IN THE YOUTH COURT OF SAMOA
Police v E.F [2014] WSYC 6

Case name: 	Police v E.F	
		
Citation: 	[2014] WSYC 6	
		
Decision date: 	12 November 2014	
		
Parties: 	Police (prosecution) and E.F male of Vailima (young offender)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Youth Court of Samoa, Mulinuu	
		
Judge(s): 	Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:		
		
Order:	Convicted and sentenced to 12 months supervision with additional conditions:
•	To complete 60 hours of community work; and 
•	To stay away from Vaiala Beach School. 	
		
Representation: 	Brigitta Lo Tam-Fa’afita for the Prosecution
Young Offender Unrepresented	
		
Catchwords: 	Burglary – theft – village penalty imposed – rehabilitation as opposed to imprisonment sentence – 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s 174, s 161, s 165(d),  	
	Young Offenders Act 2007 ss 15-16, 	
Cases cited:	Police v John Magele & Paul Nielsen [3 October 2013]	
		
Summary of decision:		

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

E.F, male of Vailima.
Young Offender

Counsel:	
Brigitta Lo Tam-Fa’afita for the Prosecution
Young Offender Unrepresented

Decision:	12 November 2014
SENTENCE BY DCJ TUALA-WARREN
The charges:
1. 	E.F, you are sentenced today in the Youth Court on three charges, two charges of burglary pursuant to s 174 Crimes Act 2013 and one charge of theft pursuant to ss161 and 165(d) Crimes Act 2013.
2. 	These charges stem from two separate incidents, one dated 26 August 2015 (burglary YCT54/15 and theft YCT53/15) and the other dated 31 August 2015 ( Burglary D2272/15).
3. 	 You pleaded guilty to all three charges on 1 Oct 2015. The maximum penalty for burglary is 10 years imprisonment, and for theft is one year imprisonment.
4. 	You are in Youth Court because you are 15 years old. 
Facts:
5. 	On Wednesday 26 August 2015 sometime after 3.00pm, you went to Vaiala Beach School and entered the victim’s classroom.  The school was unoccupied.  You took one Olympus camera valued at NZD$350.00 from the victim’s desk.
6. 	The victim is 26 years old from New Zealand and working as a teacher at Vaiala Beach School.  She also lives on the premises.
7. 	On Monday 31 August 2015, between 4.30pm and 5.00pm, you again went back to the school when it was unoccupied and went inside.   You were caught inside the classroom behind the door by the victim and her husband who had returned to the classroom to fix the victim’s computer.
Victim:
8. 	The victim says in the Victim Impact Report that she was very frightened and shaken as a result of finding you behind the door of her classroom.  She also says that after the offending she was afraid for her children who are left at home when she travels to New Zealand and she was afraid of being in her classroom.
9. 	The digital camera that you had took contained photographs which had sentimental value to the victim as they were photographs of a terminally-ill family member.  You deleted those photographs. This is heart breaking for the victim.  This camera was recovered and returned as a result of Police investigations.
10. 	The Victim Impact Report says that you and your sister apologised to the victim.  Her fears have been allayed by this apology and she says that she is no longer uncomfortable in her surroundings.  She says the meeting with you and your sister was healing for her and she was able to tell you how your actions made her feel and about the importance of the deleted photographs.
Pre-Sentence Report:
11. 	The pre-sentence meeting took place at Vaiala Beach School where the offending occurred and where the victim lives.
12. 	You and your father were present as well as the victim and the School Principal Lorraine Williams.
13. 	The report says that your father apologised for your actions during this meeting.  Both the victim and the School Principal have accepted your apology, however they do not want you on or near school grounds again. 
14. 	You left school in March 2015 when you were in Year 10 because you were caught smoking.  The victim has stressed the importance of you going back to school.  Her concern is that you were not in school when you offended.  Boredom and too much idle time on your hands would have no doubt played a significant role in causing you to offend.  
15. 	This is a legitimate concern shared by the Court.  Idle time will lead young people to get into trouble. 
16. 	The School Principal confirmed that your family was fined $200 by the village because of what you did. 
17. 	After the pre-sentence meeting, the victim was said to be happy and confident as you have assured her that you will be a caring neighbour and one who will be vigilant in guarding the victim’s safety. 
Legal Principles:
18. 	Of paramount importance in dealing with young offenders in the Young Offenders Act 2007 and the Convention on the Rights of the Child.
Young Offenders Act 2007 (YOA)
19. 	The YOA provides a criminal justice system for young persons and their treatment by the Courts.  The YOA promotes rehabilitation of young offenders and imprisonment as a last resort.  The Court must explore firstly whether any reasonable alternatives to imprisonment exist in a particular case.
20. 	Pre-sentence meetings under YOA are instrumental in exploring whether there are reasonable alternatives where a young person has acknowledged committing an offence.
21. 	The principles to be considered at such meetings include:
•	The accountability by the  young person for the wrong that has been done;
•	The rehabilitation of the young person;
