THE SUPREME COURT OF SAMOA
 Police v Tolai [2015] WSSC 120

Case name: 	Police v Tolai	
		
Citation: 	[2015] WSSC 120	
		
Decision date: 	9 April 2015	
		
Parties: 	Police (prosecution) and Fata Atene Tolai, male of Tufulele (defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Justice Aitken	
		
On appeal from:		
		
Order:	Twelve months’ imprisonment	
		
Representation: 	P Chang and O Tagaloa for the Prosecution
T Peniamina for the Defendant

Catchwords: 	theft as a servant –pre-meditated – no reparation to victim 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Police v Amato Faasao & Others
Police v Lelea Afualo

		
Summary of decision:		

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P  O  L  I  C  E
Prosecution

AND:

FATA ATENE TOLAI
male of Tufulele
Defendant

Counsel:	
P Chang and O Tagaloa for the Prosecution
T Peniamina for the Defendant

Sentence:	9 April 2015
oral SENTENCE of justice e m aitken
1. 	Fata Atene Tolai, you have pleaded guilty to two charges of theft as a servant.  At the time you were employed by SMI Hardware and you have pleaded guilty to a charge of theft of 300 rebars with a total value of $8,400; and theft of two mild steel plates, a total value of $810. 
2. 	As to the facts: you were employed as a Supervisor of the steel stockyard of SMI, where you were responsible for checking and releasing paid goods to customers, to checking the delivery trucks and for looking after the steel products stored in the yard.  Now sometime in October, you gave three bundles of metal rebars to a man named Laloata Fata in return for $3,000.  The value of those goods to the company was $8,400 and you certainly did not account to SMI for even the $3,000 you received.  The following month, on 17 November, you gave or permitted Fata Siaosi to remove two mild steel packs, to the total value of $810.  There is no evidence or information to suggest that you received any particular benefit in respect of that but clearly another loss to your company.  
3. 	Now the maximum penalty, Mr Tolai, for each of offence is 10 years imprisonment and I will start by considering the appropriate sentence in respect of the theft of the metal rebars as that is the most serious of the two offences given the amount involved.  A starting point of imprisonment is inevitable as this Court has made it clear time and time again that the usual penalty for theft as a servant must be imprisonment unless there are exceptional circumstances, and this is because the Court regards general deterrence as a primary purpose of sentencing for such offences because of the prevalence of this sort of behaviour in Samoa at the present time.
4. 	In terms of the aggravating factors of this offending, it was clearly premeditated.  It was not, however, particularly sophisticated; the matter was reported as soon as or shortly after the truck left the yard with the goods on it.  Obviously, a loss of $8,400 is a reasonably significant loss and you, at the time, were an employee of some 10 years experience at SMI.  In my view, implicit in the charge of theft as a servant, is a degree of breach of trust but what makes your position worse is that you were someone, as I had said, who had been employed for 10 years and you were employed in a supervisory role – in other words, your employers should have been able to look to you to honestly supervise those working under you, and it is because of that that there is an aggravating factor in terms of the breach of the trust they would have placed in you.  
5. 	I also have to have regard to the impact on SMI; they lost the goods and the value of the goods and their concern was that you set a very poor example to those people working under you.  Five people in all were dismissed from the steel yard and certainly, the company believes that the others were involved in aspects of this offending with you (although that is not a matter before the Court).  They have also incurred the cost of reinforcing the yard gates and acquiring security cameras and making staff changes, so your offending has really come at a considerable cost to your employer.  
6. 	I have been referred by both of the lawyers to a number of similar cases of theft as a servant but two of these, I find, to be particularly useful in assisting me in setting the starting point.  The first is the matter of Police v Amato Faasao & Others, where Mr Faasao was the primary offender and stole items from the Bluebird Hardware store.  On two occasions, he took items; the first, building materials to the value of $8,600, and in the second occasion, worth $3,000.  For both offences, the Chief Justice set the starting point at 2 ½ years.  The other is the case of Police v Lelea Afualo, where there were 3 incidents of theft as a servant (again, from the Bluebird stores); three separate amounts totaling close to $12,000 and Justice Nelson fixed a starting point of 4 years imprisonment.
7. 	Now having regard to those cases, to the aggravating factors to which I have referred, I do not accept the starting point as fixed by the Attorney General at 12 months.  It is not in line, in my view, with those authorities, and in respect of the charge of the theft of the 300 rebars, I fix the starting point at 18 months imprisonment.
8. 	I turn then to the second offence; this occurred after the first and was for a lesser amount but with the same aggravating factors, and, in my view, your culpability or offending can be best reflected by increasing the starting point of 18 months to one of 2 years imprisonment.  From that 2 years, however, there are matters that permit me to reduce the penalty that you must serve.  
9. 	I have read carefully the Probation Report and your lawyer is very helpful with written submissions.  There are two matters that enable me to reduce the penalty from 2 years.  The first is your prior good character.  You are 54 years and you have a long working history where you undertook your employment without any dishonest behaviour or other offending.  You could therefore, prior to this behaviour, be described as a hardworking father and husband who was supporting his family, and the matai of your village comments that you were dedicated to village activities and to the church.  You have no prior convictions and I am satisfied that such a good work and social record should attract a reduction of 20% from the starting point – in other words, 5 months.  
10. 	You also apologised to the victim of your offending; you do this through your Counsel, here in Court, and of course, to some extent, that is reflected in your plea of guilty.  But there has been no formal apology; no formal ifoga process and while I accept you are remorseful, in my view, it should not attract any credit over and above the plea of guilty.  
11. 	You are not in a position to make any payment of reparation to the victim company; you are currently unemployed, as is your wife; you have a number of children that you both care for; and you do not have the financial means to pay reparation.  I do not intend to make a reparation order given that you will serve a term of imprisonment and at your age and stage in life, employment on release from imprisonment may be difficult to find.  
12. 	Finally, I am aware that you lost your job because of this and it may well be difficult to get work with such a conviction but unfortunately, Mr Tolai, that is the normal, natural consequence of your own behaviour and not a matter of mitigation.  You did, however, plead guilty to both offences at an early opportunity and I am advised that the maximum credit for a guilty plea in the law here in Samoa is up to one-third of the penalty; that would be a period of 7 months and that therefore reduces the sentence to one of 12 months imprisonment and the sentence of 12 months imprisonment is imposed therefore on the two charges, obviously, to run concurrently.
13. 	In the circumstances, I do not intend to then impose a sentence of supervision.  There are no rehabilitative needs identified and it is to be hoped, Mr Tolai, that the time spent in prison will adequately address the causes of your offending which appear to have been greed.
Thank you, you may stand down.

	_____________________
								JUSTICE E M AITKEN