IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FUIAVAILILI FAASAVALU
male of Falevai Falelatai and Saanapu.
Defendant

Counsels: Ms F. Vaai and Ms T. Nelson for prosecution
Mr G. Latu for the defendant

Sentence: 21 June 2010

SENTENCE OF NELSON J.

This defendant appears for sentence on 15 charges of theft as a servant totalling $7,698.70 all committed against the same complainant company on the same day. The defendant at the time was employed as a delivery supervisor and his responsibilities and duties include handling cash as well as checking stocks for delivery. It appears the defendant stole the money in order to finance a trip to Fiji to visit his Fijian wife and children who live there. He left the country the day after committing these thefts. 

The courts attitude to the offence of theft as a servant is very well documented and should by now be known to everyone. Imprisonment is the usual penalty unless there are circumstances requiring a different treatment. No such circumstances exist in this case.

For thefts as a servant in the range of those committed by this defendant the penalty for a first offender who has pleaded guilty are around the 9 month imprisonment range. The defendant is a first offender who has pleaded guilty to the charges against him. But notwithstanding that his counsel has asked the court to depart from that range and cited a number of factors in his argument. Factors that I must deal with:

1.	He said that the defendant was only employed for a few months by the complainant company and this is different to the normal range of cases where employees have worked for a substantial period of time for the companies involved in those cases. The suggestion being that because he worked for a short time for the company. The answer to that is the period to be considered does not affect the trust that was placed on the defendant which he has breached. What is culpable is the breach of trust and this applies whether the defendant is employed for a short period of time or for a lengthy period of time. It is more arguable that a short employment history is a bigger aggravating factor. But normally sustained offending merits a heavier penalty.
 
2.	Counsel also referred to the fact that this case is different because the defendant used the money to visit his family in Fiji and not on some other worthless pursuit such as food and drink. Again what should be understood is that what is being punished is the taking of the money not the use to which the money was put. The use to which such illicit funds are put is of limited value and only in cases where for example the monies were used to fund a life saving operation for a son or a sibling of a defendant. This is not such a case. Here the defendant used the money for personal gratification not for any noble purpose.

3.	Counsel also referred to the apology made by the defendant to the complainant. That is duly noted and indeed is evidence of remorse for offending but it must be counter-balanced by the absence of restitution for the companys loss. As the saying goes actions usually speak louder than words.

4.	I do agree with defence counsel that the defendant is not your average offender because he is well educated. But that actually operates against him because he should in my view have therefore known better. There is unfortunately an increasing number of well educated defendants coming before the courts on this sort of crime.

5.	As to the global economic crisis advanced by the prosecution as a relevant factor for sentencing I am in total agreement with counsels that is not an aggravating factor. That is perhaps an unfortunate use of the expression and I think what the prosecution were really talking about is the economic impact of offending such as this. Economic impact is a valid consideration considering the size of our country and our economy because the effects of thefts such as this are felt more in smaller communities than in larger ones. But the courts sentences should not go up and down depending upon recessions and such economic events. 

Personal circumstances of the defendant were also referred to by counsel but the authorities in this jurisdiction show these to be of limited importance for the purposes of sentencing in theft as a servant cases. I leave it to counsel to look up those authorities himself.

Having carefully considered your matter there is no reason in my view to increase or reduce the sentence for your matter from the general penalty range for thefts of this nature for amounts of this nature. As a total sentence therefore, you are convicted and sentenced to 9 months imprisonment in respect of all offences.

JUSTICE NELSON