•	The involvement by the young person’s family, village and church;
•	The protection of the community;
•	The acknowledgment of the views of the victim and restoring the position of the victim; and
•	Putting in place a plan for rehabilitation of the young person that fosters his/her sense of responsibility and promotes his/her self-esteem, cultural awareness and understanding.
22. 	The YOA allows the Court to proceed to sentence under either section 15 or section 16. Under section 15, the Court can without entering a conviction, order the young offender to carry out his or her obligations under a pre-sentence agreement. In essence, once a young offender completes his or her obligations, he or she can be discharged without conviction.
23. 	Under section 16, where the Court has determined to convict a young offender, it can proceed to do so and sentence that young offender by imposing a fine, community work, supervision or imprisonment as a last resort. 
Convention of the Rights of the Child (CRC)
24. 	The CRC promotes integration of a child offender back into society.
25. 	Before I discuss the appropriate sentence, it is important to note that it will only be in appropriate circumstances after weighing up all the relevant considerations and principles, that the Court will impose a section 15 YOA sentence.  That section essentially means a discharge without conviction for a young offender who has satisfied all conditions imposed by the Court within six months.
The Young Offender:
26. 	I do not find any mitigating features of this particular offending.
27. 	I find it aggravating that you went back twice to the school and to the victim’s classroom.  The first time you took the camera, a few days later you went back with a knife to break in.  Fortunately you were caught but you had used the knife to break in.
28. 	The fact that you went back twice indicates pre-meditation on your part.  It took some degree of planning. You had the foresight to take a knife to make it easy to break in.   I find this fact aggravating.
29. 	In effect, you invaded the victim’s home.  She lives on the premises.  She is from New Zealand and did feel frightened by this invasion.
30. 	This is your first offence.  Your first offender status is a neutral feature given your age. At 15 years old, you are too young to be in any Court for any offending.
31. 	I find the following mitigating features personal to you.
32. 	You age is a mitigating factor which I take into account and one which has significant bearing on this sentence.
33. 	Your apology to the victim before the pre-sentence meeting was healing for her and restored her somewhat to the position she was in before the offending.  This includes the reconciliation at the pre-sentence meeting. 
34. 	Your family has paid a penalty to the village.
35. 	Your early guilty plea is also to your credit.  It shows that you have accepted responsibility for your actions.
Sentencing:
36. 	Probation has recommended that you be sentenced under s 15 YOA, i.e. impose some conditions for you to satisfy within six months.
37. 	A section 15 YOA sentence is inappropriate in this case.  Your offending shows a level of planning on your part.  Having gotten away with your offending on the first occasion, your confidence increased and you returned the second time with a knife. This is extremely concerning and stronger deterrence is needed here.
38. 	Prosecution has submitted that the Youth Court of Samoa has seen a considerable number of burglary offences presented for Prosecution, and that the trend is young male defendants make up the population of defendants who appear before the Courts on these types of offence.
39. 	Whilst no statistics have been provided to support this claim, the Court can confirm that this is the case.  Statistics would be a helpful exercise to gauge the real extent of the problem that we are dealing with. 
40. 	Prosecution submits that if the Court is minded to impose a custodial sentence then a starting point of at least six months imprisonment is appropriate.  I do not find that this case calls for imprisonment. 
41. 	In the event that the Court considers a non-custodial sentence, the Prosecution likens this case to that of Police v John Magele & Paul Nielsen (3 October 2013) a similar Youth Court case of burglary and theft of a school by two young offenders, taking property of similar value to that which you stole in this case.  Both young offenders were convicted and sentenced to supervision with community work for the victim school pursuant to section 16(e) YOA.  I agree with this Prosecution submission. 
42. 	Section 16 YOA is available to the Court, if the Court is of the opinion that a conviction and sentence is required in the interests of justice after having given due consideration to all the circumstances of the offence. 
43. 	It is in the interests of justice that a conviction be entered against your name.   A conviction will reflect the level of your culpability, hold you accountable for your offending and deter you from committing a similar offence.
44. 	Under section 16(e) of YOA, you are convicted and sentenced to 12 months supervision with additional conditions:
•	To complete 60 hours of community work; and 
•	To stay away from Vaiala Beach School. 
45. 	I urge your father who is in Court today to enrol you back into school.  Your chances of re-offending will increase if you are sitting around at home with nothing productive with which to occupy your time.

______________________________
Judge Tafaoimalo Leilani Tuala-Warren