will take 15 months as the starting point for sentence.  I will deduct 3 months for previous good character.  That leaves 12 months.
The result
19. 	The accused is convicted and sentenced to 12 months imprisonment.
CHIEF JUSTICE