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Police v Taualiifiso [2013] WSSC 131 (28 October 2013)

SUPREME COURT OF SAMOA

Police v Taualiifiso [2013] WSSC 131

Case name: Police v Taualiifiso

Citation: [2013] WSSC 131

Decision date: 28 October 2013

Parties: POLICE v MALUA TAUALII FISO, male of Tafua-Tai and Papauta (First defendant) and OPETAIA OPETAIA male of Aele-Fou and Patamea (Second Defendant)

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
F Lagaaia and O Tagaloa for prosecution

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution
AND
MALUA TAUALII FISO, male of Tafua-Tai and Papauta.
First defendant
AND
OPETAIA OPETAIA male of Aele-Fou and Patamea.
Second Defendant

Counsel: F Lagaaia and O Tagaloa for prosecution
Defendant unrepresented
Sentence: 28 October 2013

SENTENCE

1. The police summary of facts which both defendants have accepted states that the first defendant Malua Taualii Fiso is 23 years old single from Tafua-tai and Papauta. The second defendant Opetaia Opetaia is 34 years old of Aele-fou and Patamea in Savaii married with three children. Both defendants like all Samoan men have immediate and extended families that rely on them. And they have both secured temporary employment pending the outcome of this case.
2. At the time of these offences they were employed by the Samoa Red Cross Society. Needless to say they were dismissed by the Society as a result of their offending. Because they have been charged with stealing from the Society. Malua faces five counts of theft as a servant and Opetaia two counts. At the time Malua was a casual worker for the water and sanitation program. Opetaia was the manager for the program.
3. Their offending took place from January to March 2013 following the aftermath of tropical cyclone Evan. As we all know that was a time of great hardship for the community and the country and the Red Cross was engaged in the very fruitful work of distributing materials as part of its emergency and recovery response. These two gentlemen took advantage of their positions in the Red Cross to steal from the Society at that time. Taking materials that had been donated by aid donors and other people to help the country recover from the cyclone.
4. In respect of the first named defendant Malua Fiso the summary of facts from the police states that during the month of March he stole a water tank from his employers premises and sold it for $800.00. The tank was a 500 litre tank valued at $2,750.00. During the month of February 2013 he stole another tank and sold it to a gentleman at Savalalo for $130.00. In the month of March he did the same thing selling this tank for $140.00. In the same month he stole two further tanks and sold them for $500.00. In total he stole five tanks to a total value of $15,750.00.
5. The other defendant Opetaia Opetaia during the month of January 2013 stole building materials belonging to the Red Cross Society. These building materials comprised lengths of timber, bags of cement, roofing iron, sheets of plywood and brackets to a total value of $1,760.00. During the same month of January 2013 he also stole a 500 litre Rota water tank valued at $2,750.00 and sold that to someone at Vaitele. Total value of the materials he stole was $5,846.00.
6. When the Red Cross conducted a review of its projects it discovered the missing materials and tanks. An internal investigation was carried out and the matter traced back to the two defendants. Society accordingly reported it to the police who conducted their investigation and this has led to this charges being brought against the two defendants. Charges to which they have pleaded guilty. Both defendants are first time offenders before the court.
7. The courts sentencing policy in respect of people who steal from their employers is well known. Deterrent sentences of imprisonment are normally the result. The law will not tolerate this sort of behaviour which is far too common in our country. The defendants are perhaps a little fortunate that they are being dealt with under the previous crimes legislation which has a maximum penalty of only 7 years in prison as opposed to the current legislation which has a maximum penalty of 10 plus years.
8. Having reviewed the cases of both defendants there is no reason why the usual sentencing policy should not be applied to the two of you. In fact gentlemen considering that you stole from a society engaged in humanitarian aid projects there is every reason to apply the sentencing policy to you. In effect you were not stealing from the society you were stealing from the people who needed it in this country.
9. Firstly I will deal with you Malua and the five counts of theft as a servant against you. You stole tanks worth $2,750.00 each and sold them at a greatly reduced price. You kept the money for your own personal use and benefit. Those buyers who received such goods if they knew such goods were stolen or reasonably suspected them to be stolen should also have been charged. But that is a matter left to the police to consider. One thing is clear gentlemen that these properties you stole were properties donated for hurricane and cyclone relief. That aggravates your offending.
10. The law says the maximum penalty for what you did is 7 years in prison Malua. Considering all circumstances of your matter an appropriate start point would be 3 years in prison. From that I will deduct one-third of the sentence to reflect the fact that you have pleaded guilty and to reflect your remorse. That is a deduction of 12 months from the start point leaves a balance of 24 months. You are also entitled Malua to a deduction for your good previous character and the fact that this is your first offence. For that I will deduct 6 months. Leaves a balance of 18 months. There are no other deductions Malua you qualify for.
11. For these charges you will be convicted and sentenced to 18 months in prison for each charge. All terms are to be served concurrent so you will serve 18 months.
12. Opetaia you have pleaded guilty to stealing one water tank and $1,760.00 worth of building materials. Total value of the goods you stole was $5,846.00. That is less in value compared to Malua. But your offending was committed while you held a senior position. You were the manager for this program. That is a position of trust within the society and carried a greater degree of responsibility. Greater honesty was required of you to make sure that the people beneath you did not indulge in this sort of behaviour. For those reasons Opetaia I am going to apply to your case the same start point applied to your co-defendant Malua namely 3 years in prison. You are entitled to the same discounts one year for your guilty plea and 6 months for your previous good character and behaviour.
13. For these two charges against you Opetaia you are convicted and sentenced to 18 months in prison for each charge but the terms will be served concurrent so that you serve a total term of 18 months in prison.
    

.........................
JUSTICE NELSON