SUPREME COURT OF SAMOA
Police v Clay [2021] WSSC 75

Case name: 	Police v Clay	
		
Citation: 	[2021] WSSC 75	
		
Decision date: 	22 April 2021	
		
Parties: 	POLICE (Prosecution) AND FRANCIS CLAY male of Vaitele-fou and Letogo (Defendant)	
		
Hearing date(s): 		
		
File number(s): 	S1337/20, S1338/20, S1339/20, S1830/20, S1834/20, S1835/20	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:	 	
		
Order:		
		
Representation: 	L Faasii for the prosecution
Defendant unrepresented	
		
Catchwords: 	-	Burglary – theft – causing injury – drunkenness – unlawful entry and trespass – start point for sentence – sentence 	
		
Words and phrases:		
		
Legislation cited:	 	
		
Cases cited:	Police v Ajawas [2013] WSSC 49
Police v Sani [2021] WSSC 3
Police v Tupuola [2017] WSSC 60

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

FRANCIS CLAY male of Vaitele-fou and Letogo.
Defendant

Counsel:	
L Faasii for the prosecution 
Defendant unrepresented
Sentence:	22 April 2021

S E N T E N C E
1.	Unlike the previous defendant this defendant is just starting out on a life of crime which is regrettable. Because Francis you are wasting your life on this kind of behaviour. There are a number of matters against you I will need to deal with them individually.  I will follow the sequence and account given in the pre-sentence report which is based on what the defendant told the Probation Office.  I prefer that overall to the Police summary of facts. 
2.	The first lot of offending occurred on the 26 September 2020 after the defendant had been drinking at home with some friends consuming a large bottle of Rover Vodka. Rover Vodka is of course a well-known and potent alcoholic drink in respect of which the Court has commented on many occasions; for example, see Police v Tupuola [2017] WSSC 60 and Police v Sani [2021] WSSC 3. 
3.	On this occasion the defendant after the drinking session went to the house of the complainant the retired Pastor Rev. Popo Su’a around 10:00 p.m. in the evening probably looking for more alcohol or money to buy more alcohol. There was no one home he smashed open the glass door, entered and stole food and $235.00 which was lying on a table. None of this money was recovered by the Police and the Reverend also had to repair the damage to his door. As a result, the defendant was charged with burglary theft and wilful trespass, charges which he has pleaded guilty to. 
4.	The second lot of offending occurred on 02 December 2020 and also involved the property belonging to the retired Reverend. This involved the defendant and a number of co-defendant friends of his who again were drinking Rover Vodka and Taula Strong beer. The defendant and his friends ended up in front of the store of the Reverend where a Security guard was on duty. 
5.	At about 11:00 p.m. that night the defendant broke into the shop and stole a Bluetooth speaker valued at $400.00.  In addition to that the defendant and his co-defendant Peter Taua beat up the Security guard and gave him a bloody nose and a cut lower lip. As a result of this the defendant and his co-defendants were jointly charged with burglary theft and drunkenness and the defendant and Peter with the additional charge of causing injury to the Security guard. Charges which the defendant has also pleaded guilty to. 
6.	The final lot of offending relates to an incident that occurred on 31 October 2020.  Again this involved the defendant and the same co-defendant and after another drinking session the defendant and Peter headed to Papas Food Shack at Vaitele-fou. According to the documents before the court the defendant entered the house around 11:00 p.m. while the owner and his wife were asleep in their bedroom. He removed six (6) bunches of keys with sixty (60) keys on it, each key valued at $15.00 making a total value of the “fuifui ki” $900.00.  As a result of this incident the defendant has been charged with burglary theft and unlawful entry and he has pleaded guilty to these charges. 
7.	It is a good thing the defendant has pleaded guilty to the charges he will receive credit for that because it has saved the courts time and limited resources. But because he has many matters against him and also because his report from the Probation Office is not a favourable one, he was declared ineligible for any Drug and Alcohol Court Rehab Programs. Which is a pity because he seems to me to have an alcohol problem and he is in dire need of attending such programs in order to help him address future behaviour. 
8.	It also appears from the pre-sentence report that the defendants family no longer want him. Page two (2) of the report refers to a testimony from the defendants uncle who raised him.  The uncle told the Probation Office that despite their close relationship Francis is disobedient and rebellious and he has tried to advise him on many occasions but he does not listen. He disclosed that if Francis is released from custody he does not want him to stay with him and the family anymore as he will only bring trouble. 
