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Police v Apelu [2016] WSSC 43 (9 February 2016)

SUPREME COURT OF SAMOA
Police v Apelu [2016] WSSC 43

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FALANIKO APELU aka LUA of Vailoa, Palauli and Moataa.
Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 9 February 2016

S E N T E N C E

The charges

1. The accused Falaniko Apelu appears for sentence on one charge of burglary, contrary to s.174 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 of one year imprisonment under s.165(d). To the charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The accused is a 27 year old male of Moataa and Vailoa, Palauli. The victim is a 26 year old female of Faatoia. On 8 December 2015 around 7:00am in the morning, the accused entered the victim’s shop at Faatoia while the victim was fast asleep inside her shop. The accused then took a container with $100 coins in it that was placed on the counter. When the victim woke up because of the noise from someone closing the door, she noticed the accused rushing away from her shop and the container of coins that was on the counter was missing. The victim then saw the accused left in a taxi from the nearby taxi stand.
3. When the accused got inside the taxi, he told the taxi driver to drop him off at Sinamoga. In the meantime the victim walked to the taxi stand and asked the taxi drivers who were there if she can get the phone number of the taxi in which the accused had left and the name of the taxi driver. The victim then called the taxi in which the accused had left and asked the taxi driver to drive the accused back to her. The taxi then turned around from the Auto gas station at Matautu-uta. As the taxi was turning back, the accused threw the container of coins out of the window. When the taxi driver asked the accused as to what is it that he has thrown out, the accused replied he does not know and tried to get out of the taxi. The taxi driver then accelerated his taxi back to the taxi stand where the victim was waiting. When the accused was brought back to the taxi stand, the victim reported the matter to the police. The police could only recover $62 coins from the container that the accused threw away.

The accused

4. As shown from the pre-sentence report, the accused had grown up in his village of Gautavai in Savaii where he attended primary school. He then attended secondary school at Palauli College up to Year 12.
5. When the accused left secondary school, he stayed home and helped out his family with domestic chores. He then came to Upolu and stayed with his father’s relatives at Vaitele while working for a painting contractor in Apia. After two months, he returned to his family in Savaii. Later on in 2015 he returned to Upolu and stayed with his father’s relatives at Moataa. He committed this offence while working as a caretaker on a plantation.
6. On 30 March 2012, the accused was convicted and sentenced to 12 months community supervision and ordered to serve 50 hours of community service. On 26 April 2012, the accused was convicted and given a suspended sentence of 12 months.

Aggravating and mitigating features

7. This offence was committed inside a shop where the victim was sleeping. The shop is not a home simply because the accused was sleeping in the shop. Home invasion is therefore not an aggravating feature relating to the offending.
8. The seriousness of an offence is not an aggravating feature. One looks at the aggravating features and any mitigating features relating to an offending in order to determine the seriousness or gravity of the offending for the purpose of the starting point approach for sentencing. In other words the seriousness or gravity of an offending depends on the aggravating features and any mitigating features relating to the offending. The starting point for sentence is then based on the seriousness of the offending, that is to say, the gravity or degree of criminality of the offending.
9. There is nothing in the prosecution’s statement of facts or the pre-sentence report to show that the accused was under the influence of alcohol at the time of the offending. Therefore the influence of alcohol is not an aggravating feature.
10. The only aggravating feature relating to the offending in this case is the amount of money stolen by the accused which was $100.
11. In relation to the accused as offender, his previous convictions in 2012 are an aggravating feature relating to him as offender. Even though the previous convictions were for different types of offences, they show that rehabilitative sentences have not worked for this accused. The previous convictions also reflect the type of attitude the accused has towards the law.

Discussion

12. Having regard to the criminality of the offending, I will take 3 months as the starting point for sentence. I will increase the starting point for sentence by 3 weeks to take account of the previous convictions. That leaves 3 months and 3 weeks. I will then deduct 3 weeks or 25% for the early guilty plea. That leaves 3 months.

Result

13. The accused is convicted and sentenced to 3 months imprisonment on the charge of burglary and to 3 months imprisonment on the charge of theft. Both sentences to be concurrent.

CHIEF JUSTICE