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Police v Nofoaiga [2007] WSSC 47 (15 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ONOSA’I NOFOAIGA
male of Falese’ela Lefaga.
Accused

Counsel: K Koria for prosecution
T V Eti for accused

Sentence: 15 June 2007

Sapolu, CJ

SENTENCE

The charges

The accused appears for sentence on 95 counts of theft as a servant each of which carries a maximum penalty of seven years imprisonment and 65 counts of falsifying accounts each of which carries a maximum penalty of five years imprisonment. The accused originally pleaded guilty to all counts but subsequently on two separate occasions sought unsuccessfully to vacate his guilty plea and to have it substituted with a not guilty plea.

The accused

The accused is a 39 year old male from the village of Falese’ela. He is married with four children aged between four years and fourteen years. At the times the accused committed the offences for which he is now appearing for sentence, he was employed by the Polynesian Airlines Ltd as a supervisor/senior accounts clerk in the accounts receivable section of its finance division. He is a first offender.

The offending

As it appears from the summary of facts prepared by the prosecution, on 95 separate occasions starting from 8 December 1998 to January 2003, the accused in his capacity as supervisor/senior accounts clerk in the accounts receivable section of the finance division of his employer, the Polynesian Airlines Ltd, unlawfully took sums of money which ranged from $40 to $15,000 that belonged to his employer. On about 38 separate occasions, the accused took various sums ranging from $40 to $1,000. On about 45 separate occasions, the accused took various sums ranging from $1,033 to $3,000. On 5 separate occasions, the accused took various sums ranging from $3,372 to $5,104. On 4 separate occasions, the accused took various sums from $6,225 to $11,076. And on 3 separate occasions the accused took the sums of $12,000, $14,000 and $15,000.

It would appear from the summary of facts that on 65 separate occasions when the accused unlawfully took sums of money from his employer, he falsified his employer’s accounting records to conceal his fraudulent actions. These falsifications of his employer’s records are the subject of the 65 counts of falsifying accounts.

I should note here that the defence contributed in a not insignificant way to the delay in finalizing this matter.

Aggravating features

There are several aggravating features in this case. They are all set out in the sentencing memorandum submitted by counsel for the prosecution. The total amount of $183,604.63 which was unlawfully taken by the accused is very substantial. That was done not on one occasion but on 95 separate occasions which spread over a period of four years from 23 December 1998 to January 2003. The accused on a number of occasions concealed his fraudulent actions by falsifying his employer’s accounting records. It shows that the accused engaged himself in a calculated, methodical, and sustained course of conduct to defraud his employer. The accused also occupied a senior position of financial trust being the supervisor/senior accounts clerk in the accounts receivable section of the finance division of his employer. The accused had seriously abused his employer’s trust.

Mitigating features

I give limited credit to the accused for the fact that he is a first offender because of the general need for deterrence in this case.

After careful consideration, I have also decided to give only limited credit to the accused for his plea of guilty. After the accused had pleaded guilty to the charges, he twice applied unsuccessfully to vacate his guilty plea and have it replaced with a not guilty plea. He also told the probation service that he is innocent. All of this is no indication of remorsefulness on the part of the accused. My reasons for denying the accused’s applications for withdrawal of his guilty plea are set out elsewhere.

The decision

Counsel for the prosecution has sought from the Court a sentence of at least 4½ years imprisonment. Having regard to the aggravating and mitigating circumstances, the need for deterrence in this type of case and the maximum penalties of 7 years imprisonment for theft as a servant and 5 years imprisonment for false accounting, I have decided to impose the following sentences applying the totality principle:

(a) For each of the theft as a servant charges which involve sums of $12,000, $14,000 and $15,000 the accused is sentenced to 4½ years imprisonment.

(b) For each of the theft as a servant charges which involve sums of money ranging from $6,225 to $11,076, the accused is sentenced to 3½ years imprisonment.

(c) For each of the theft as a servant charges which involve sums of money ranging from $3,372 to $5,104 the accused is sentenced to 3 years imprisonment.

(d) For each of the theft as a servant charges which involve sums of money ranging from $1,033 to $3,000 the accused is sentenced to 2 years imprisonment.

(e) For each of the theft as a servant charges which involve sums of more than $500 and up to $1,000, the accused is sentenced to one year imprisonment.

(f) For all other theft as a servant charges, the accused is sentenced to 6 months imprisonment.

(g) For each of the false accounting charges the accused is sentenced to 2 ½ years imprisonment.

All the sentences are to be concurrent so that the accused will effectively serve only a sentence of 4½ years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Tuimaleali’ifano Law Firm