IN THE COURT OF APPEAL OF SAMOA
Police v Toala [2024] WSCA 4 (7 October 2024)

Case name: 	Police v Toala	
		
Citation: 	[2024] WSCA 4	
		
Decision date: 	7 October 2024	
		
Parties: 	POLICE (Appellant) v PETAIA TOALA (Respondent)	
		
Hearing date(s): 	24 September 2024	
		
File number(s): 	CA05/24	
		
Jurisdiction: 	Court of Appeal – CRIMINAL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Justice Harrison
Justice Asher
Justice Young	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is allowed. The sentence of discharge without conviction is quashed. Mr Toala is convicted and sentenced to 18 months’ supervision and 50 hours of community work.	
		
Representation: 	F. Lawrence & J. Leung-Wai for the Appellant
A. Matalasi for the Respondent	
		
Catchwords: 	Appeal against sentence – appeal against discharge without conviction.	
		
Words and phrases:		
		
Legislation cited:	Crimes Amendment Act 2003, s. 4(1);
Crimes Act 1961, s. 2(1);
Crimes Act 2013, s. 161;
Sentencing Act 2016, ss. 17(1); 17(1)(b); 17(2); 69; 70.	
		
Cases cited:	A v R [2011] NZCA 328;
Attorney General v Godinet [2011] WSCA 6;
Attorney General v Ioane [1994] WSCA 20;
Attorney- General v Ropati [2019] WSCA 2;
Gathergood v R [2010] NZCA 350;
Police v Sooalo [2020] WSSC 17;
Police v Soonalole [2019] WSSC 70;
Police v Valaauina [2009] WSSC 21;
Police v Wulf [2022] WSSC 18;
R v Cargill [1990] 2 NZLR 138 (CA);
R v Wihapi [1976] 1 NZLR 422 (CA).	
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Appellant

AND:

PETAIA TOALA

Respondent

Coram:		Justice Harrison
		Justice Asher
		Justice Young

Counsel: 	F. Lawrence & J. Leung-Wai for the Appellant
A. Matalasi for the Respondent

