THE SUPREME COURT OF SAMOA
Police v Schaafhausen [2017] WSSC 61

Case name: 	Police v Schaafhausen	
		
Citation: 	[2017] WSSC 61	
		
Sentence date: 	31  March 2017	
		
Parties: 	POLICE (Prosecution) v DARYL PIO SCHAAFHAUSEN male of Vaoala
Accused

Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Tuala Warren	
		
On appeal from:		
		
Order:	For the burglary and theft on 7 October 2016 the accused is convicted and sentenced to 12 months supervision.For the burglary and theft on 4 November 2016 the accused is convicted and sentenced to 12 months supervision. The sentences of supervision are concurrent.
1.	These are the special conditions of supervisionThe accused is to continue to attend counseling with his village mayor for the duration of his sentence;
2.	He is to refrain from consuming alcohol; and
3.	He is to attend the 6 weeks programme for alcohol and drugs run by Probation.

Representation: 	O Tagaloa for Prosecution
S Ponifasio for the Accused

Catchwords: 	Aggravated burglary – burglary – theft - 	
	Burglary
Theft 	
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.175(a) and 33
Crimes Act 2013 s.374(1) and 33
Crimes Act 2013 ss.161,165(b) and 33  	
		
Cases cited:	Police v Nikolao[2015] WSSC 43 (15 April 2015)	
	Police v Iosefatu [2013] WSSC 76	

Summary of decision:	Police v Ajawas [2013] WSSC 49	

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

DARYL PIO SCHAAFHAUSEN male of Vaoala
Accused

Counsel:
O Tagaloa for Prosecution
D Roma for the Accused

Sentence: 27 April 2017

S E N T E N C E
The charges
1.	The accused appears for sentence on four charges in total arising out of two incidents. There is one joint charge of aggravated burglary, contrary to sections 175(a) and 33 of the Crimes Act which carries a maximum penalty of 14 years imprisonment, one joint charge of burglary contrary to 174(1) and 33 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and two joint charges of theft pursuant to pursuant to ss 161, 165(b) and 33 Crimes Act 2013 carrying  a maximum penalty of 7 years imprisonment.
2.	One charge of aggravated burglary and one charge of theft occurred on 4 November 2016. One charge of burglary and one charge of theft occurred on 7 October 2016.
3.	He pleaded guilty to the charges on 12 December  2016.  
4.	His co-accused entered not guilty pleas and his matter is set for hearing.
The offending 
5.	The Prosecution summary of facts admitted by the accused says that there are two  complainants. 
6.	On 7 October 2016, at around 6pm, the first complainant’s wife and children left to go to a church function. The accused and the co-accused entered the first complainant’s house without authority and took the following;
1.	One laptop valued at $2500.00;
2.	One external hard drive valued at $500.00;
3.	Two shorts valued at $10 each;
4.	One t-shirt valued at $10;
5.	4 cartons of milk valued at $4.00 each; and 
6.	One school bag valued at $10.
7.	The total value of the stolen items is $3056.00. None of this property was recovered.
8.	On 4 November  2016, at around 10.30 am, the second complainant went to have coffee with his neighbour. The accused and co-accused used a machete to open the sliding door of the second complainant’s house and went inside without authority. They then took the following items;
7.	One flat screen television valued at $1000;
8.	One Compaq laptop valued at $1000;
9.	One after shave valued at$50;
10.	Six bottles of wine valued at $50 each;
11.	Food and beers valued at $200;
12.	One brief case valued at $150; and
13.	One Panasonic camera valued at $200.
9.	The total value of the items taken is $2900.00. All of this property was recovered.
10.	The total value of the property stolen is $5956.00. The total value returned is $2900.00.
Aggravated burglary
11.	Sapolu CJ explores this offence in Police v Nikolao[2015] WSSC 43 (15 April 2015) He says as follows;
What differentiates  aggravated burglary  from simple burglary is that with  aggravated burglary , the offender is required to have a weapon with him or use anything as a weapon while committing a burglary whereas with simple burglary the offender is not required to have a weapon with him or use anything as a weapon.
The term “weapon” which is used for the offence of aggravated burglary  in s.175 is not defined in the Act. However, in Police v Iosefatu [2013] WSSC 76, I referred to Adams on Criminal Law (1992) vol 1, CA 240A.04 where the learned authors, when discussing the meaning of the term “weapon” in the context of the offence of  aggravated burglary , stated:
“The term ‘weapon’ is not defined in the Act... Presumably it will carry the same meaning as in the general law, and will therefore include both items which of themselves are designed or adapted for the purpose of causing injury to persons, as well as any other item which is intended to be used for such purpose. The position of items such as knives which may be used either as an ‘instrument’ for forcing entry or used as a weapon is unclear. It is possible that mere possession of such an item will be enough, but in view of the seriousness of the offence it is submitted that the prosecution should be obliged to prove at least an intention to use the item as a weapon if the situation should require it. However, compare R v Stores (1989) 89 Cr App R 26 in which it was held a household knife, not in itself an offensive weapon, came within the section because the accused admitted he carried it for self-defence against a gang who wished him ill” 
On the basis of the opinion expressed in Adams on Criminal Law (1992) vol 1, CA 240A.04, the hammer and screwdriver used by the accused to gain entry into the complainant’s house would not be “weapons” for the purpose of the offence of  aggravated burglary  unless it is proved by the prosecution that the accused had an intention to use those items as weapons if the situation should require it: see Police v Iosefatu [2013] WSSC 76, para 7. There is nothing in the summary of facts to show that the accused was in possession of the hammer and screwdriver with the intention to use those items as weapons if the situation should require it, that is to say, to cause injury to someone or to defend himself against anyone. The accused must have known that the complainant’s house was unoccupied because the complainant was overseas and his step father was looking after the house for the complainant. The complainant’s house is also just across the road from the house of the accused’s mother and step father so that the accused would be aware of it. The accused therefore could not have gone to the complainant’s house with the hammer and the screwdriver with the intention to use those items as weapons to cause injury to someone or to defend himself against anyone for the accused must have known that the complainant’s house was unoccupied.
The proper charge in this case should therefore have been simple burglary under s.174 (1) instead of  aggravated burglary  under s.175 (1). Accordingly, I will proceed on the basis that the charge in this case is one of simple burglary. In so doing, I will treat the hammer and screwdriver as “instruments” in terms of s.174 (3) which were used by the accused to make possible his entry into the complainant’s house and probably his entry into the complainant’s bedroom: see the discussion on the meaning of “instrument” in Police v Iosefatu [2013] WSSC 76 paras 4-6, 8, 9.
12.	It appears from the summary of facts here that the machete was used to open the sliding door and in the absence of any prosecution evidence that the accused had an intention to use the machete as a weapon, I am left with treating the machete as an instrument pursuant to s174(3)  Crimes Act 2013. The accused will be sentenced on burglary rather than aggravated burglary.
The accused
13.	As shown in the pre-sentence report, the accused is 21 years old. He is single and lives with his family at Vaoala.  His mother passed away a few months ago and his father is the sole provider for the family as a taxi driver.
14.	He says of the offending that before the first offence he and his friends had been consuming a large bottle of Niu vodka. He says that all the property has been returned except for the alcohol and food.
15.	His aunty told Probation that she is shocked by this offending as the accused is caring, obedient and loving. She also wrote in support of him that the whole family is supportive of him.
16.	There are written testimonials from his Pastor and village mayor. His Pastor says that he is starting to come back to church and youth activities. His village mayor says that she is now counselling him as she is an experienced counsellor. She says the accused is still very much affected by the recent death of his mother, and thus the reason why he has committed these offences.
17.	There has been no reconciliation as the accused says he tried to contact the complainants but they were not home.
18.	He is a first offender.

