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Police v Maini [2015] WSSC 88 (28 August 2015)

SUPREME COURT OF SAMOA
Police v Maini [2015] WSSC 88

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: 1682/15

BETWEEN

P O L I C E
Prosecution

A N D

AMOSA MAINI a male of Satapuala.
Accused

Counsel:
F Lagaaia for prosecution
Accused in person

Sentence: 27 August 2015

S E N T E N C E

The charge

1. The accused Amosa Maini of Satapuala appears for sentence on one charge of theft, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b), and one charge of burglary, contrary to s.174 (1) (a) of the Act, which carries a maximum penalty of 10 years imprisonment. The accused pleaded guilty to the charge of theft but not guilty to the charge of burglary. At the trial, the he was found guilty of the burglary charge.

The offending

2. The victims are a married couple who live inland of Mulifanua. Their son who lives in New Zealand is a friend of the accused who lives at Satapuala. On the last visit of the victim’s son to Samoa, the victims had occasion to meet with the accused. The victims and the accused got on very well. Then one day, the accused said to the victims we will have a family relationship (faaaiga). As a mechanical engineer, if anything goes wrong with your car I will fix it for you. The victims happily agreed. On the Sunday before their son returned to New Zealand, the victims invited the accused for toonai at their house. They treated the accused well as if he was a true member of their own family.
3. Then sometime after their son had returned to New Zealand, the victims had a faalavelave and the wife went to the accused for a pig and the accused gave her a pig. The accused then had a faalavelave and went to the victims for a fine mat and the victims gave him a fine mat.
4. Some days afterwards, a car that was used by the victims was damaged and they brought the car to the accused to repair. After the car was repaired, the accused returned it to the victims. The victims made no payment for the repairs done by the accused to the car. According to the evidence of the wife Taulauini Mose, that was because the accused had said to her and her husband, if anything goes wrong with your car, give it to me to fix, we are now of the same family. The costs of repairs was $1,800.
5. After waiting for quite some time for payment of the repairs he had done to the victims car and there was still no payment from the victims, the accused decided to take steps to compensate himself. So on 16 December 2014, the accused went in a car with his brother to the house of the victims. There was no one in the victims house. The accused then entered the house through the front door which was closed but not locked. He came out with a chainsaw, a buffer, a drill, and four pineapples and put them in his car and drove away. About two days later, the victims discovered that those properties were missing from their house and they contacted the police.
6. The cost of the chainsaw was about $6,000, the buffer about $3,000, the drill about $200, and the four pineapples about $80. The total value of these properties was about $9,280. Only the buffer and the drill were recovered by the police and returned to the victims but not the chainsaw and the pineapples. The chainsaw had been sold by the accused. Evidently, the accused had grossly over-compensated himself because the costs of the repairs he had done to the victims car was only $1,800.

The accused

7. According to the pre-sentence report, the accused is 43 years old. He is married with three children. At the time of this offending, he was employed as a mechanic in an electrical services company in Apia.
8. The accused is a first offender. His wife told the probation service that the accused is a hardworking and responsible person in their family who are dependent on him. The testimonials from the pastor of the accused’s church and the pulenuu of his village do not give an impressive picture of the accused. The brother of the accused who accompanied the accused to the house of the victims when this offending occurred was called as a witness by the prosecution. His evidence did provide an impressive picture of the accused as a person. I have also looked at the testimonials from the accused’s employer. The handwriting in which that testimonial is written is different from the signature at the end of the testimonial.
9. The accused has also apologised to the victims and the victim Talauini Mose appeared and informed the Court that they have forgiven the accused. However, the pre-sentence report shows that when the probation service interviewed the accused, he still maintained his innocence and said that all the properties he had taken were given to the police except for the chainsaw.

The aggravating features relating to the offending

(a) Value of the stolen properties

10. The total value of the stolen properties which far exceeds the costs of repairs that the accused had done to the victim s car is an aggravating feature relating to the offending.

(b) Home invasion

11. This offending involved home invasion. It involved the burglary and theft from a dwellinghouse. This is also an aggravating feature relating to the offending.

(c) Premeditation

12. This offending also involved a more than usual level of premeditation involved in offences of burglary and theft. The accused purposely drove in his car with his brother some distance from his village of Satapuala to the victims house inland of Mulifanua to claim compensation one way or the other for the costs of the repairs he had done to the victims car. The accused took the law into his own hands. This is another aggravating feature relating to the offending.

The mitigating features relating to the offending

(a) Debt owed by the victims

13. It was the non-payment by the victims of the repairs the accused had done to their car that triggered this offending. This is a mitigating feature relating to the offending.

(b) Restoration

14. Some of the stolen properties have been restored to the victims. The buffer and the drill were surrendered by the accused to the police who returned those properties to the victims. This is also a mitigating feature relating to the offending.

The mitigating features relating to the accused as offender

(c) Previous good character

15. Even though the accused is a first offender, I am not satisfied from his character testimonials and the evidence given by his brother who was called as a key witness by the prosecution that I should give my credit to the accused for previous good character.

(d) Apology to the victims

16. The accused has apologised to the victims and his apology was accepted. He has been forgiven by the victims. This is a mitigating feature relating to the accused as offender.

(e) Guilty plea to the theft charge

17. Even though the accused pleaded not guilty to the burglary charge, he had pleaded guilty to the theft charge at the earliest opportunity. This is a mitigating feature relating to the accused as offender. It appeared at the trial that the accused did not understand the offence of burglary. He did not appear to appreciate that he could not have entered the victims house and stole the victims properties without committing the offence of burglary.

Discussion

18. I have given careful consideration to the aggravating and mitigating features of this case as well as the sentencing memorandum of by the prosecution. I have to say that the sentences imposed by this Court in burglary and theft cases have varied from non-custodial to custodial sentences. While bearing in mind the maximum penalty for an offence and the general considerations of denunciation, deterrence, and rehabilitation, the sentence to be imposed in a particular case is very much influenced by the circumstances of that case. In my opinion, this can be better achieved under the starting point approach where the Court focuses on identifying the aggravating and mitigating features relating to the offending and the aggravating and mitigating features relating to the accused as offender rather than to apply a general, broad-brush, and instinctive approach. The starting point approach is the more structured approach.

The result

19. After considering the aggravating and mitigating features, the accused is convicted and fined $600 to be payable in 7 days in default 6 months imprisonment.
    

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CHIEF JUSTICE