Hearing:	24 September 2024

Judgment:	7 October 2024

JUDGMENT OF THE COURT
INTRODUCTION
1. 	This appeal was heard in Samoa.  Justice Young was present in the courtroom in Apia, along with counsel, the Registrar and members of the public. Justices Harrison and Asher joined by video link from Auckland.
2. 	The respondent, Petaia Toala, is a 30 year old male of Siufaga, Faga Savaii and Alafua.
3. 	Mr Toala was charged with a single charge of theft as a servant.  The items in question were media equipment, being an iMac desktop computer and a mini PA system.
4. 	Through counsel, Mr Toala entered a guilty plea to the charging document on 5 February 2024.  The matter was scheduled for sentencing on 7 March 2024.  
5. 	On 4 March 2024 a pre-sentence report relating to Mr Toala was filed and served.  
6. 	On 6 March 2024 Mr Toala’s counsel filed and served submissions in mitigation of sentence which included an application for discharge without conviction.  An affidavit from Mr Toala was also filed and served. 
7. 	It would seem that when the matter was called on 7 March 2024, defence counsel submitted that the sentencing involved several significant considerations.  After becoming aware of these the Chief Justice adjourned the sentencing to 14 March 2024, and asked the prosecution to:
(a) 	Consider whether to proceed with the criminal prosecution; and 
(b) 	Respond to the materials in an affidavit provided by defence counsel.  
8. 	On 14 March 2024 the prosecution filed and served a memorandum confirming that they would be proceeding with the charge.  When the matter was called before the Chief Justice, the question of whether Mr Toala would adhere to his plea was discussed by the parties.  The Chief Justice adjourned the matter to 21 March 2024.  He ordered defence counsel to file a notice by 20 March 2024 confirming Mr Toala’s plea.
9. 	On 19 March 2024 defence counsel filed a written notice stating that Mr Toala was maintaining his plea of guilty to the offence.
10. 	On 21 March 2024 the Chief Justice delivered his sentencing judgment.  
SENTENCING DECISION
11. 	The Chief Justice traced some of the history of the various positions taken by Mr Toala, some of which appeared to be questioning whether he actually committed theft. But ultimately, as the Chief Justice noted, Mr Toala had accepted his offending, stating “I am not denying that I stole the items, I take full responsibility for my actions and I am remorseful”.  
12. 	The Chief Justice noted that the prosecution had set out a list of aggravating factors, and sought a custodial sentence with a starting point of two years.  He considered that the gravity of the offence was serious, involving an employer who had reposed trust and confidence in the respondent.  He also noted the stigma that attached to criminal offences and that a conviction would have a career limiting or ending effect on Mr Toala given the small size of the industry he was working in.  
13. 	The Judge concluded that the discretion which was open to him under s 69 of the Sentencing Act 2016 should be exercised in Mr Toala’s favour.  He was satisfied that the direct and indirect consequences of a conviction to Mr Toala would be out of all proportion to the gravity of the offence.  He discharged Mr Toala without conviction.
THE APPEAL
14. 	The grounds of appeal were as follows:
(a) 	His Honour erred by inappropriately giving consideration to whether the relevant property was indeed stolen;
(b) 	His Honour erred by inappropriately giving consideration to a “colour of right” defence, which His Honour regarded as potentially available to the Respondent;
(c) 	His Honour failed to properly take into account relevant aggravating factors on sentence; 
(d) 	The sentence imposed was manifestly inadequate having regard to all the surrounding circumstances of the case, and previous authorities; and 
(e) 	His Honour erred in the application of the test for discharge without conviction, by finding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
15. 	In the submissions of his counsel, Mr Toala directly challenged each ground, referring to the material before the Chief Justice at the time of sentence.  He argued that a discharge without conviction was the appropriate sentence.
First ground:  inappropriate consideration to whether the relevant property was indeed stolen
16. 	Theft is defined at s 161 of the Crimes Act 2013.  It is the act of “dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property”.  Therefore, Mr Toala had specifically pleaded guilty to dishonestly taking the items with an intent to permanently deprive his employer of them.  
17. 	Section 17(1) of the Sentencing Act 2016 provides:
	17. Proof of facts–
	(1) In determining a sentence or other disposition of the case, a court:
	(a) 	may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the defendant; and
	(b) 	must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
18. 	It is a well-recognised principle set out in s 17(1)(b) that a defendant cannot put forward a factor in mitigation that is inconsistent with the charge they have been convicted of. The principle was considered in New Zealand by the Court of Appeal in Gathergood v R. Section 17(1) is virtually identical to s 24(1) of the New Zealand Sentencing Act 2002. The main charge was that the appellant had unlawfully discharged a firearm. The appellant had been convicted on this basis.  In his factual summary, the sentencing Judge had found that although the appellant in that case did not actively try to encourage the firing of the shotgun he nevertheless knew also there was a shotgun in his co-offender’s hand and said that he was going to use it. Counsel had submitted in the Court of Appeal that on a proper evaluation of the facts as a whole, the appellant was, at the crucial moment, attempting to extricate himself from the situation that had developed. This should have resulted in a lower starting point. In rejecting that ‘extricating’ submission, the Court of Appeal, using the word “withdrawal” in substitution for the earlier word ‘extricating’ commented:
	We consider that the withdrawal contention is unsustainable. In the first place, it is inconsistent with the plea of guilty to being a party to JM’s act in discharging the firearm with reckless disregard. Section 24(1)(b) of the Sentencing Act 2002 requires a sentencer to accept as proved “all the facts, express or implied, that are essential to a plea of guilty …”. Acceptance of the factual interpretation urged before us would run foul of this provision.
19. 	Section 17(2) provides a procedure where there is a dispute on a matter of fact at sentencing. It states:
	(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by 1 party and disputed by the other:
	(a) 	the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case;
