SUPREME COURT OF SAMOA
Police v Maualaivao [2015] WSSC 47

Case name: 	Police v Maualaivao	
		
Citation: 	[2015] WSSC 47	
		
Decision date: 	5 May 2015	
		
Parties: 	POLICE (prosecution) v VAINI MAUALAIVAO aka VAINI VASEGA (accused)	
		
Hearing date(s): 		
		
File number(s): 	S957/15	
		
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 on both the burglary and theft charges.  Both sentences to be concurrent.
-	The time that the accused has already spent in custody pending the outcome of this matter is to be deducted from that sentence.

Representation: 	P Chang for prosecution
Accused in person	
		
Catchwords: 	Burglary – theft – maximum penalty – early guilty plea – aggravating and mitigating features – intention to burgle – home invasion – value of stolen properties - sentence	
		
Words and phrases:	mens rea 	
		
Legislation cited:	Crimes Act 2013,s.174(1) s.161, s.165(b).	
		
Cases cited:	R v Mako [2000] 2 NZLR 170	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S957/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

VAINI MAUALAIVAO aka VAINI VASEGA male of Malie.
Accused

Counsel:	
P Chang for prosecution
Accused in person

Sentence:	5 May 2015
S  E N  T  E  N  C  E
The charges
1. 	The accused appears for sentence on one charge of burglary, contrary to s.174(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty 7years imprisonment under s.165(b). To both charges, the accused pleaded guilty at the earliest opportunity.
Offending 
2. 	On Monday 2 March 2015 around midnight, the accused was walking along the road at Afega when he saw that there was no one inside the open Samoan fale of the complainant’s family. At that time, the accused who is from Malie was staying with a friend at the neighboring village of Tuanai.
3. 	The accused then entered the Samoan fale of the complainant’s family and stole the complainant’s blue bag which contained the following items: (a) one Samsung cellphone valued at $400, (b) one pair of reading glasses valued at $20, (c) one Samsung galaxy cellphone valued at US$600, (d) one Apple laptop valued at US$1200, (e) one Bose speaker valued at US$130, (f) two English bibles valued  at US$12, (g) one driver’s licence valued at US$25, and (h) cash of $100. The total value of these items in Samoan currency, including the $100 in cash, was $5,289.39. 
The accused
4. 	The accused is from the village of Malie but was staying with a friend at Tuanai at the time of this offending. He is single and unemployed. Given that his date of birth was 16 January 1995, as shown from his pre-sentence report dated 31 July 2013 for a previous offending, he would be 20 years at the time of this offending. 
5. 	As it also appears from the accused’s pre-sentence report for this matter, the accused was convicted in the Youth Court in August 2013 for the same type of offending as it is in this case and was given a suspended sentence of 6 months and ordered to perform 50 hours of community work. That suspended sentence of 6 months must have expired in February 2015 but the accused has re-offended on 2 March 2015. 
6. 	It also appears from the accused’s pre-sentence report for this matter that the information he gave the probation service for the preparation of his present pre-sentence report regarding his personal circumstances are very different from the information he gave the probation service in 2013 in the presence of his father regarding his personal circumstances for the preparation of his 2013 pre-sentence report. This is a sign that the accused was not being truthful with the probation service.
Aggravating features relating to the offending
(a)	Home invasion at night 
7. 	This offending involved the burglary of the home of the complainant’s family around midnight. This is an aggravating feature relating to the offending. 
(b)	Value of the stolen properties.
8. 	The total value of the stolen properties was $5,289.39 which is a substantial amount by Samoan standards. This is also an aggravating feature relating to the offending. 
(c)	 Intention to burgle the complainant’s house
9. 	 I do not agree with the suggestion by the prosecution that the intention of the accused in this case to burgle the complainant’s house is an aggravating feature relating to the offending. Such an intention would be the mens rea required for the offence of burglary but not an aggravating feature relating to the offending.
10. 	An aggravating feature relating to the offending is a feature that increases the seriousness or severity of the offending. An intention to burgle a house is the mental element of the offence of burglary but not an aggravating feature that increases the seriousness or severity of the offending. However, there are cases where the planned, deliberate, and premeditated nature of a burglary is an aggravating feature relating to the offending. This  offending which occurred when the accused walked past on the road and saw no one in the Samoan fale of the complainant’s family is more in the nature of a ‘spontaneous exploit’ and is not one of such cases.
11. 	In R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272, at [36]; the New Zealand Court of Appeal stated:
	“The degree of planning and preparation will reflect criminality.  Detailed activity over a sustained period indicating care and sophistication in organisation are hallmarks of serious criminals particularly criminal organisations.  Such conduct is plainly to be regarded more seriously than less premeditated or spontaneous exploits”
Aggravating feature relating to the accused as offender
12. 	I am also not able to accept the suggestion from the prosecution that the accused’s previous conviction for burglary and theft in August 2013 is an aggravating feature relating to the offending.  Previous convictions are an indicator of the offender’s character and may justify an uplift in the sentence in order to vindicate the principle of deterrence.  Previous convictions can also be an indicator of the risk of reoffending by the offender.  It follows that previous convictions are an aggravating feature relating to the offender rather than the offending.
13. 	The Court, however, must be cautious  about giving too high an uplift than it is justified for  previous convictions that it gives the impression that the accused is being punished again for  offences for which he has already being punished.  Deterrence rather than punishing the accused again for  offences  for which he has already being punished should be the justification for an uplift in the sentence  by reason of previous convictions.
Mitigating feature relating to the accused as offender
	Guilty plea
14. 	The only mitigating feature relating to the accused as offender is his guilty plea to the charges against him at the earliest convenience.
Discussion 
15. 	Having regard to the aggravating features relating to the offending, I wll take 15 months as the starting point for sentence.  I will add on 3 months for the previous conviction for burglary and theft in 2013.  That increases the starting point to 18 months.  I will then deduct 1/3 or 6 months for the early guilty plea.  That leaves 12 months.
Result 
16. 	The accused is sentenced to 12 months imprisonment on both the burglary and theft charges.  Both sentences to be concurrent.
17. 	The time that the accused has already spent in custody pending the outcome of this matter is to be deducted from that sentence.
Honourable Chief Justice