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Police v Faaleleiga [2024] WSSC 103 (7 October 2024)

IN THE SUPREME COURT OF SAMOA
Police v Faaleleiga [2024] WSSC 103 (7 October 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

SILAO FAALELEIGA, male of Nofoalii, Saanapu, Sapunaoa, Vaitele & Salailua.

Accused

Counsels: J Leung Wai for Prosecution
Accused appears in Person

Sentence: 7^th October 2024

ORAL SENTENCE

The Charges

1. Silao, you appear for sentence on three charges of burglary, three charges of theft, and possession of narcotics namely marijuana and a utensil.

The Offending

2. According to the Prosecution Summary of Facts dated 3^rd September 2024 which you have accepted, your first incident of burglary and theft for which you appear for sentence occurred on the 24^th June 2024. You had been with some of your friends and were then walking from Motootua Hospital where you had been with them towards the DMC Restaurant. It was between 4.00 and 5.00am of that morning that you found yourself in front of the DMC Restaurant, you walked to the back of the building and saw that a window behind the Pre-School room was open, you climbed up the wall, broke the window and then gained access into the DMC Restaurant. Once you were inside the restaurant, you went to the till and took cash out to a total amount of ST$500.00. You then left the restaurant through the same window through which you had climbed into the restaurant.
3. Your second burglary and theft was of the Besties Company at Savalalo. Between 9.00 and 10.00pm on Monday 8^th July this year, you broke through a small bathroom window at the back of the store and you entered the store. Inside that store, you stole 15 pairs of earrings valued at ST$225.00.
4. The third incident of burglary and theft was of the Cornwall Rooftop Café at Taufusi. Between 11.00pm and 12.00am on Tuesday, 9^th July 2024 you broke through the café’s kitchen window from outside. You removed the louvers to the café and entered it. Inside the café you went to the till, opened it and took ST$1,200.00 cash.
5. On Monday 22^nd July this year, a member of the public contacted police. You were at the Fugalei bus stop; when police came to the bus stop, they conducted a body search on you and they found on you 0.28grams of loose marijuana leaves. The police also found a glass pipe inside your right pocket.
6. The total value of the goods stolen by you was ST$1,925.00 during these three incidences.

The Background of the Accused

7. Silao, you are a 25 year old male of Nofoalii, Saanapu and Sapunaoa. You’ve also resided at Vaitele but have recently been living in Salailua. You told the Probation Service that you are now married. You were raised in Saanapu in your father’s family and are the youngest of eight children.
8. In your Pre-Sentence Report prepared in 2014 you told Probation Service you left school after Year 8. By 2014 both your parents had died. In that first Pre-Sentence Report in 2014, your aunty had said of you as a then 15 year old as follows: “Peitai o le lima tagovale lava o loo fai ma vaivaiga o Silao.”
9. You have a long and unhealthy prior conviction record. You were first convicted in 2015 for burglary and theft. Since then, you have been convicted of possession of narcotics, thefts, and further burglaries and thefts as well as escape.
10. When you committed this offending, you were on bail awaiting sentencing for robbery of a foreigner on Beach Road. You were scheduled to reappear before me on the 31^st January 2023 but did not appear. Instead, you breached bail and went and committed offending such as these for which you now appear for sentencing.

The Victim

11. There are three victims to your offending. These are the DMC Restaurant Motootua, Besties Company Savalalo and Cornwall Rooftop Café. In their Victim Impact Reports, the owners of Besties and Cornwall Café speak of their anxiety, feelings of depression and sleep loss due to your offending. For the Cornwall Café, they also incurred financial costs repairing the damage you had caused to their café as well as the cost of a new POS accounting system.

Aggravating Features of the Offending

12. The following are the aggravating features of your offending:
    • (i) multiple burglaries and thefts with multiple victims;
    • (ii) you committed all the offending whilst on bail pending sentence for the charge of robbery; and
    • (iii) the high prevalence of burglary and theft in the community together with the possession of narcotics and utensils.
13. There are no mitigating features in respect of your offending.