	(b) 	if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial;
	(c) 	any fact in dispute must be established to the satisfaction of the judge;
	(d) 	either party may with the leave of the judge cross- examine any witness called by the other party.
20. 	It follows that in no circumstances was it open to Mr Toala to raise mitigating factors contrary to those that were essential in supporting his plea of guilty.  Doing so would directly contradict that which he had admitted; that he had taken the equipment with a dishonest intent to deprive.  The Police Summary of Facts was the source of facts for the Court unless s 17(2) applied.  
21. 	Mr Toala in his affidavit of 6 March 2024, stated that he was underpaid by his employer, that the value of what he was deprived of some SAT$93,000, and that he used his own equipment. Effectively he said that his actions reflected the injustice of being overworked and grossly underpaid.  Before us the pre-sentence report was quoted by counsel for Mr Toala. The assertion that the respondent had taken the equipment home to finish his work with the consent of his employer was put to us (based on assertions in the pre-sentence report which appear to have come directly from Mr Toala, who narrated them to the probation officer, who accepted them). 
22. 	In the pre-sentence report, the probation officer wrote that Mr Toala was shocked to have the machine demanded back from him and said that “he had no intention of stealing the machines”. Mr Toala said he had taken the machine home with his employer’s consent. The probation officer puts the event down to a “misunderstanding” in relation to the usage of the machine and that Mr Toala’s employer had consented to him having the machine at home.
23. 	It was stated in the report that the probation officer did not have the Police Summary of Facts before him.  The probation officer does not seem to be aware that the respondent had on-sold the equipment.  
24. 	Before us, the pre-sentence report was quoted at paragraph 13 of the respondent’s submissions. It had also featured in Mr Toala’s submission before the Chief Justice.  However plainly the s 17(2) procedure was not referred to or followed in the Supreme Court.  Such unresolvable factual issues after or before a hearing related to sentence are sometimes referred to as “Disputed Fact Hearings”. In the absence of such a hearing, the pre-sentence report, relying as it did on information from Mr Toala and without the benefit of a Summary of Facts, entirely lacked any evidential value.  Similarly, Mr Toala’s affidavit, discussed above, should have been subject to the considerations of s 17(2).  Without the section being considered, the affidavit equally had little value.
25. 	In the absence of any reference to s 17, it may be that the Chief Justice disregarded Mr Toala’s affidavit on the basis that it was, on its face, clearly not a credible document. Certainly in our view it should have been rejected for three reasons.  First, it was not believable. Mr Toala claims he ran up $93,000 of work between November 2022 and March 2023. This would equate to 13,285 hours of work at $7 per hour. This is equivalent to 332 weeks of work at 40 hours per week. The claim was plainly absurd given that he worked for his employer for only four to five months.  Second, no corroboration provided for Mr Toala’s unlikely factual claims.  Third, Mr Toala contradicted himself. He states at paragraph 8 “I am not denying that I stole the items” while simultaneously claiming he had a right to take them.  Mr Toala discredited his own assertions.
26. 	As against that affidavit, there was the concise and clear factual summary provided by the Police at the time of sentencing. The document headed “Summary of Facts” sets out key points relating to Mr Toala’s employment as a casual worker.  The document refers to the fact that expensive media equipment was securely locked in a cabinet by his employer and that all employees were restricted from taking the equipment home.  It refers to the discovery of the missing equipment, and the defendant’s affirmation that he had taken the equipment home and thereafter chosen to not return to work.  It refers to Mr Toala giving no explanation for his non-appearance at work save a general reference to dissatisfaction with his employment. The value of the stolen equipment was given as SAT$7,000.  Police recovered the items from two individuals to whom Mr Toala had sold the stolen equipment.  It is not clear what the exact sale values were, but in any event, they appear to be agreed. 
27. 	It follows: 
(a) 	There was a clear Summary of Facts that contained all the elements of theft as a servant, and could be relied upon pursuant to s 17(1)(a) of the Sentencing Act;
(b) 	At the time of conviction, that Summary of Facts stood unaltered, despite Mr Toala’s contradictory submissions. It has never been challenged, and was not referred to in Mr Toala’s submissions; and 
(c) 	Section 17(2) was not invoked and in our view there was no basis for it to be invoked given the lack of credibility of Mr Toala’s affidavit.
28. 	On the face of this, there was no basis on which the Summary of Facts should not have been wholly accepted on sentencing.  The assertions in the pre-sentence report should have been rejected, as should Mr Toala’s affidavit where it contradicted the Summary of Facts.
29. 	We uphold the first ground of appeal.
Second ground: incorrect to give consideration to a “colour of right” defence
30. 	At paragraph 13 of the sentencing judgment the Chief Justice stated that although Mr Toala had not pursued the defence of colour of right: 
	I cannot in the interest of justice turn a blind eye to the possibility that the defendant sold the equipment to recover what he considered to be unpaid wages.
31. 	The concept of “colour of right” is used to denote an honest belief in a state of facts which, if it actually existed, would, as a matter of law, justify or excuse the act done.  Prior to its repeal, “colour of right” was defined in New Zealand as:
	… an honest belief that the act is justifiable, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
32. 	However, as discussed above, there was no credible evidence indicating that Mr Toala had a “colour of right” to the equipment. Mr Toala’s assertion that his employer owed him SAT$93,000 lacked credibility entirely. There was no corroborating evidence.  Further, as we have set out, if Mr Toala had an honest belief that he was entitled to take and sell the equipment, this ran directly contrary to that which was stated in the Summary of Facts, which was the basis of his conviction. 
33. 	Therefore, there was no factual basis for the Chief Justice to have taken into account a possible defence of colour of right and to do so would be contrary to s 17(1)(b). 
