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Police v Fuimaono [2018] WSSC 7 (31 January 2018)

SUPREME COURT OF SAMOA
Police v Fuimaono [2018] WSSC 7

N THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AGASII FUIMAONO male of Apia and Lepa, Aleipata.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 31 January 2018

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of burglary, contrary to s.174 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 7 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution summary of facts accepted by the accused, on 23 September 2017 at around 2:00am the accused and three companions went to the Rendezvous restaurant and bar at Maluafou when it was already closed. Two of the accused’s companions then removed louvres of the restaurant and went inside while the accused and his other companion waited outside one of the windows. The accused and his companions stole one Samsung sound system, a projector, a sonny stereo, a plastic container with cables for a karaoke machine, an electronic safe, and numerous bottles of beer and spirits. The total value of the stolen properties is $11,879.
3. The pre-sentence report shows that the accused told the probation service that two days later when he heard that the police were looking for the people who broke into the Rendezvous restaurant and bar, he and his companions brought all the stolen properties at around 2:00am to 3:00am in the early morning and stored them under the hedges near the restaurant to await the right time to take them back into the restaurant. They then went to the seawall in Apia. When they returned to the stolen properties at around 3:00am the same morning, the properties were gone.
4. When I questioned the accused about this part of the pre-sentence report, I found his answers unconvincing. I do not believe the accused.
5. The accused also told the probation service that he returned five bottles of spirits to the owner of the restaurant. When I questioned the accused about this, he said the police found five bottles of spirits with him.

The accused

6. As also shown from the pre-sentence report, the accused is 22 years old, single, and presently unemployed. He left school on his own accord at Year 12 and then worked at a rental car company for three years until his service was terminated. At the time of this offending, he was working on his family’s plantation.
7. The pre-sentence report further shows that the accused has previous convictions for similar offending and on 20 September 2017 he was placed under supervision and ordered to serve 80 hours community service. Three days later on 23 September 2017, the accused committed the offences for which he is not appearing for sentence.
8. I am not able to accept the oral testimonial given by the mother of the accused to the probation service that her son is a person of good character. I am also not able to accept that the accused is deeply remorseful. The accused did not show any remorse to the Court or said that he was remorseful.

The victim

9. The victim in this matter is the owner of the Rendezvous restaurant and bar which are his main source of income. Since this offending, his restaurant and bar have been closed down as the equipments he used for his business have been stolen by the accused and his companions. He estimates his loss of income from the time of the offending to now to be about $50,000. It is, however, not clear whether that is before or after expenses have been deducted.

The accused’s companions

10. On the material time before the Court, only two of the accused’s companions have been charged with the accused. Because the accused’s two companions are both aged 16 years, they have been referred to the Youth Court.

The aggravating features relating to the offending

11. The aggravating features relating to this offending are:
    • (a) the total value of the stolen properties,
    • (b) the impact of this offending on the victim whose business has been closed down with consequential loss of income, and
    • (c) the fact that the accused committed these offences only three days after he had been convicted and sentenced for a similar offending.

The mitigating features relating to the offending

12. There is no mitigating feature relating to the offending.

The aggravating features relating to the accused as offender

13. The accused’s previous convictions on 20 September 2017 for similar offending is an aggravating feature relating to the accused as offender.

The mitigating features relating to the accused as offender

14. The only mitigating feature relating to the accused as offender is his early guilty plea.

Discussion

15. Having regard to the aggravating features relating to the offending, I will take 2 years as the starting point for sentence. I will add on 3 months for the previous convictions. That increases the starting point to 2 years and 3 months. I will deduct 1/3 or 9 months for the early guilty plea. That leaves 18 months which will be the end sentence.

Result

16. The accused is convicted and sentenced to 18 months imprisonment on each of the charges of burglary and theft. Both sentences to be concurrent.
17. Anytime the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.

CHIEF JUSTICE