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Police v Ulupoao [2007] WSSC 21 (28 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

VALERIE ULUPOAO
female of Satapuala.
Accused

Counsel: L M Su’a for prosecution
K Drake for accused

Sentence: 28 March 2007

SENTENCE

The charges

The accused appears for sentence on two charges of theft as a servant each of which carries a maximum penalty of seven years imprisonment and two related charges of forgery each of which carries a maximum penalty of five years imprisonment. To the charges the accused pleaded guilty at the earliest opportunity.

The offending

According to the summary of facts admitted by the accused, on Wednesday 25 October 2006, the accused in the course of her employment with Leifiifi Travel and Tours removed a cheque leaf from her employer’s cheque book, wrote on it the amount of $600, forged her employer’s signature on the cheque, and later cashed the cheque at the Westpac bank. The accused then took the money for her personal use. On Friday, 27 October 2006, the accused removed another cheque leaf from her employer’s cheque book, wrote on it the amount of $450, forged her employer’s signature on the cheque, and later presented the cheque to a rental car company for payment of the rental of a car she had used. The total amount stolen by the accused was $1,050.

The accused

The accused is a 21 year old female from the village of Satapuala. She is married and has a three year old daughter. As it appears from the pre-sentence report, the accused told the probation service that the amount of $600 which took was given to her husband’s family which was going through some financial difficulties at the time. As to the amount of $450 which she took, the accused told the probation service that that money was used to pay for a rental car that she and other girls had used to go out for one night.

It also appears from the pre-sentence report that the accused was a hard working employee but she is somewhat lacking in maturity. At the time these offences were committed, the accused was having marital problems with her husband. She receives no income or other benefits from her husband. The accused is also a first offender and was a person of good character prior to the commission of these offences.

It also appears from the pre-sentence report and a letter from the accused’s employer that the accused’s parents have apologised to the accused’s employer and their apology was accepted. The total amount which was taken by the accused has also been repaid in full. The accused’s employer has also offered to re-employ the accused and to give her a second chance.

Relevant sentencing considerations

In the case of R v Barrick (1985) 81 Cr. App. R. 78 at pp. 81-82, the English Court of Criminal Appeal said in relation to sentences to be passed in respect of certain types of fraud cases including thefts committed by employees in positions of trust:

"In general a term of immediate imprisonment is inevitable, save "in very exceptional circumstances or where the amount of money "obtained is small. Despite the great punishment that offenders of "this sort bring upon themselves, the Court should nevertheless "pass a sufficiently substantial term of imprisonment to mark "publicly the gravity of the offence. The sum involved is "obviously not the only factor to be considered, but it may in many ‘cases provide a useful guide. Where the amounts involved cannot "be described as small but are less than $10,000, or thereabouts, "terms of imprisonment ranging from the very short up to eighteen "months are appropriate (see for example Weston (1980) 2 Cr. "App. R. (S) 391)...

"In any case where a plea of guilty is entered however the Court "should give the appropriate discount...

"The following are some of the matters to which the Court will no "doubt wish to pay regard in determining what the proper level of "sentence should be: (i) the quality and degree of trust reposed in "the offender including the rank; (ii) the period over which the "fraud or the thefts have been perpetrated; (iii) the use to which the "money or property dishonestly taken was put; (iv) the effect upon "the victim; (v) the impact of the offences on the public and public "confidence; (vi) the effect on fellow employees or partners; (ix) "those matters of mitigation special to himself such as illness, "being placed under great strain by excessive responsibility or the "like...

See the subsequent case of R v Clark (1998) 2 Cr. Ap. R. (S) 95 where the amounts stated in R v Barrick have been increased. Both these cases are referred to in Police v Taala [2005] WSSC 28.

In Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner, it is stated in p. 343 in respect of sentences passed in cases of fraud and theft committed in the cause of the accused’s employment:

"In assessing the severity of the conduct, the amount of money or value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued and the amount of restitution are important considerations. The degree of trust given to the defendant is a particularly important factor so that cases of employment in a position of financial trust are more seriously regarded than cases of employees who are not so employed but steal in the course of their employment. In cases of abuse of a position of trust, good character and an absence of prior convictions are typical and have little weight because of the expressed need for a general deterrent sentence. Nor do an immediate intention to repay, financial loss to the offender and personal humiliation have significant weight for they are all factors commonly encountered in cases of theft from an employer involving deception over a period of time."

The matters referred to in the passages cited from R v Barrick (1985) 81 Cr. App. 78 and Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner may not all exist in a particular case. But where any or some of them exist in a particular case, then they are relevant to consideration of the level and nature of the sentence to be imposed.

Mitigating features

The principal mitigating features in this case are the accused’s plea of guilty at the earliest opportunity and the fact that full restitution has been made. Another mitigating feature is the fact that the accused was a junior employee and did not occupy a position with a high degree of trust placed in her. Even though previous good character and the absence of prior convictions carry little weight in this type of case compared to other types of cases, they still carry some weight. The parents of the accused have also apologised to the accused’s employer and their apology was accepted. The fact that the accused’s employer has offered to re-employ the accused shows that this matter has been settled between the employer and the accused. It also appears from the pre-sentence report that at the time the accused committed these offences, she was having marital problems with her husband from whom she receives no income or any other benefit.

Counsel for the accused in her plea in mitigation referred to the fact that the accused has a 3 year old daughter. However, counsel also properly mentioned that the accused’s daughter is looked after by the accused’s parents. On this type of issue, which often arises in sentencing matters, it is stated in Sentencing in Tasmania (supra) at p. 115:

"Hardship to the offender’s family is usually given very little "weight as a mitigating factor; it is regarded as part of the price to "be paid for committing a crime. So, in Sullivan (serial No. "9/1975), it was stated that where the public interest requires a "prison sentence, substantial or otherwise, that sentence must be "imposed despite the regrettable hardship which innocent members "of the family will suffer. But exceptional hardship other than "financial may be relevant, and where the offender is a single "parent or the imprisonment of both parents would leave children "without parental care, Courts have adopted a more sympathetic "attitude. The circumstances, however, must be truly extreme or "exceptional."

Sentences passed in recent comparable cases of theft as a servant

In Police v Taulapapa [2002] WSSC 24, a 20 year old first offender was sentenced by Cooper J to 9 months imprisonment after a guilty plea for stealing a total amount of $2,500.

In Police v Auina [2006] WSSC 49, a 19 year old first offender was sentenced by this Court to 10 months imprisonment after a guilty plea for stealing a total amount of $5,000.

In Police v Sosaiete [2006] WSSC 26, a 27 year old was sentenced by this Court to 18 months probation after a guilty plea for stealing $517.80.

In Police v Filipo [2007] WSSC 18, a 22 year old was sentenced to 7 months imprisonment after a guilty plea for stealing a total amount of $1,607.

Whilst sentences passed in other jurisdictions are not binding on the Samoan Courts, it may be of interest to note from Sentencing in Tasmania (supra) at p. 343 that in cases of theft as a servant in Tasmania in the period 1990-2000, only 68% of those cases where the total amounts stolen was $10,000 or less received custodial sentences. Those custodial sentences ranged from 3 months to 12 months with a median of 6 months.

Aggravating features

There was a breach by the accused of her employer’s trust even though the degree of trust that was placed in the accused by her employer was at the low end of the scale given that she appears to have been a junior employee. The degree of criminality involved in the charges against the accused would also have to be considered. There was not only theft but forgery. I would also not describe the total amount of $1,050 that was taken by the accused as "small" even though it is much less than the total amounts involved in some of the theft as a servant cases that have come before the Courts.

The decision

In determining the appropriate sentence for this case, I take into account the mitigating and aggravating features as well as the sentencing considerations which are relevant including the need for deterrence in this type of case. In consequence, the accused is convicted and sentenced to 5 months imprisonment on each of the charges against her. All sentences are to be concurrent.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Drake & Co for accused