Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Malaefono [2016] WSSC 199 (20 October 2016)

THE SUPREME COURT OF SAMOA
Police v Malaefono [2016] WSSC 199

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TAUMULIOALII MALAEFONO male of Matautu Uta
Accused

Counsel:
F. Ioane for Prosecution
Accused in person

Sentence: 20 October 2016

S E N T E N C E

The charge

1. The accused appears for sentence on 11 counts of theft as a servant, contrary to s.161(a) and s.165(e) of the Crimes Act 2013. This offence carries a maximum penalty of 10 years imprisonment. He is also being sentenced on 12 counts of obtaining by deception with intent, contrary to s 196 of Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. He pleaded guilty to the offences on 29 August 2016.

The offending

3. According to the Prosecution summary of facts admitted by the accused, the accused was employed by Tradepac Marketing Samoa Limited at Vaitele as a delivery truck driver. His role and responsibilities included delivering good and products to various shops and collecting money from them. Upon receipt, he issues a receipt for payment. He was also allowed to make credit sales for the company, for which customers pay later. He collects these late payments.
4. On 12 separate occasions, the accused collected monies from customers and kept the money for himself. He would alter the invoices to reflect that the sale was still a credit sale when in fact they had been paid.
5. His offending took place between 13 May 2016 and 22 June 2016.
6. The total amount misappropriated is SAT$18, 964.20 on the following dates in the following amounts;
   1. 13 May 2016 $1236.00;
   2. 16 May 2016 $1916.80;
   3. 26 May 2016 $3514.20;
   4. 30 May 2016 $1009.60;
   5. 30 May 2016 $744.00;
   6. 9 June 2016 $2237.30;
   7. 10 June 2016 $2237.30;
   8. 15 June 2016 $2728.20;
   9. 20 June 2016 $688.20;
   10. 22 June 2016 $1329.80;
   11. 22 June 2016 $1323.80.

The accused

7. According to the pre-sentence report, the accused is 38 years old from Matautu-Uta. He is married and a father of four.
8. He reached Year 12 and left school as a result of his father’s illness. He was employed with the complainant company for 7 years and terminated as a result of his offending. He is currently employed as a taxi driver.
9. His wife, faifeau and village representative gave testimonials in favour of the accused. They say he is a good person who attends church and renders service to his village.
10. According to the pre-sentence report, the accused blames a former boss who has left the company for the offending.
11. There was a meeting held between the complainant company and the accused to discuss ways of paying back the money, but no money was ever paid back.
12. The accused is a first offender.

Victim

13. The victim impact report provided to the Court is in relation to the accountant of the complainant company, Sanesh Chand.
14. He says the actions of the accused caused him to be pressured by his superiors about non-payment of overdue cash sale invoices which meant he could not concentrate on other important matters.
15. There is a statement that the complainant company lost around $36, 347.88. However it must be noted that the amount misappropriated by the accused is less at $18,964.20.

Aggravating features of the offending

16. A significant aggravating factor is that the accused has breached the trust which was placed in him by his employer. As Sapolu CJ said in Police v Chadwick [2015] WSSC 15 (5 March 2015), cases of theft as a servant always involve a breach of trust by an employee of his/her employer’s trust in him/her. He went onto say that “often the important question is the quality and degree of trust placed by an employer in an employee”. The quality and degree of trust reposed in the offender including the rank is to be considered. In this case, trust was placed in the accused to handle and collect significant amounts of money for the company. He had worked there for 7 years and given that length of time, it is not inconceivable that his employer would have placed a considerable amount of trust in him.
17. It is also aggravating that the sum of money involved was significant, being SAT$18, 964.20 which is a financial loss to the company. His actions caused much stress for the accountant of the complainant company.
18. This offending was also premeditated. The accused altered the invoices to conceal his theft. He did this 12 times over a period of two months. These actions were deliberate and well planned.

Mitigating factors

19. I take into account in mitigation the written testimonials of his faifeau and village representative which speak of his valuable contribution to the church and village.
20. Another mitigating factor in favour of the accused is his early guilty plea to the charges.

Discussion

21. Prosecution is seeking an imprisonment term and to adopt 3 years as the starting point for sentence.
22. Probation submits that a community based sentence is unsuitable.
23. Sapolu CJ in Police v Keti [2015] WSSC 16 (5 March 2015) has helpfully set out sentencing guidelines decisions for certain types of fraud including thefts committed by employees in positions of trust given in R v Barrick (1985) 81 Cr App R 78, Lord Chief Justice Lane in delivering the judgment of the English Court of Criminal Appeal stated at pp. 81-82:

“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 general 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 as less than $10,000, or thereabouts, terms of imprisonment ranging from the very short up to eighteen months are appropriate (see for example Weston (1980) 2 Cr. App. R (S) 391). Cases involving sums of between about £10,000 and £50,000 will merit a term of about two to three years imprisonment. Where greater sums are involved, for example those over £100,000, then a term of three and half years to four and a half years would be justified (see example the case of Strubell (1982) 4 Cr. App. R. (S) 3000...

“In any case where a plea of guilty is entered however the Court should give the appropriate discount...

“The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including the rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow employees or partners; (ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like...

24. Sapolu CJ goes on to say that the sentencing guidelines set out in R v Barrick were re-set to take account of inflation in the subsequent decision of the English Court of Criminal Appeal in R v Clark (1998) 2 Cr App R (S) 95 where Rose LJ stated:

“The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents respectively of £10,000, £50,000 and £100,000, the figures mentioned. Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 will merit 3 to 4 years. These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for”.

25. This Court has adopted and applied the sentencing guidelines set out in R v Barrick (1985) 81 Cr App R 78, pp 81-82 as re-set in R v Clark (1998) 2 Cr App R (S) 95 on the basis that they are guideline decisions. (see Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12) .
26. I bear in mind the Court’s words in Police v Vala’auina [2009] WSSC 21(6 March 2009) where it was affirmed;
    • The Courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is not only to deter the offender himself/herself from such future behaviour but also others who may be tempted to follow his/her example.
27. Therefore the approach of this Court has been to send a stern message to the offender and community that theft as a servant has become all too prevalent in Samoa and is a scourge on Samoa’s commercial sector. Accountability, denunciation, deterrence, and protection of the community demands a response from the Court which censures such conduct.
28. Having considered the aggravating features relating to this offending, I find that a custodial sentence is appropriate. There are no exceptional circumstances warranting some other treatment.
29. I will apply the totality principle and I will take 3 years imprisonment as a starting point for sentence for each charge of theft as a servant. I deduct 2 months for the positive written testimonials and 10 months for his early guilty pleas.

Sentence

30. The accused is convicted of each count of theft as a servant and sentenced to 2 years imprisonment. These are to be served concurrently.
31. The accused is convicted of each charge of obtaining by deception and sentenced to 1 year imprisonment. These are to be concurrent to each other and to the sentence for thefts as a servant.
32. In effect, he will serve a total sentence of 2 years imprisonment.
    

JUSTICE TAFAOIMALO TUALA WARREN