34. 	We uphold the second ground of appeal.
Third ground: failure to take into account relevant aggravating factors
35. 	There were plainly a number of aggravating factors which were referred to by the Chief Justice:
(a) 	The offender’s abuse of trust, which is inherent in almost every instance of theft from an employer;
(b) 	A degree of planning and pre-meditation. The prosecution submits that the Court can draw an inference from the way in which the property was taken without the employer’s permission that the defendant had no intention of returning it;
(c) 	That the defendant sold the two items separately; and
(d) 	That the stolen items were of high value (SAT$7,000.00) and belonged to a Church.
36. 	The Chief Justice did not appear to take issue with these matters as aggravating factors confirming a serious abuse of trust involving serious dishonesty, and nor do we.
37. 	However these factors do not appear to have been weighed adequately when the proportionality assessment was carried out.  In our view, on which we expand below, they outweighed any sympathy for a wrongful belief in “colour of right”.
38. 	We uphold the third ground of appeal.
Fourth ground: sentence imposed was manifestly inadequate
39. 	We can see no mitigating factors that would take this offending out of the standard range for sentencing a theft as a servant of this amount of money. We do not consider the claim of colour of right a mitigating factor – as we have already stated, we find the explanations on which it is based improbable and contrary to the plea of guilty. We disregard them in light of s 17(1)(a).
40. 	We have had helpful submissions on the sentencing ranges for this kind of offending.   Sentencing judges in Samoa frequently make statements like this:
	The courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is to not only deter the offender himself/herself from such future behaviour but also others who may be tempted to follow his/her example. There are no exceptional circumstances present in this case to depart from the normal sentencing practice and the only question for me how long is an appropriate term for these offences.
41. 	Sentences range from 18 months’ imprisonment to lengthy periods of supervision.  A discharge without conviction is plainly a manifestly inadequate sentencing response, absent an exceptional factor.
42. 	We uphold the fourth ground of appeal.
Fifth ground: error in application of the test for discharge 
43. 	The test for discharge without conviction is set out in ss 69 and 70 of the Sentencing Act 2016. Those sections come close to replicating the New Zealand Sentencing Act’s ss 106 and 107. Section 70 states that the Court must not discharge without conviction unless the Court is satisfied the direct and indirect consequences “would be out of all proportion to the gravity of the offence”. It is to be noted that the section is mandatory, with it being stated that the Court “must not” grant a discharge without conviction unless the test is met. Even when the offender satisfies the requirements of s 69, there remains an overriding discretion whether to discharge under s 70. 
44. 	This Court, in considering a discharge without conviction, has adopted an approach involving four steps:
(a) 	Identify the gravity of the offending including aggravating and mitigating factors relating to both the offence and the offender.
(b) 	Identify the direct and indirect consequences of a conviction.
(c) 	Determine whether those consequences would be out of all proportion to the gravity of the offending.
(d) 	Decide whether the overriding discretion conferred by s 106 should be exercised.
45. 	We are firmly of the view that it would be out of all proportion to the gravity of this moderately serious example of theft as a servant for there to be a discharge without conviction. The direct and indirect consequences of a conviction are relatively predictable and unspecific. Mr Toala works with high-tech equipment in a small industry.  We accept Mr Toala’s job prospects will be affected.  However we have no convincing evidence that those prospects would be disproportionately worsened by the entry of a conviction.  Further, we note that following his conviction, Mr Toala appears to have obtained reasonably satisfactory employment as the foreman and driver for Lamoko Mixed Farm.  There is no exceptional factor here.
46. 	It would be out of all proportion for this moderately serious offending to be outweighed by Mr Toala suffering vaguely-stated inconveniences following conviction. A guilty plea is a mitigating factor, but nevertheless does not come close in it itself to making a discharge without conviction an option.  In contrast, there is an obvious public detriment in employees who are trusted with valuable items escaping conviction for admitted theft on the basis of vague assertions of colour of right.
47. 	We uphold the fifth ground of appeal.
Conclusion of appeal against discharge
48. 	We conclude the five grounds of appeal are established.  The effects of conviction will not be out of all proportion to the gravity of the offence.  The sentence was manifestly inadequate and must be quashed.  
The way forward
49. 	We raised briefly with Mr Lawrence whether we should remit this sentencing back to the Supreme Court or deal with it ourselves. We acknowledge that Mr Toala has enjoyed a period of liberty relying on the discharge and that the late imposition of a custodial sentence would be unnecessarily harsh unless a less severe sentence was not reasonably available.  There would be the added stress and cost of another hearing.  We have decided therefore that it would be in the best interests of all parties for this Court to impose a substitute sentence on this appeal.
50. 	In the course of submissions in the Supreme Court and in this court, we were provided with various relevant sentencing authorities arising from conviction for theft as a servant. These show a range of starting points and sentences of imprisonment: 18 months’ imprisonment for a theft of SAT$4,900 in Police v Sooalo, a starting point two year’s period of imprisonment in Police v Wulf involving a theft of water pumps worth SAT$6,500, a sentence of 18 months’ supervision for the theft of money worth SAT$7,400 in Police v Soonalole.  We also bear in mind the principle that successful sentencing prosecution appeals should involve a substitute sentence being imposed at the lower end of the sentencing range.
51. 	Bearing in mind these circumstances we find that a sentence of 18 months’ supervision and 50 hours of community work is appropriate. 
RESULT
52. 	The appeal is allowed. The sentence of discharge without conviction is quashed. Mr Toala is convicted and sentenced to 18 months’ supervision and 50 hours of community work.
JUSTICE HARRISON
JUSTICE ASHER
JUSTICE YOUNG