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Police v Fareti [2017] WSSC 80 (10 April 2017)

THE SUPREME COURT OF SAMOA

Police v FARETI [2017] WSSC 80

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

EMAU FARETI male of Vailima and Satoalepai
Accused

Counsel:
F. Ioane for Prosecution
Defendant self-represented

Sentence: 10 April 2017

S E N T E N C E

1. The accused appears for sentencing on 1 charge of burglary contrary to section 174(1) of the Crimes Act 2013 (“the Act”) which carries a maximum penalty of ten (10) and 1 charge of theft contrary to section 161(1) and 165(d) of the Act which carries a maximum penalty of 2 years imprisonment.
2. The accused entered guilty pleas at the first available opportunity.

The Offending

3. According to the Summary of Facts accepted by the accused, on the 16^th February 2017, the complainant went to work. Sometime during the day, the accused went to the complainant’s house and removed two louvers from the window. The accused then went inside and stole:

One gold pearl necklace valued at $120.00;

One white pearl necklace valued at $80.00;

One blue necklace valued at $60.00;

Earrings valued at $150.00; and

Six bracelets valued at $80.00.

4. The total value of the properties stolen was $490.00.
5. The accused confirmed his prior conviction record of conviction on the 12^th December 2015 also for burglary and theft where a non-custodial sentence was imposed. He confirmed the Pre-Sentence Report that he breached his supervision conditions twice and on the second occasion, he was imprisoned for 6 weeks. These breaches do not appear on his prior conviction record.

The Accused

6. According to the Pre-Sentence Report (“PSR”), the accused is a 19 year old transgender male. He left school after year 10. Prior to this offending, the accused was living with parents at Vailima. His mother is employed as a baby sitter and his father a carpenter. He said that before his offending, he had been employed in a fashion business.
7. The accused’s PSR does not reflect well on the accused. Following his convictions in 2015, the PSR states:

“He is known to the Probation Service as he was placed on probation on 12^th November 2015...Ever since his release he has absconded from the probation service who have tried many times to visit his house but were told by his parents that they did not know where Emau was staying as he had wandered off with other transgender...”

8. The accused’s mother was interviewed as part of the PSR. She says that the accused’s main weakness is that he was “living a transient lifestyle and associating with other transgender.”

The Victim

9. The PSR states the victim as the accused’s uncle, contrary to the Summary of Facts which states the victim as a female. The Probation Service met with an uncle. I will proceed on the basis of the information relayed by the uncle in the PSR. The PSR says there has been no reconciliation but the items allegedly stolen have been recovered by Police.

Aggravating and Mitigating Factors

10. The aggravating factors are the offending involved the unlawful entry into a dwelling place, it was premeditated and the accused’s prior conviction for the same offence of burglary in 2015.
11. The mitigating factors in respect of the accused are his early guilty plea and young age.
    

Discussion

12. Prosecution seeks a custodial sentence with a start point of 12 months imprisonment with an uplift of 3 months for his previous conviction. The PSR states that “a custodial sentence is inevitable and is thus recommended.”
13. The sentencing of burglars was addressed by the His Honour Sapolu CJ in Police v Ajawas [2013] WSSC 49 where the Court adopted and applied the categories of burglary set out in Senior v Police (2000) 18 CRNZ 340. These categories are first time burglar, a recidivist burglar or a spree burglar. In Senior v Police (op. cit) at p. 5, the Court cited from the English tariff case of Brewster [1998] 1 Cr App R;220 where Lord Bingham&#1am CJ ved (at 225):

“Domestic burglary is, and always has been, regarded as a very serious offence. It maylve cerable loss to the victim. Even when it does not, not, the victim may lose possessions of p of particular value to him or her...

The loss of material possession is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.”

14. Prosecution has submitted that the accused is a recidivist offender. The recidivist burglar in terms of Senior is a burglar who has appeared on previous occasions with perhaps 20 or 30 previous convictions, most probably a professional burglar. In Police v Ajawas, His Honour Sapolu CJ in dealing with an accused appearing for sentence for a charge of burglary with prior convictions for attempted break and enter and burglary stated that the accused was not a recidivist burglar but is a repeat offender. Similarly, the accused cannot be said to be a recidivist burglar in the Senior sense, but he is a repeat burglar.
15. I however agree with prosecution and the probation service that a custodial sentence is warranted. In part, this is because the accused has demonstrated that he does not comply with or respond positively to community based sentences. A custodial sentence is also consistent with the sentencing approach of the Courts to similar cases of burglary.
16. Prosecution has referred to Police v Eti Alapae, an unreported Supreme Court decision to support its submission for 12 month start point for sentence. The Prosecution Sentencing Memorandum however does not state the value of the goods taken or the number of prior convictions for that accused. More relevantly appears to be Police v Willie Su’a (Unreported decision of Nelson J, 26 May 2014) involving an accused with a previous conviction and goods taken valued at $635.00 (sentence 3 months imprisonment and 12 months supervision) and Police v Kose Tatino Faalupega (6 months imprisonment), also referred to by Prosecution. I have also had regard to the sentencing decision of Her Honour Tuala-Warren J in Police v Mose [2016] WSSC 93 (6 June 2016) where 7 months imprisonment was imposed.
17. Your young age is relevant. I have also have had regard to the decision of her Honour Aitken J in Police v Mataio [2015] WSSC 119 (8 April 2015) also involving a 19 year old accused where a discount for young age was applied. Her Honour Aitken J said:

“I do have regard to the impact of a prison term on someone so young, and at the same time the need for rehabilitation to be a primary focus of sentencing young adult offenders.”

18. I accept what Her Honour Aitken J says in Mataio. The discount for the accused’s matter cannot however be as generous given the accused’s prior convictions and different circumstances to Mataio. However to Emau, I wish to say this to you. You are young transgender male. You have reached a cross-road in your life where you must change your ways because if you do not, you will live a life of imprisonment, and a wasted life. There are many leading and successful fafafines that can be an inspiration for you to change. Our transgender community has led the way in entertainment, dance, arts and fashion. They are some of the most creative and talented in our community. I hope you find inspiration to change from them.
19. I will adopt the totality in sentencing principles. For the charge of burglary, I adopt a start point of sentence of 8 months imprisonment. I uplift that by 2 months for your prior convictions. For your young age and as this sentence will also include a rehabilitation component, I will deduct 3 months. For your early guilty plea, I deduct 2 months. For the charge of theft, you will be sentenced to 2 months imprisonment.
    

The penalty

20. For the charge of burglary, you are convicted and sentenced to 5 months imprisonment less time remanded in custody.
21. For the charge of theft, you are convicted and sentenced to 2 months imprisonment. Both terms are to be served concurrently,
22. On your release from prison, you are to be under the supervision of the Probation Service for a period of six (6) months in accordance with the Standard Conditions of supervision and the following special conditions:

2. you reside at a place of residence acceptable to the Probation Service, preferably with your parents, if agreeable to them; and
   

(b) you attend any programs as directed by the Probation Service including if available, programs to assist you with finding employment.

JUSTICE LEIATAUALESA DARYL CLARKE