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Police v Tevaga [2008] WSSC 53 (30 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PEPE TEVAGA
female of Tufuiopa.
Accused

Counsel: P Chang for prosecution
R Papalii for accused

Sentence: 30 July 2008

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on one count of theft as a servant which carries a maximum penalty of 7 years imprisonment. To the charge she initially pleaded not guilty. The case was then adjourned for hearing. After several adjournments, the accused withdrew her not guilty plea and substituted it with a guilty plea.
   

The offending

2. According to the summary of facts, the accused at the material time was employed as an audit consultant in the Customs Department under the Ministry for Revenue.
   
3. In that position the accused learnt about the system called Automated System for Customs Data or ASYCUDA. This system was operated by cashiers in recording and issuing receipts for payments made to the Customs Department. The monies paid to the cashier for customs were in relation to payments of customs duties and other fees. Payments made by the Customs Department to others were also recorded in the same system.
   
4. The accused had limited access to the said system. The cashier for customs is the only person who has the authority to enter and issue receipts for payments of customs duties and other fees. The assistant chief executive officer is the person with the authority to authorise payments out of the system.
   
5. On or about 6 September 2004, the accused went to the cashier with a government cheque from the Treasury Department to the Ministry for Revenue. She asked the cashier to leave her cubicle. When the cashier left her cubicle, the accused used the user name and details of the cashier to access the system. While in the system, the accused used the user name and password of the assistant chief executive officer to enter into the system an outward payment totalling $8, 345.75. This was without the authority or knowledge of the assistant chief executive officer.
   
6. After entering the outward payment of $8, 345.75 into the system, the accused took cash from the cashier totalling $8, 345.75. She took that money for her personal use.
   
7. The chief executive officer for the Ministry for Revenue was informed by another employee about the money that the accused had taken. The chief executive officer then approached the accused and told her to pay back the money. The accused about three weeks after taking the money paid it back in full.
   

The accused

8. The accused is a female of Tufuiopa and Leauvaa. She is her parents only daughter. She has a husband and two children. Given her date of birth in the pre-sentence report, she is now close to 34 years old.
   
9. It appears from the pre-sentence report that the accused has had a high level of education. She graduated with a Bachelor of Commerce degree from an Australian university in 1998 and was awarded with an advanced diploma in management from another Australian university at a later time. She was then 23 years old and appears to be quite an intelligent person. She is also a member of the Samoa Society of Accountants
   
10. Since the accused resigned from the Customs Department in 2005 because of the present offence, she has been a self-employed finance consultant. The testimonials from two of her clients show her as a soft-hearted, humble and compassionate person who is committed to the services she provides to her clients. The testimonials from the priest of the accused’s church and the pulenu’u of her village also speak highly of her.
    
11. The testimonial from the Ministry for Revenue shows that the accused was employed as an internal auditor and then as an audit consultant and in 2004 as acting assistant chief executive officer for the financial services when the incumbent for the position of chief executive officer for financial services retired. The same testimonial also shows the accused to have been a competent civil servant with a polite and quiet personality.
    
12. When the accused resigned from the Ministry for Revenue, she apologised to the Ministry for what she had done. She also showed remorse to the probation service when she was interviewed for the preparation of the pre-sentence report.
    
13. The accused is also a first offender.
    

Aggravating features

14. The accused was first employed in the Customs Department under the Ministry for Revenue in 1997. In July 2002 she was appointed as internal auditor. Her position was re-classified as audit consultant in October 2004. In November 2004 she was appointed acting assistant chief executive officer for financial services.
    
15. So when the present offence was committed on 6 September 2004, the accused was still an internal auditor. However, as it appears from the testimonial from the Ministry for Revenue the accused’s position was re-classified as audit consultant in October 2004 and appointed as an acting assistant chief executive officer in November 2004.
    
16. It is not clear when the offence was discovered but it is clear that the accused was someone on the rise in her work and was trusted by those who worked with her. She is obviously an intelligent and competent person. However, she abused the high degree of trust and confidence placed by others in her.
    
17. The way in which the offence was committed was also quite deliberate and the amount of money she took was not insignificant. These factors go to the degree of criminality involved in the offending.
    

Mitigating features

18. The fact that the accused is a first offender, that she had repaid in full the money she took, her remorse as shown by her apology to the staff members of the Customs Department and during her interview by the probation service, and her previously good and competent work record as shown from the testimonial from the Ministry for Revenue are all mitigating features. The assistance the accused had given the police in relation to another criminal and of which the Court has just been reminded is another mitigating feature.
    
19. I will also give the accused a discount for her guilty plea. But as it was a very delayed guilty plea, I will only give a 20% discount.
    

The decision

20. It is important that such an intelligent and competent person as the accused has had to appear before the Court on a serious charge. But that has been because of her own fault.
    
21. Due to the serious nature of the offending, I have decided to impose a custodial sentence in this case. I will take 18 months as the starting point for sentence. I will then deduct 20% for the guilty plea and that leaves 15 months. I will then deduct 6 months for the other mitigating features including the fact that the money had been repaid in full and the additional information about the accused assisting the police in another criminal matter and that leaves 9 months.
    
22. The accused is convicted and sentenced to 9 months imprisonment.
    

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
Toa Law Solicitors, Apia, for accused