IN THE SUPREME COURT OF SAMOA
Police v Su’a [2023] WSSC 77 (20 November 2023)

Case name: 	Police v Su’a	
		
Citation: 	[2023] WSSC 77	
		
Decision date: 	20 November 2023	
		
Parties: 	POLICE (Informant) v KAPELI AKERISE SU’A, male of Lealaalii Faleasiu & Lalovaea	
		
Hearing date(s): 		
		
File number(s): 	S954/2023 #6	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea’i A. Roma	
		
On appeal from:		
		
Order:	You are convicted of both charges of burglary and theft and sentenced to 3 months imprisonment followed by 12 months supervision.	
		
Representation: 	T. Fesili for Prosecution
Defendant in Person	
		
Catchwords: 	Burglary – theft.	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss. 33; 161; 165(b).	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

KAPELI AKERISE SU’A male of Lealaalii Faleasiu and Lalovaea..

Defendant

Counsel:	T. Fesili for the Prosecution
Defendant in person

Sentence:	20 November 2023

SENTENCE
1. 	You appear this morning for sentence on 2 charges, one of burglary which attracts a maximum penalty of 10 years imprisonment, and one of theft the maximum penalty for which is 7 years imprisonment. You had pleaded guilty to the burglary charge and denied theft but on the 24th October 2023 when the hearing was to commence, you vacated your not guilty plea.  
2. 	According to the prosecution summary, the offending occurred on the 7th March 2023 at Leulumoega-tuai around 11am.  With a co-accused named Junior Mauola you went to the victim’s house to pick up his pay.  The victim returned from a relative’s house and saw you both sitting inside the kitchen at the back of her house.  She informed your co accused that she was not able to pay him then as her children has not come to see her.  She managed to give your co accused bus fare and you then appeared to have left to catch the bus.
3. 	But whilst the victim was doing chores inside the kitchen you returned to the house, unlocked the front door and entered without authority.  You then stole a 32 inch flat screen TV and remote, a digital box and remote, and a chargeable torch.  The total value for all items is $1,450.00.  The victim reported the matter to police.
4. 	The police summary also states that you both attempted to sell the items which police later recovered and returned to the victim.  You were apprehended by police on the 13th March 2023.
5. 	In the pre-sentence report you admit having gone onto the victim’s property but say that you went to get a taxi whilst your co accused got the TV.  You also say that on instruction of your co accused you both proceeded to sell the TV to a man at Faleasiu for $40.00, and used the money to buy more alcohol.   
6. 	The victim is a 58 year old unemployed female of Leulumoega-tuai.  She confirms in the VIR that your father had come to apologise. She also says that as a result of the incident they have had to put up a fence to prevent trespasses from coming onto the property. 
7. 	In respect of the aggravating factors, I consider the prevalence of the offending; the value of items stolen; and the impact of the offending including insecurity caused to the victim and general public from incidents of break ins and home invasion. 
8. 	In mitigation of penalty I take into account your guilty plea to the charge; the reconciliation confirmed by the victim impact report; and your personal circumstances.  
9. 	From the material before me, you are 23 years of age and a father of 2 young children.  Through your employment at Alfa Security Group as a guard, you also provide for your family.  The testimonials by your sui o le nuu, your Bishop Taouma and also your employer speak highly of you.
10. 	The police summary says that you are a first offender.  But when the matter was last called it was clear to the Court that you have appeared previously in 2019 on a charge of endangering of transport.  Probation cannot confirm what the sentence for that matter was but you told the Court that you were handed a sentence of supervision.  The pre-sentence report further mentions that in 2016, you were discharged without conviction in by the Youth Court of common assault.  So clearly this is not your first time or second time appearing in the Court. 
11. 	The prevalence of burglary and theft offending continues despite the court imposing deterrent sentences of imprisonment. The protection and security of the community and public continue to be important considerations.
12. 	In your case prosecution recommend a custodial sentence with a start point of 18 months.  I have looked at the cases they cite in support.
13. 	As I told you last Friday when this matter was last called, I had considered a longer term of supervision.  But the Court cannot ignore the fact that you have previously appeared though for unrelated offences, and were granted the Court’s leniency.  You cannot continue on like that.  And I accept that imprisonment is now the appropriate penalty.
14. 	I adopt as starting point 18 months as recommended by prosecution.  I make the following deductions.  For the fact that the items stolen were recovered I deduct 3 months.  For the apology rendered on your behalf by your father I deduct 3 months.  The remainder after those deductions is 12 months. I make a final deduction of 4 months for your guilty pleas to the charges, leaving a term of 8 months.
15. 	But instead of serving the whole 8 months, I have decided that you will serve only 3 months imprisonment to be followed by 12 months supervision. 
16. 	You are convicted of both charges of burglary and theft and sentenced to 3 months imprisonment followed by 12 months supervision. 
JUSTICE ROMA