9.	The result of all this is the court is left with little option for Francis but to try and impress on him the consequences of his conduct in the hope that it will teach him a lesson for the future and deter him from repeating this kind of behaviour. Your future Francis is in your own hands. But I can guarantee to you if you keep appearing on burglary and theft matters the terms of imprisonment will get longer and longer. You may end up like the previous offender Lauititi who is a permanent guest of the Tanumalala Prison Hotel. 
10.	In relation to the offences the defendant is facing they carry different maximums: for burglary it is ten (10) years, for theft one (1) to two (2) years depending on the value of the properties stolen. Assault and drunkenness carry lesser maximum imprisonment penalties.   Causing injury however is also a serious charge and carries a seven (7) year maximum penalty. 
11.	I propose to treat this defendant as a spree offender in the terms discussed by the court in Police v Ajawas [2013] WSSC 49. In other words, he is one who has committed a number of burglaries over a short period of time. In his case three (3) over approximately three (3) months. In the defendants case all these offences involve alcohol and the same group of bad friends. You need to choose better friends Francis.
12.	An appropriate start point for your collective burglaries of two (2) years is recommended by the Prosecution but I think that is too high. Nine (9) months considering the various circumstances is more applicable. From that nine (9) months need to be deducted mitigating factors and in your case your guilty plea is in your favour. Because your background is not favourable in accordance with the pre-sentence report and I decline to treat you as a first offender because you have many matters against you. Usual deduction for your guilty plea is one-quarter (¼) of the sentence but for your case I will deduct one-third namely three (3) months, leaves a balance of six (6) months in prison.  
13.	For all your burglary offences, convicted and sentenced to six (6) months in prison on each charge, terms concurrent.
14.	The theft charges against you I again approach your case on a totality of sentencing basis, convicted and sentenced to three (3) months each charge, terms concurrent. 
15.	On the charge of drunkenness convicted and sentenced to two (2) months, concurrent term.
16.	And on the charge of unlawful entry and trespass six (6) months each charge, concurrent terms. 
17.	Brings me now to the last charge which is the most serious charge against you of causing injuries to the Security guard when you robbed Reverend Su’as premises the second time. There is some incompatibility between the Police summary of facts and the defendants account of when this occurred and I will accordingly amend the charge as necessary to conform to the defendants account of events namely that this occurred on 02 December 2020 when he robbed the Reverend for the second time. This is when you and Peter beat up the Security guard.
18.	The maximum penalty for this offence is seven (7) years in prison. And since the offence was committed in the course of the commission of another crime and in order to facilitate that crime the start point must reflect these aggravating factors. 
19.	Security guards must be protected by the courts and the message to offenders is that if you beat up a guard in the course of a robbery you have gone from robbery to aggravated robbery which is a more serious kind of offence. A start point of three (3) to four (4) years is appropriate but for your case I will use the use lower end of the scale namely three (3) years in prison. 
20.	From that I deduct one (1) year for your guilty plea because that has saved the courts time and resources, leaves two (2) years in prison. 
21.	On the charge of actual bodily harm convicted and sentenced to two (2) years in prison. And that is to be served concurrent to your terms for the other offences.
22.	There is a last thing I need to tell you Francis so listen carefully because it affects your sentence. Your co-defendants have pleaded not guilty to the charges against them. If you give evidence against them at their trial that can earn you a further discount from your sentence. In the event of that occurring you will need to write a letter to the Police copied to the Court to ask that you be brought back to me and I will consider what further discount from your sentence is appropriate because of your testimony against your co-defendants. 
23.	E le fa’apea la e fa’amalosia e le Fa'amasinoga e te alu e fai sau molimau e fa’asaga i tama ia. Ae a e filifili e fai sau molimau, valaau oe e le Ofisa o Leoleo e fai sau molimau e tatau ona e toe tusi mai e toe aumai oe i luma o a’u ona toe avatu lea o seisi fa’amama avega i le fa’asalaga lea e fa’asaga i lau susuga. Ua e malamalama? (Defendant: fa’afetai i lau afioga). E taua le tulaga lena aua e le’i faia le fa’amasinoga a tama ia, masalo o se taimi o le tausaga nei e fa’atino ai lena tulaga. Ae mo le asō e lua (2) tausaga le aofai o le fa’aiuga lea ua fa’ata’atia atu, ae tatau ona toese mai le lua (2) tausaga lena le taimi lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o le mataupu lenei. Ua e malamalama Francis? (Defendant: O lea lava). 
 
JUSTICE NELSON