IN THE COURT OF APPEAL OF SAMOA
Amosa v Police; Feseetai v Police [2022] WSCA 3 (14 November 2022)

Case name: 	Amosa v Police; Feseetai v Police	
		
Citation: 	[2022] WSCA 3	
		
Decision date: 	14 November 2022	
		
Parties: 	TALOSAGA WALES AMOSA (Appellant CA05/22) v POLICE (Respondent); LUI FESEETAI (Appellant CA07/22) v POLICE (Respondent)	
		
Hearing date(s): 	07 November 2022	
		
File number(s): 	CA05/22
CA07/22	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young
Honourable Justice Tuala-Warren	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	Accordingly we allow both appeals and quash the terms of eight months imprisonment imposed on both appellants. In substitution we impose terms of three months imprisonment for each to take account of time served.	
		
Representation: 	T. Toailoa for the Appellant in CA 05/22
S. Chan Chui for the Appellant in CA 07/22
F. Ioane for the Respondent 	
		
Catchwords: 	Theft as a servant - appeal against sentences – appeals allowed. 	
		
Words and phrases:		
		
Legislation cited:	Sentencing Act 2016, ss. 6(e); 9.  	
		
Cases cited:	Police v Pei [2017] WSSC 87.	
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 05/22

TALOSAGA WALES AMOSA
Appellant

v

P O L I C E
Respondent

CA 07/22

LUI FESEETAI
Appellant

v

P O L I C E
Respondent

Coram:		Honourable Justice Harrison
		Honourable Justice Asher
		Honourable Justice Young
		Honourable Justice Tuala-Warren

Hearing:	07 November 2022

Counsel:	T. Toailoa for the Appellant in CA 05/22
		S. Chan Chui for the Appellant in CA 07/22
		F. Ioane for the Respondent