The complainants 

19.	There are two complainants in this matter. No victim impact statements were made available to Court. The only known fact is that both complainants live on the same street as the accused.
20.	Prosecution is again urged to provide victim impact reports for all cases where there are victims.
Aggravating features of the offending
21.	It is aggravating that both offences took place within a month and affected two complainants. 
22.	During both offences, the accused entered into the private dwelling houses of the complainants. This is in line with the case of Police v Ajawas [2013] WSSC 49 in which Sapolu CJ pointed out that in New Zealand burglary cases, home entry or entry into a private dwelling house is an aggravating factor relating to the offending, and used as an example Rio v Police [2011] NZHC 1002, para [27]. 
23.	The value of the properties stolen is significant, being $ 5956.00 in total.
24.	Another aggravating feature is that the accused planned his first offending to take place at night when the first complainant’s house was unoccupied and by the second offending, the level of premeditation was high.  They went with a machete to break in.
Mitigating features of the offending
25.	It is a mitigating feature of the offending that all of the second complainant’s property was recovered.
Mitigating Factors
26.	The age of the accused being 21 years is a mitigating factor.
27.	I take into account that he has been counselled by his village mayor, an experienced counsellor.
28.	His early guilty plea to the charges is a mitigating factor.
Discussion
29.	Prosecution submits that a term of supervision is appropriate in this case. However the cases they use as authorities deal with much smaller sums and all deal with one charge of burglary and one charge of theft. 
30.	Defence Counsel also submits that a sentence of supervision is appropriate.
31.	I use here the case of Police v Ajawas [2013] WSSC 49, in which Sapolu CJ used the categorisation in Senior v Police (2000) 18 CRNZ 340 at 344. The categories are first time burglar, recidivist burglar and spree burglar.
32.	In this case, the accused was a first time burglar but starting on a spree of burglaries. Fortunately he was caught after the second burglary. The properties taken demonstrate a deliberateness and a calmness to this offending. The number of items taken show that the accused took some time to collect and then remove the items.  This is disturbing behaviour for someone so young. Furthermore by the second offending, he took an instrument to break in. 
33.	However what I do take into account is that this young man has started on his rehabilitation by way of counselling from his village mayor who is an experienced counsellor. I take heed of section 5 Community Justice Act 2008 which provides that a Court when imposing sentence, must have regard to the desirability of keeping offenders in the community as far as that is practicable and consistent with the safety of the community.
34.	At the same time, a strong message of deterrence must be sent. The entry into private dwelling homes is an extreme invasion of privacy and security.  The accused entered not one but two homes. Being intoxicated is no excuse for this behaviour.
35.	I acknowledge work that has been done by the village mayor on this young man. This is, for this young man, the defining point, because in the absence of that, the sentence today would most certainly be custodial. This sentence is an attempt again by the Court to work with the community in addressing the causes of crime.
Sentence
36.	For the burglary and theft on 7 October 2016 the accused is convicted and sentenced to 12 months supervision.
37.	For the burglary and theft on 4 November 2016 the accused is convicted and sentenced to 12 months supervision.
38.	The sentences of supervision are concurrent.
39.	These are the special conditions of supervision;
1.	The accused is to continue to attend counseling with his village mayor for the duration of his sentence;
2.	He is to refrain from consuming alcohol; and
3.	He is to attend the 6 weeks program for alcohol and drugs run by Probation.
JUSTICE TAFAOIMALO TUALA WARREN