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Police v Afoa [2014] WSSC 29 (16 July 2014)

SUPREME COURT OF SAMOA

Police v Afoa [2014] WSSC 29

Case name: Police v Sesela Afoa

Citation: [2014] WSSC 29

Decision date: 16 July 2014

Parties: POLICE (prosecution) and SESELA AFOA male of Vaivase-uta and Lona Fagaloa.Hearing date(s):

File number(s): S2912/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia for prosecution
M V Peteru for accused

Catchwords:

Words and phrases:
theft, aggravating and mitigating features, sentence

Legislation cited:
Crimes Ordinance 1961 s.85, s.86(1)(d)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2912/13

BETWEEN

P O L I C E

Prosecution

A N D

SESELA AFOA male of Vaivase-uta and Lona Fagaloa.

Counsel
F Lagaaia for prosecution
M V Peteru for accused

Sentence: 16 July 2014

S E N T E N C E

The charges

1. The accused stood trial on two counts of theft contrary to s.85 of the Crimes Ordinance 1961. Each count carries a maximum penalty of 5 years imprisonment under s.86(1)(d). The accused had originally pleaded not guilty but on the second day of trial he vacated his not guilty plea and entered a guilty plea to both counts.

The offending

2. At the time of the offending, the accused was employed as head carpenter by the Ministry of Police and Prisons (“the Ministry”). His duties included taking purchase orders by the Ministry to companies in Apia for building materials to be used in the construction of certain police projects.
3. On 8 December 2006, another employee of the Ministry prepared and filled in an unauthorised purchase order for building materials made out to Strickland Bros Ltd which is a company that supplies building materials. The company supplied the order to the accused who then took the building materials to his village and used them for the construction of his own house. The total value of those building materials was $7,416.48.
4. On 21 December 2006, another employee of the Ministry prepared and filled in another unauthorised purchase order for building materials made out to the same company Strickland Bros Ltd. The accused took that order to the company and obtained building materials which he also took to his village and used in the construction of his own house. The total value of those building materials was $2,579.
5. The total value of the building materials stolen by the accused was therefore $9.995.48.

The accused

6. The accused is 58 years of age. He is married with six children. As earlier mentioned, at the time of this offending he was employed as head carpenter in the Ministry of Police and Prisons.
7. He had served a term of life imprisonment for murder. After he was granted parole, he was employed as head carpenter by the Ministry. He must have been a good carpenter to be employed by the Ministry as head carpenter after he was granted parole. He was one of the prisoners who received a special pardon in 2012 to commemorate the 50th Anniversary of Samoa’s Independence. As his offence of murder has been pardoned, he was therefore no longer on parole by the time of this trial.
8. Apart from the accused’s murder conviction, the testimonials from his wife, his village pastor and his village pulenuu show him to have been a good person.

The aggravating and mitigating features

9. The aggravating features in relation to this offending are: (a) the obvious element of pre-meditation and planning involved in the commission of the offences, (b) the abuse by the accused of his position with the Ministry to deceive the victim, and (c) the total value of the building materials stolen. There is no mitigating feature in relation to the offending.
10. In relation to the accused as offender, his previous conviction for murder is an aggravating feature whilst his guilty plea, though belated, is a mitigating feature.

Discussion

11. Having regard to the aggravating features relating to the offending, I will take 2 years as the starting point for sentence. I will add 3 months for his previous conviction. That increases the starting point to 2 years and 3 months. I will deduct 20% or 5 months for the belated guilty plea. That reduces the starting point to 1 year and 10 months.

The result

12. The accused is convicted and sentenced to 1 year and 10 months imprisonment on each of the two counts of theft. Both sentences to be concurrent. That means the accused will serve a sentence of 1 year and 10 months on both counts of theft. Any time that the accused had spent in custody pending the outcome of this matter is to be further deducted from that sentence.
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CHIEF JUSTICE

• .

Solicitor

Attorney-General’s Office, Apia for prosecution

M V Peteru Law Firm for accused