Judgment:	14 November 2022

JUDGMENT OF THE COURT
Introduction
1. 	The Chief Justice found Talosaga Wales Amosa and Lui Feseetai guilty following a trial in the Supreme Court on charges of theft as a servant. On 29 July 2022 he convicted and sentenced each man to terms of eight months imprisonment. The maximum punishment provided for this offending is a sentence of 10 years imprisonment.
2. 	Messrs Amosa and Feseetai appeal against their sentences on the grounds that they were manifestly excessive; were disparate with sentences earlier imposed on co-offenders who pleaded guilty to similar charges; or were wrong in principle because excessive weight had been given to their maintenance of innocence or lack of remorse or by failing to give proper credit for restitution. 
Supreme Court
3. 	Both appellants were formerly employees of the Gambling Control Authority Samoa Sportslotto, a statutory body which was in the business of selling tickets to the general public for lotteries or games operated by Australian entities among others. The ticket selling process was standardised. Customers would identify or register themselves with an Authority operator for entry of their details into a terminal.  Customers then selected a number or the operator chose a quick pick for them.  This entry generated a ticket but the printing process was paused mid-way for the operator to total up the value of the ticket or tickets being purchased and the price payable by the customer. Once the operator entered those details and payment was made, the printing process was resumed, a ticket was issued and the details were transmitted to Australia for entry into the prize draw.
4. 	The appellants were employed by the Authority as operators of the ticket vending terminals.  Like their co-offenders, they implemented a scheme to defraud the Authority and its customers by turning off the power supply to the terminal at the midway point in the ticket printing process. This step had the effect of destroying the terminal’s memory of the ticket’s details. The ticket which was printed following the operator’s resumption of the power supply was worthless to the customer because it was never transmitted to Australia for entry into the prize draw.  Instead of accounting to the Authority for the ticket payment, the operators stole the money for themselves. By this means the Authority was deprived of the revenue from the ticket sale and the customer was deprived of the opportunity of winning a prize for which he or she had paid.
5. 	Mr Amosa pleaded not guilty to six charges of theft by a servant to a total of $379; Mr Feseetai pleaded not guilty to one charge of theft by a servant of $365. Following trial, the Chief Justice found the charges proven against each appellant and convicted them. He adopted a structured approach to the sentencing process. He applied a common starting point of 12 months imprisonment for both men to give appropriate weight to the objective of deterrence and to take into account the aggravating factors of grave abuses of trust and confidence, premeditation, brazenness, deceit of customers and the seriously adverse effect on public confidence in the Authority. In Mr Amosa’s case he pointed to the frequency of the offending even though the amounts were relatively small. He then allowed each appellant a discount of four months to reflect personally mitigating factors and delays in sentencing before imposing end sentences of eight months imprisonment. 
6. 	The five other ex-employees of the Authority who were charged as co-offenders had earlier pleaded guilty to the same charge of theft as a servant of sums ranging between $2467 and $440. Justice Nelson convicted them and imposed fines ranging between $200 and $1250. Like Messrs Amosa and Feseetai, each of these offenders had made full restitution of the amounts stolen. None of them received a prison sentence.
Appeal
7. 	The first ground of appeal advanced by both appellants is that the sentences of imprisonment imposed were manifestly excessive.
8. 	We consider that a starting point of a term of imprisonment was open to the Chief Justice. He was right to give weight to the aggravating factors which he expressly identified. Despite the limited amounts of money stolen, this offending was particularly serious in its twin duplicity of both the employer and individual members of the general public.  As well, it caused significant and costly reputational damage to the employer. 
9. 	However, by reference to sentences imposed in comparable cases of employee dishonesty we are satisfied that the starting point imposed of 12 months was too high. Section 6(e) of the Sentencing Act 2016 obliges a Court to take into account the desirability of consistency with appropriate sentencing levels imposed in similar offending. Mr Chan Chui for Mr Feseetai provided a comprehensive summary of sentences imposed in the Supreme Court for theft as a servant and related dishonesty since 2016. It reflects an informal but uniform practice of imposing for similar dishonesty offending non-custodial sanctions such as fines, supervision, community work, probation and directions to attend rehabilitative programs. In recognition of the value of Mr Chan Chui’s assistance we reproduce his table as an appendix to this judgment.
10. 	We are satisfied that in the context of current sentencing practice, an appropriate starting point of six months imprisonment gives proper recognition of the aggravating features of this offending.  In the cases he dealt with Justice Nelson did not identify a starting point but working back from the sentences he eventually imposed it cannot have been as long as 12 months.  In all those cases the amounts stolen were higher, some considerably higher, than by these two appellants. It is not our function on these appeals to revisit or review the existing sentencing tariff applied by the Supreme Court for employee dishonesty offending. That would require an application by the Attorney- General in an appropriate appeal.  However we view the starting point as too high
11. 	The appellants’ second ground of appeal is that the sentences imposed are unfairly disparate from the fines imposed on their co-offenders. The Chief Justice was aware of those sentences but distinguished them for the reason that Messrs Amosa and Feseetai did not enjoy the mitigatory benefit of pleas of remorse and expressions of remorse. Justice Nelson had given some weight to the existence of both factors. We agree with the Chief Justice that these differences set the two cases apart, and in any event this discrete ground has become subsumed in the primary ground of challenge.  We note, however, that it was unfortunate that the Chief Justice did not have the advantage of seeing a copy of Justice Nelson’s sentencing remarks.  Had such a copy been made available to him, we think it likely that he would have adopted a lower starting point.
12. 	The third ground of appeal is that the Chief Justice treated the appellants’ continued protestations of innocence and corresponding lack of remorse as an aggravating factor. We disagree.  The Chief Justice simply identified that factor as demonstrating the appellants’ lack of insight into their offending and as having the effect that mitigating factors available to their co-offenders were not available in their cases .Otherwise its effect was neutral.
13. 	However, this element leads into the fourth ground raised by Ms Toailoa that the Chief Justice did not give proper credit for the full restitution made by both appellants. Section 9 of the Sentencing Act allows the Court to take account of remedial action taken by a defendant. The Chief Justice acknowledged that this factor along with apologies tendered to the Authority should be taken into account but appeared to treat them as neutralised by the common lack of remorse. In our judgment they merited a discrete allowance in the sentencing process. But its degree must be modest given that restitution did not compensate the ticket buyers for their losses and did not address the significant financial costs to their employer of the reputational damage their actions caused.
Result
14. 	Accordingly we allow both appeals and quash the terms of eight months imprisonment imposed on both appellants. In substitution we impose terms of three months imprisonment for each to take account of time served, which Ms Ioane fairly accepted would be the appropriate sentence if the appeals were allowed. The 50% discount against the appropriate starting point allows for the previous good character and support which the both men enjoy from their families, villages and churches, which the Chief Justice expressly acknowledged, together with their full financial compensation to the Authority.
15. 	As a postscript, we endorse the Chief Justice’s view that this offending called for a deterrent response. Ms Ioane rightly points to the prevalence of this type of offending as illustrated by the number of cases cited by Mr Chan Chui. However, we also endorse Justice Clarke’s observation in Police v Pei  that a lengthy term of community work has a significant deterrent effect and also serves the statutory purpose of rehabilitation when combined with supervision and counselling for a first offender.  Given the three months the appellants have already served in prison, we do not in this appeal consider a further sentence such as community work to be appropriate.
16. 	As will be apparent from the terms of this judgment, the sentences imposed on the appellants by this Court relate to the particular circumstances of their appeals and are not to be treated as a precedent for departing from existing sentencing practices or levels following conviction in the future for employee or related dishonesty offending. 
17. 	We wish to acknowledge the most constructive assistance given by all counsel in arguing these appeals.

HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE ASHER
HONOURABLE JUSTICE YOUNG
HONOURABLE JUSTICE TUALA-WARREN

APPENDIX: 
Case	Brief facts/charges	Sentencing factors	Outcome	
Police v Suafo’a [2021] WSSC 48

Chief Justice Perese	The defendant was charged with x3 counts of forgery and x3 counts of theft as a servant under ss161 & 165(e) Crimes Act 2013.
The defendant had stolen a total of $6,1000.00	Aggravating
* Breach of trust.

Mitigating
* Accepted responsibility;
* Apologised;
* Restitution;
* Early guilty plea;
* Offending out of character;
*Remorseful.	Convicted and sentenced to 12 months of supervision for all x6 charges.	
Police v Time [2020] WSSC 59

Justice Roma	The defendant pleaded guilty to one charge of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. That she stole $1,360.00 monies from her employer. 	Aggravating 
* Breach of trust;
*Amount stolen.

Mitigating 
* No personal factors;
* Remorse;
*First offender & good character;
* Early guilty plea;
* Restitution.	Convicted and sentenced to 8 months of supervision.	
Police v Soonalole [2019] WSSC 70

Justice Tuatagaloa 	The defendant was charged with x4 counts of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. She was a cashier and received money from parents who paid her school fees for their children. The defendant would issue receipts to them but took the money. The offending was carried out over a period of 4 months. The total money stolen was $7,400.70.	Aggravating 
* Breach of trust.

Mitigating
* Personal background;
* Guilty plea.	Convicted and sentenced to 18 months supervision.	
Police v Lelevaga [2019] WSSC 82

Justice Tuatagaloa 	The defendant was charged with theft as a servant under ss. 161 & 165(e) Crimes Act 2013. He was employed to deliver water bottles for the cooler for his employer. During his employment, he would collect money from the customer which he kept. The total of money he stole was $1,471.20.	Aggravating
* Breach of trust;
* Pre-meditation;
* Amount stolen;
* Impact on the employer.

Mitigating 
* First offender;
* Early guilty plea;
* Good character.	Convicted and fined $500 and to pay costs to Prosecution and Probation. 	
Police v Ioane [2019] WSSC 74

Justice Tuatagaloa 	The defendant pleaded guilty to a count of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. That she stole $1,606.96.	Aggravating
* Breach of trust.

Mitigating 
* First offender;
* Early guilty plea.	Convicted and sentenced to 7 months of supervision.	
Police v Afutiti [2019] WSSC 35

Justice Clarke	The defendant pleaded guilty to theft as a servant for stealing items at the total value of $265.00.	Aggravating
* Breach of trust;
* Committed the offence twice;
Planned.

Mitigating
* Remorse;
* Apology;
* Good character;
* Early guilty plea.	Convicted and sentenced to 16 months of supervision.	
Police v Sione [2018] WSSC 68

Justice Tuatagaloa 	The defendant was charged with the following: x1 theft as a servant for the amount of $5,432.46 under ss. 161 & 165(e) Crimes Act 2013; x1 forgery; x1 using a forged document. 	Aggravating 
* Breach of trust;
* Pre-meditation;
* Amount stolen;
* Impact of his offending.

Mitigating
* Personal factors;
* Early guilty plea;
* Good character.	Convicted and sentenced to 18 months of supervision.	
Police v Kalati [2017] WSSC 46

Justice Tuatagaloa 	The defendant was charged with x4 counts of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. The defendant on four separate occasions stole money from her employer’s clients who paid money to the firm for the legal work carried out. The total monies stolen was $3,548.00.	Aggravating
* Breach of trust;
* Pre-meditation; 
* The total was significant;
* Impact on the employer.

