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Police v Moke [2010] WSSC 129 (2 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

CLEOPATRA MUAVA'A MOKE,
female of Moamoa and Vailele.
Defendant

Counsels: Ms T. Nelson and Mr G. Patu for prosecution
Defendant unrepresented

Sentence: 2 August 2010

SENTENCE

This is another case of theft as a servant. The defendant in this case is a 31 year old female of Moamoa and Vaitele. She was at the time of this offending employed as a Recoveries Officer at the National Bank of Samoa.

The summary of facts which she accepts relates that her role as recoveries officer was to collect money from bank customers for loan repayments, issue receipts for such payments and lodge the payments to the relevant accounts. At the material times of the offending the defendant received various loan repayments and issued receipts therefore but failed to lodge the payments into the banks computer system or to the customers account. Instead she kept the money that was paid to her and applied it for her own personal use. The payments she received ranged from the smallest of $20 to the highest of $500 and the offending occurred over the February 2008 to November 2009 period some 20 odd months. The total amount at issue is $9,913.80 which the defendant has accepted and has pleaded guilty to stealing resulting in 109 counts of theft as a servant for which she now appears this afternoon for sentence.

Again the elements normally present in a theft as a servant case are to be found here, the gross breach of trust and the misuse of her position. Customers paid the defendant money to be applied to their loans but instead she kept it for herself and placed all these customers at risk of recovery action by her employer bank. Actions which usually result in the diminishing of confidence in institutions such as her employer bank. It is probably likely this offending would have continued if it had not been discovered by her employer.

I have read the pre-sentence probation report on your matter and I have listened to what she had to say to me in mitigation. I accept the defendant is remorseful and as confirmed by the probation office in their report she has apologized to her previous employer. I also accept her loan to the bank means she is in danger of losing her house and freehold property if she fails to upkeep payments and I also accept her young family is going to suffer if she goes to prison. But as stated in a case quoted in the earlier sentencing embarked on this afternoon the law is this:
"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."

These principles have been accepted and applied by this Court in cases such as Police v Ulupoao [2007] WSSC 21 and Police v Faiga [2007] WSSC 43. And in the latter case where it was said:

"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."

And more importantly for the particular case at hand:

"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."

I regret as does every sentencing judge the effect imprisonment will have on your young family Cleopatra for they are innocent debris of your offending. But the consequences of your actions have been brought on by the defendant herself no one else.

The defendant has asked that she be spared prison and be given an opportunity to repay what she stole. The difficulty with that submission is that even if all the money were repaid it only goes to reduce your time. The law says that by itself cannot save you from an imprisonment penalty. I do not doubt that the defendant will probably never do this again but she must now serve the sentence and take responsibility for the consequences of her actions.

Eighteen months in prison has been sought by the police for this matter. Considering the amounts involved and all the factors of your case I am in agreement that is an appropriate penalty and it is also consistent with the penalties imposed in cases similar to yours for similar amounts. Accordingly the defendant will be on these charges convicted and sentenced to 18 months in prison as a total sentence for all charges.

JUSTICE NELSON