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Police v Sa'u [2016] WSSC 131 (13 June 2016)

SUPREME COURT OF SAMOA
Police v Sa’u [2016] WSSC 131

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SIATUA UPOLU SA’U male of Magiagi
Accused

Counsel:
F.Ioane for Prosecution
Accused in person

Sentence: 13 June 2016

S E N T E N C E

The charge

1. The accused is 18 years old from Magiagi. He appears for sentence on one charge of theft pursuant to ss 161 and 165(b) and 33 Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. He pleaded guilty to the charges on 11 April 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 12 March 2016, the victim was at RSA night club with her family. She met the accused and co-defendants there. When the victim went to dance on the dance floor, one of the co-defendants took her cell phone from her handbag and put it into his pocket. The accused then took the cell phone from the co-defendant’s pocket and left the RSA. At around midnight, the victim discovered her cell phone missing. When she called her cell phone from another phone, the accused answered her cell phone and said he was at Fasitoo. The victim and the accused’s cousin then went to Magiagi and found the accused and co-defendants. One of the boys with the accused returned the cell phone back to the victim.
4. The total value of the cell phone stolen is AUD$1,025.00 (equivalent to SAT$1981.97.00.

The accused

5. As shown in the pre-sentence report, the accused is 18 years old. He is the sixth of ten children and was raised by his parents in Iva Savaii. He finished schooling at Year 11 because of financial constraints and relocated to his maternal aunty in Magiagi to find employment. He found work for Nonu Enterprises earning $100.00 per week. He had been working there until the offending.
6. The Court had referred the accused to attend the 6 weeks Alcohol and Drugs programme. The accused said that he was unable to attend as he has been in custody and he was informed by corrections that there was no vehicle to bring him to the programme.
7. He has no previous convictions.

The victim

8. There is no victim impact report. The Summary of facts says that the victim is 37 years old and was here from Sydney, Australia on a holiday.
9. It is clear from the pre-sentence report that there has been no reconciliation as the accused has been in custody. The cell phone was returned to the victim.

Aggravating features of the offending

10. Prosecution submits that an aggravating feature is that the offending was premeditated. I agree as the accused and his co-defendants waited for the victim to go onto the dance floor.
11. Another aggravating feature is the significant value of the stolen item being SAT$1981.97.

Mitigating Factors

12. A mitigating factor of the offending is that the cell phone was returned that same night.
13. It is a mitigating factor personal to the accused that he pleaded guilty to the charge at the earliest opportunity.

Discussion

14. Probation in its pre sentence report has recommended a community based sentence of supervision and community work with a special condition to attend the 6 weeks programme for alcohol and drugs.
15. Prosecution submits that a sentence of supervision would be appropriate for the accused.
16. Before imposing sentence, I note that this is yet another case in which the RSA night club is mentioned with an accused who is 18 years old being inside the RSA. It is an offence to serve him alcohol. Prosecution is again asked to inform the Liquor Control Board.
17. Having regard to the aggravating features and mitigating features. I have decided to impose a non-custodial sentence. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation an reintegration of the offender. Section 16 of the same Act states that the Court may impose such special condition or conditions related to the rehabilitation or integration of an offender as the Court thinks necessary.
18. I am convinced that the accused should be given an opportunity to attend rehabilitation programmes for alcohol counselling. His offending took place while drinking alcohol. While this is no excuse, this offender was otherwise gainfully employed. He is also young and should be given some guidance around alcohol consumption. He will be given an opportunity to prove to the Court that this is the last time he commits this type of offence. He has been in custody since his offending and has now experienced the type of punishment imposed if he should reoffend.

Sentence

19. For one charge of theft, the accused is convicted and sentenced to 6 months supervision with the special condition that he attend Toe Afua se Taeao Fou programme, or other alcohol counselling programme as directed by probation.

Addendum

20. This is the second case which I have dealt with whereby the accused in custody is not able to comply with a court order due to obstacles presented by the Ministry of Corrections. The Court will now move to address this issue.
    

JUSTICE TUALA-WARREN