Aggravating Features in respect of the Offender

14. The aggravating factors for you as an offender are your numerous prior convictions for similar offending.

Mitigating Factors Offender

15. The only mitigating factor I take into account on sentencing is your early guilty plea. Although you express remorse, you did so concerning your mother and your own circumstances you find yourself in. You showed no remorse for your offending or the harm to the victims.

Discussion

16. Silao, I have read the many Pre-Sentence Reports (“PSR”) that have now been prepared by the Probation Service for your many matters that have come before the Courts in the past 10 years. In 2014, your aunty spoke of your dishonesty as a weakness of yours. The PSRs also often speak of you committing your offending after you have been with your friends drinking. In your PSR with this set of offending, you said that that was the case when you burgled and stole from DMC Restaurant.
17. Burglary and theft in the community is very prevalent. The courts have often voiced concerns over the prevalence of this type of offending (see for example: Police v Sula Siaosi aka Joe Siaosi (Unreported) 02/08/2024 per Nelson J; Police v Ulisone [2024] WSSC 32; Police v Seumanutafa [2020] WSSC 52). Burglary and theft from businesses in and around Apia has also become prolific, with many businesses burgled on multiple occasions.
18. The prevalence of burglaries and theft in the community Silao is because of men like you. In this case, you have prior convictions for similar offending; you also committed these burglaries and thefts while you were in breach of bail failing to re-appear before this Court for sentencing for robbery. This shows that despite your arrest by police and being before the Court, as well as previously having been punished by the courts for the same offending, you have not at all been deterred from re-offending in the same way.
19. In sentencing you today Silao, it is with purpose of denouncing your conduct and deterring you and others from committing this or similar offending as well as to protect the community from you. On the burglary and theft charges, you will be sentenced on a totality basis; on the possession of narcotics and utensils charge, you will be sentenced for that offending separately.
20. In terms of the burglary and theft charges on a totality basis, the appropriate start point for sentence is three years’ imprisonment. You committed multiple burglaries and thefts while you had a pending robbery charge for which you failed to appear. For your prior conviction I uplift that by 1 year. For your early guilty plea, I deduct 1 year leaving an end sentence of 3 years imprisonment.
21. For the possession of narcotics and utensil charge on a totality basis, the appropriate start point is 12 months’ imprisonment given the aggravating factors of your offending. For your prior conviction, I uplift that by 3 months and then deduct 4 months leaving an end sentence of 11 months’ imprisonment.
22. The narcotics offending is different in nature to the burglary and theft offending. In accordance with section 55 of the Sentencing Act 2016, the sentence for narcotics and utensils will be cumulative to the sentences for burglaries and thefts.

Result

23. Accordingly, you are convicted and sentenced as follows on the charges in the Charging Document dated 26^th August 2024:
    • Burglary charge #5 on a totality basis, you are convicted and sentenced to 3 years’ imprisonment less time remanded in custody;
    • All remaining burglary charges, 15 months’ imprisonment concurrent to charge #5;
    • Theft charge #6 in the charging document dated 26/08/24, 9 months’ imprisonment, concurrent to charge #5;
    • All remaining theft charges, 6 months’ imprisonment, concurrent to charge #5;
    • Possession of narcotics and utensils charges #7 and 8, on both charges, 11 months’ imprisonment each charge. The possession of narcotics and utensils charges are to be served concurrently to each other but is cumulative to the 3 year sentence for charge #5.
24. Your end sentence Silao is therefore 3 years and 11 months’ imprisonment, less time remanded in custody.
25. Silao, these sentences are imposed by the court given your prior conviction record and your behaviour. It is important Silao that if you do not wish to go to prison, please change your ways because if you continue to commit burglaries and thefts, judges have no option but to send you to prison, and no judge wants to do that Silao. All judges in the court wish for you to change your ways and not to see you back.
    

JUSTICE CLARKE