Mitigating
* Age;
*First offender;
*Apology;
*Repayments;
* Early guilty plea.	Convicted and sentenced to 12 months’ suspended sentence.	
Police v Sinei [2017] WSSC 156

Justice Clarke	The defendant pleaded guilty to one count of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. The defendant received $540 in monies on behalf of his employer, which he stole. 	Aggravating 
* Breach of trust.

Mitigating
* Guilty plea;
* Restitution;
* Remorse/apology;
* Good character. 	Convicted and ordered to come up for sentence within 12 months, pay Court costs of $150 in default of 7 days’ imprisonment.	
Police v Pei [2017] WSSC 87

Justice Clarke	The defendant was charged with x2 counts of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. She entered a not guilty plea to one charge of stealing $900 and pleaded guilty to the other charge of stealing $485.32. At the hearing, she was found guilty of the charge she pleaded not guilty to.  The defendant stole $1,385.32.	Aggravating
* Gross breach of trust;
* Offending occurred on two separate occasions;
* Level of deception/pre-meditation;
* Value of money stolen.

Mitigating
* Early guilty plea;
* Reconciliation;
* Apology;
* Restitution;
* Remorse;
* Good character.	Convicted and sentenced to 12 months of supervision.

Ordered to complete 180 hours of community work, 6 weeks of spiritual counselling, and pay $500 Prosecution costs. 	
Police v Sofai [2017] WSSC 78

Justice Clarke	The defendant pleaded guilty to x2 charges of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. Theft for the amount of $600 & $250, total $850.	Aggravating
* Breach of trust employer & her employer’s clients;
* Planning & pre-meditation.

Mitigating factor
* Good character;
* Early guilty plea;;
* Restitution 	Convicted and sentenced to 12 months supervision on special conditions: Attend a rehabilitative programme; 100 hours of community work; pay Prosecution costs of $600.00.	
Police v Swanney [2016] WSSC 139

Justice Warren	The defendant pleaded guilty to x9 charges of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. Total money stolen $1,700.00.	Aggravating
* Breach of trust;
* Pre-meditation.

Mitigating
* Restitution;
* Family and good character;
* Late guilty plea discount.	Convicted and sentenced to 12 months of supervision with the conditions: 80 hours of community work, pay $1,000.00 to Prosecution.	
Police v Tafale [2016] WSSC 173

Justice Warren	The defendant pleaded guilty to a count of theft as a servant under ss. 161 & 165(e) Crimes Act 2013 for stealing items with a total value of $780.00.	Aggravating 

* Breach of trust.

Mitigating 
* Properties were returned;
* Completed a programme;
* Good testimonies;
* Early guilty plea.	Convicted and ordered to come up for a sentence in 12 months. 	
Police v Kereti [2015] WSSC 167

Justice Vaai	The defendant pleaded guilty to 50 charges of theft as a servant under ss. 161 & 165(e) Crimes Act 2013. She stole a total of $7,961.00. Also x 40 charges of false accounting. 	Aggravating
* Deceiving nature of her actions;
* Lengthy period of her dishonesty;
* Breach of trust.

Mitigating factors
* Restitution 
* Personal factors. 	Convicted and sentenced, placed on Probation for 2 years, 100 hours of community service, and pay Prosecution costs of $1,000. 	
Police v Vaega [2015] WSSC 197

Chief Justice Sapolu	The defendant was charged with x8 counts of theft as a servant under ss. 161 & 165(e) Crimes Act 2013 which he pleaded not guilty to. At the  hearing, he was found guilty of all charges.  The total sum he stole on different occasions was $441.80.	Aggravating
* Breach of trust.

Mitigating
* First offender;
* Good character;
* Age.	Convicted and sentenced to 12 months of community service.	
Police v Rudnick [2010] WSSC 48

Justice Slicer	The defendant pleaded guilty to x5 charges of theft as a servant under ss. 85 and 86 of the Crimes Ordinance 1961. The total of monies stolen was $4,100.00.	Aggravating
* Breach of trust;
* Nature of offending & dishonesty;
* The value of the stolen items.

Mitigating
* Clean record;
* Restitution;
* Guilty plea;
* Good character.	Convicted and sentenced to 100 hours community service, a fine of $1,000 and to appear for sentence after 2  years if called upon.