SUPREME COURT OF SAMOA
Police v Fou [2015] WSSC 45

Case name: 	Police v Fou	
		
Citation: 	[2015] WSSC 45	
		
Decision date: 	28 April 2015	
		
Parties: 	POLICE (prosecution) v PANETA FOU (accused)	
		
Hearing date(s): 		
		
File number(s): 	S4201/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	The accused is sentenced to 6 months supervision and ordered to perform 50 hours community service.  He is also ordered to pay $100 costs to the prosecution in 7 days.

Representation: 	P Chang for prosecution
Accused in person 	
		
Catchwords: 	Theft as a servant – maximum penalty – early guilty plea – aggravating and mitigating features - sentence	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.163	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S4201/14

BETWEEN:

P  O  L  I  C  E
Prosecution

A  N  D

PANETA FOU male of Faleula and Moataa.
Accused

Counsel:	
P Chang for prosecution
Accused in person

Sentence:	28 April 2015

S E N T E N C E
The charge
1. 	The accused appears for sentence on one charge of theft as a servant, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment under s.163 (e).  To the charge, he pleaded guilty at the earliest opportunity.
The offending 
2. 	At the time of the offending, the accused was employed as a builder by Ah Liki Construction Ltd on the construction of a house at Vailoa, Faleata.  On Tuesday 2 December 2014 around 4:30pm in the afternoon, the accused and the other fellow employees finished work for the day.  A truck of Ah Liki Construction was parked outside the construction site to pick up all the employees to drop them off home.  The accused was the last to come out from the building under construction as he had waited for all other employees to leave the building before he packed thirty three building brackets into his bag.  The accused then carried the bag onto the truck where it was later found by his supervisor. When the supervisor opened the bag, it contained thirty three building brackets which were to be used on the house under construction.  The value of each bracket is $18.50 so that the total value of the stolen brackets is $610.
The accused
3. 	As shown from the pre-sentence report, the accused is a 36 year old male of Moataa and Faleula.  He is married with five children and resides with his wife and children at his wife’s family at Faleula.  He is an electrician and a builder.  He had been employed in the Electric Power Corporation and various construction companies before he took up employment with Ah Liki Construction as a builder.  As a result of this offending, he has been dismissed from his job.
4. 	The accused is also a first offender and the testimonials provided by his brother in law and the pastor of his church to the probation service show that he had been a person of good character prior to the commission of this offence.
5. 	The accused has pleaded guilty to the charge against him at the earliest opportunity.
The aggravating and mitigating features
6. 	Breach of trust by an employee of his employer’s trust is always involved in cases of theft as a servant.  It may therefore be argued that, except in special cases of abuse of trust or authority, breach of trust in an employer/employee relationship is a normal part of a charge of theft as a servant and such breach of trust should not be treated as an aggravating feature relating to an offending in such a case.  I will defer this point for further consideration in a future case.
7. 	In terms of mitigating features, the accused’s previous good character and early guilty plea are mitigating features relating to the accused as offender.
Discussion 
8. 	Having regard to all the circumstances, the accused is sentenced to 6 months supervision and ordered to perform 50 hours community service.  He is also ordered to pay $100 costs to the prosecution in 7 days.

Honourable Chief Justice