IN THE SUPREME COURT OF SAMOA
Police v Fiso [2014] WSSC 196

Case name: 	Police v Fiso	
		
Citation: 	[2014] WSSC 196	
		
Decision date: 	18 November 2014	
		
Parties: 	POLICE (Prosecution)
FAAFOI  SOLOMONA FISO male Vaitoomuli and Vaoala. (First Defendant) AND LEVI  MOLELI  male of Saleilua Falealili and Vaoala. (Second Defendant)	
		
Hearing date(s): 	18 November 2014	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:		
		
Representation: 	F Lagaaia and O Tagaloa for prosecution
Defendants unrepresented	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	FAAFOI  SOLOMONA FISO male Vaitoomuli and Vaoala.
First Defendant

AND:

	LEVI  MOLELI  male of Saleilua Falealili and Vaoala.
Second Defendant

Counsel:	F Lagaaia and O Tagaloa for prosecution
Defendants unrepresented

Hearing:	18 November 2014

Ruling:	18 November 2014

ORAL RULING OF NELSON J
1.	This matter involves the two defendants and others, at least one of whom also helped in carrying away the property stolen from the complainants store.  The defendant Faafoi Solomona is charged with burglary and theft of the complainant’s store.  His co-defendant Levi Moleli has pleaded guilty to breaking and entering the complainant’s store and stealing properties belonging to the complainant from the store.  Those properties being cigarettes, 8 large Vailimas, a bottle of spirits, cans of Vienna sausages, a cash register and the $100 contained therein as the complainants cash float for the next day.  
2.	The burglary occurred after the complainant closed her shop at around midnight of Saturday, 26 July this year when the village bingo was completed.  The evidence shows the defendant and others were drinking earlier at a different location.  They ran out of alcohol and decided to go to the complainants shop to buy more.  Levi was the leader of the group.  He went first followed by the others.  When he got to the shop he saw that it was closed but he had come prepared because he used some kind of cutters to cut the steel lock on the shop door.  He went inside and came out with the stolen goods which he handed to the defendant Faafoi who by this time was standing outside the shop.  Faafoi helped carry the goods away to a nearby “vanu” or gully where the cash register was smashed by Levi and the money and the other goods were split up among the group who then dispersed to one of their houses and continued with their party.  
3.	The evidence shows that Levi was the main culprit in this criminal enterprise.  He was in possession of the cutters that was used to cut away the steel lock of the shop which is indicative of some degree of pre-planning.  The shop owner was very clear the steel lock was not jemmied out; it was actually cut and discarded onto the ground where she found it the morning of the next day.  The defendant Levi was also the one who went into the shop and took the stolen goods.  He came out and handed it to the defendant Faafoi and possibly some other boys of the group because I cannot see one person carrying all these goods by himself.  Levi was also the one who divided up the spoils in the gully. He was the ringleader.
4.	The question before the Court is whether the defendant Faafoi who helped him carry the goods away from the shop is also a party to Levi’s actions because Faafoi has denied the burglary charge and denied breaking entering and burglarising the shop.
5.	I have come to the conclusion the prosecution have not proven beyond reasonable doubt Faafoi was party to the burglary.  There is no evidence that he knew of Levi’s plan or that he knew Levi was in possession of the lock cutters or that he knew Levi was contemplating doing this if the shop was closed for the night.  Evidence shows Faafoi arrived at the scene after Levi broke into and entered the shop.  This does not make him party to the burglary but what Faafoi is an accessory after the fact in terms of section 37 (a) of the Crimes Act 2013 because he knew Levi had broken into the shop and he did an act, namely, help carry away the stolen goods to assist Levi.   But defendant Faafoi has not been charged by the police for being an accessory after the fact and it would in my view be unfair at this stage to amend the charge against him to that of being an accessory after the fact.  Especially noting that Faafoi has consistently denied being party to the burglary but accepting that he did take part in stealing of the goods.  I also note that none of the other members of the group who helped carry the goods away have been charged with being an accessory after the fact or anything else.  It would be unfair to single out Faafoi and not the others.
6.	The conclusion of the Court therefore is in relation to the burglary charge S2341/14, for the reasons given that has not been proven beyond reasonable doubt, it is dismissed.  
7.	I am satisfied however that you were a party to the theft, namely, S2423/14, that has been proven to the required standard.  The defendant will be remanded on the same bail conditions to 8 December for a probation report and sentence.  He is to see the probation officer before he leaves Court.
8.	In relation to the remaining defendant Levi, it is clear from the summary of facts admitted by him at the last calling and the evidence heard today by the Court that he was the prime expeditor of the burglary and theft.  The fact that he was carrying cutters which he used to cut the store lock plus the manner in which he carried out the burglary while the shops exterior lights were all on indicate quite brazen behaviour.  The defendant had no fear in doing this sort of thing.  A deterrent sentence is required to stop Levi from repeating this sort of behaviour and to teach others what can happen to them if they commit this sort of offending.
9.	The legal maximum penalty for burglary is 10 years in prison.  Burglary is one of the most common crimes in Samoa.  The message to the public and to you Levi must be clear: break in to other peoples houses you can end up in jail.  
10.	A 12 month start point for sentence is appropriate for your case.  For your guilty plea I will deduct one-quarter of that period Levi because you have saved the Courts time by your plea; that leaves 9 months.  You have a good background, a clean police record and you have a good pre-sentence report from the probation office except for the part about the reconciliation (which I ignore as the probation office have now confirmed someone told them lies about that).  For your good background and record I therefore deduct 3 months Levi, leaves a balance of 6 months.  
11.	On the charge of burglary, convicted and sentenced to 6 months in prison to be followed by 6 months probation under the direction of the probation service on the usual terms except the following two special terms: For the period of your probation Levi, no alcohol of any form or kind; you are also to stay away from the complainant’s shop and the village where this matter occurred.
12.	In respect of the theft charge, I note none of the complainant’s properties were recovered so it represents a complete loss of $1,580.20 worth of goods.  But I do note that this was shared amongst the group and you all benefited from your theft.  On that charge, convicted and sentenced to 3 months in prison, concurrent term.  
13.	In respect of the last charge of wilful damage of a cash register worth $1,200, again that is a total loss to the complainant, the register is beyond repair.  There has been no restitution of any of these properties made or offered by you to the complainant.
14.	On the charge of wilful damage, convicted and sentenced to 3 months in prison, also concurrent term, which means the total term you will serve in prison Levi for this matter 6 months in prison plus 6 months on probation.  Poloaina foi le ofisa leoleo i le taimi lea sa e nofo taofia e faatalitali ai faagaoiga o mataupu ia e tatau ona toesea mai le 6 masina lea ua faasala ai oe mo le mataupu le nei, ua e malamalama i le faaiuga o lau mataupu? (Defendant said yes).

JUSTICE NELSON