Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Lelei [2016] WSSC 17 (20 January 2016)

IN THE SUPREME COURT OF SAMOA
Police v Liva LELEI [2016] WSSC 17

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

LIVA LELEI, male of Saaga Siumu, Leulumoega & Amaile
Defendant

Counsel:
Ms Sio & Ms Ioane for the Prosecution
Defendant in Person

Hearing Date: 20 January 2016

SENTENCE OF JUSTICE TUATAGALOA

The charges:

1. Liva, you are appearing for the charges of burglary and theft that you have pleaded guilty to on 26 May 2014 and then never appeared for sentence when adjourned to 30 June 2014.
2. A warrant of arrest was ordered on 30 June 2014 when you failed to appear. You were arrested on 10 December 2015, after more than a year of the warrant being issued against you.
3. The offence of burglary you are charged with under s 174 Crimes Act 2013 carries a maximum penalty of 10 years’ imprisonment. While the offence of theft pursuant to ss 161 & 165(b) Crimes Act 2013 is an imprisonment term of not more than 2 years.

The offending:

4. You confirmed the summary of facts with the exception of a few particulars but this would not have an impact on the Court’s sentencing. In addition to the summary of facts, when you were re-interviewed by probation for clarification on some of the facts asked by the Court, you told probation that on that night you were at RSA night club; you went home with a friend and slept at Leufisa whereby you committed the offences.

The accused:

5. You are 42 years’ old of Leulumoega-tuai but the summary of facts say that you are currently residing at Amaile, Aleipata. The house you burgled and stole from is at Leufisa and that is a long way from Amaile, Aleipata where you are said to be residing. The pre-sentence report says that you at the time were residing with your sister at Siusega. You have previous convictions of the same offences dating back to 1988.

The victim:

6. The only information about the victim from the summary of facts is that she is 57 years’ old of Leufisa.

Aggravating factors:

• As mentioned earlier, you have a previous record of the same offences as the current one of burglary and theft, that is aggravating personal to you as the offender. I will also take into account as an aggravating factor personal to you the fact that you did not turn up for sentencing on 30 June 2014 and that a whole year lapsed before you are now being sentenced.
• You broke into the victim’s home through the screen wire next to the sliding door where you put your hand through to open the sliding door to go in. You broke in to the victim’s house at night and it is therefore a home invasion.
• There is pre-meditation on your part in that you knew that the family was asleep when you broke in.
• You stole the victim’s handbag which contained cash and her ANZ ATM card. You were able to withdraw money using the ATM card because the victim’s pin- number was written on a piece of paper in her handbag. The amount that you stole is $560.00.

Mitigating factor:

7. The only mitigating factor is your early pleas.
8. Given your previous history of offending, most importantly of the same sort of offending, make no mistake that a custodial sentence is most appropriate. The only question is how long?
9. The prosecution has referred to a number of cases of same offending where the Court has imposed various penalties all of which (with the exception of one) were all custodial.
10. You may be a recidivist burglar as prosecution submits and they advocate that a deterrent sentence should be imposed by the Court. The deterrent sentence they are referring to is a custodial sentence with a starting point of not less than 12 months. The Court note from your previous record that custodial sentences were imposed but this does not seem to deter you from continuing to commit the same offences.
11. I have said in other sentences, deterrence is not only by way of custodial. Prosecution must be creative with their sentencing options and think laterally instead of focusing on custodial as the only means of deterrence. A longer non-custodial sentence with conditions can also act as deterrence.
12. As I’ve said earlier the sentence will be custodial the only question is how long?
13. For the offence of burglary, a starting point of 2 years with a further
    8 months for aggravating factors personal to the accused, less 1/3 discount for early plea (10 months). This leaves 22 months imprisonment.
14. For theft, a 12 months starting point, an uplift of 8 months for aggravating factors personal to the offender, less 1/3 discount for early plea (7 months). This leaves 14 months.
15. Liva Lelei you are convicted and sentenced to 22 months’ imprisonment for burglary and 14 months for theft. The sentences are to be served cumulatively which means you are to serve an imprisonment term of three (3) years.
    

____________________________
Laulusā Justice Mata Tuatagaloa