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Police v Niko [2015] WSSC 230 (27 April 2015)

IN THE SUPREME COURT OF SAMOA
Police v Niko [2015] WSSC 230

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TUAEFU NIKO, male of Faleula.
Defendant

Counsel: L Sio and F Ioane for prosecution
Defendant unrepresented

Sentence: 27 April 2015

SENTENCE

1. The defendant has pleaded guilty to two charges. Firstly information S4418/14 of obtaining building materials by deception from a local hardware company on 22 November 2014. The second is stealing from the complainant in this matter Fili Soli of Vaimoso building materials to the value of almost $1,000.00 on 14 November 2014. At the time of these offences the defendant was hired by Soli as the master builder for their house at Vaimoso.
2. The police summary of facts which the defendant admitted at a previous calling says on 14 November 2014 the defendant and Mr Soli went to the hardware company to place an order for construction materials. Soli then left the defendant to complete the order. Defendant requested a discount from the hardware company. This was granted and an adjusted invoice was issued. The adjusted invoice automatically replaced the first invoice. The defendant then ordered additional building materials to a total value of $965.15 and this was added to Mr Solis order. However these materials were not used for Mr Solis house but were instead delivered to the defendants house at Faleula where it was used in the construction of a house belonging to the defendant. The building materials comprised the matters addressed by the charge of theft that the defendant has pleaded guilty to.
3. On the 22 November 2014 the defendant returned to the hardware company and falsely represented to the company that a further order was required for Mr Soli. Based on this misrepresentation the defendant obtained from the hardware company a consignment of timber and roofing iron to a total value of $4,969.50. Again these materials were not delivered to Vaimoso but were delivered to Faleula where the defendant used it in his own building. These materials comprise the second of the charges against the defendant that the defendant pleaded guilty to of obtaining by deception.
4. It appears that while the goods belonging to the hardware company have been recovered the victim impact report shows the company incurred substantial time and costs in tracking down the materials. It also appears from what I have read the defendant has not made an apology or any form of restitution of those costs to the hardware company. There was an apology tendered to Mr Soli by the defendant but this has been rejected by Mr Soli for the reasons given in the supplementary report of the probation office filed in this matter. The defendant is well aware of the reasons why this apology was rejected.
5. The defendant is no stranger to this sort of conduct. He has a previous conviction record including one for this kind of offending. It is however an old conviction and I do not propose to upgrade his penalty because of it. But it is evidence the defendant has not learnt his lesson from his first brush with the law and has failed to make use of the opportunity the court gave him on that occasion.
6. The scale of your offending plus the calculated pre-meditated nature of it and the fact that it involves a breach of trust and a degree of deception means a jail term is unavoidable. The level of your criminality was high and the message to you and to master builders who engage in these sorts of projects in our community is you cannot abuse your position in the way that you did.
7. The maximum penalty for both these offences is 7 years in prison. In the circumstances sentence should start at 4 years. From that start point Tuaefu you are entitled to certain deductions which I will now make for you. Firstly for your guilty plea a one quarter of term deduction because it has saved the courts time and limited resources, leaves a balance of 3 years in prison. Your pre-sentence report speaks well of your service to your aiga and to your nuu as reinforced by a reference from your pulenuu. You are however not a first offender as noted. A deduction of 3 months will apply for these matters leaves a balance of 33 months in prison. Your co-operation with the police led to the recovery of the materials for one of your two victims namely the hardware company. To reflect that I will deduct a further 3 months from your sentence, leaves 30 months.
8. No other deductions can be made from your sentence. On each charge convicted and sentenced to 2½ years in prison but terms to be concurrent. Remand in custody time awaiting sentence to be deducted.
   

JUSTICE NELSON