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Police v Sofai [2017] WSSC 78 (27 March 2017)

THE SUPREME COURT OF SAMOA

Police v SOFAI [2017] WSSC 78

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FUAININA SOFAI female of Tanumapua and Lepa
Accused

Counsel:
I. Atoa for Prosecution
S. Ponifasio for the defendant

Sentence: 27 March 2017

S E N T E N C E

1. The accused appears for sentencing on 2 charges of theft as a servant contrary to section 161 and 165(e) of the Crimes Act 2013. The maximum penalty for theft as a servant is 10 years imprisonment.
2. The accused entered an early guilty plea to information S661/16 for the theft of $600.00. For information S662/16 for the theft of $250.00, she entered her guilty plea on the hearing date, however, she advised the Court through counsel at call-over the week prior to her hearing date that a guilty plea would be entered on the hearing date.

The Offending

3. According to the Summary of Facts accepted by the accused through her counsel, she was an employee of Drake & Co Barristers, Solicitors and Notaries (“the firm”). She was a legal secretary in the firm and her duties included following up clients for the making of their payments. The accused had no authority to receive any money, those payments being the responsibility of the accountant of the firm.
4. According to the Summary of Facts, on the 31^st October 2015, a client of the firm paid $600.00 in relation to an amount owed to the firm by that client. The accused kept the money for her personal use (S661/16). On the next day, 1 November 2015, the accused received a further $250.00 being payment towards a debt owed to the firm by a client. However, the accused also kept the money for her personal use.
5. In the Victim Impact Report (VIR) prepared by Ms Kirstin Kruse on behalf of the firm, she says that the accused commenced employment with the firm in November 2014. In her account however, the payments stolen by the accused were payment of judgment debts owed by third parties to a client of the firm. There are a number of discrepancies between the VIR and the Summary of Facts. Where those discrepancies exist, I will rely on the Summary of Facts as those have been accepted by both counsels for the purposes of sentencing.

The Accused

6. According to the Pre-Sentence Report, the accused is a 46 year old female. She is a single mother with 2 children.
7. She completed high school and was first employed with the Post Office for a year before becoming a school teacher. She has held a number of other jobs before she was employed by the firm in November 2014 earning $450 per fortnight. As a result of her offending, her employment with the firm was terminated.
8. In her account, the accused told probation service that the $650 was a repayment towards a loan to her employer by a client. She denied stealing $250.00 but then only later in her interview to Probation Services admit to that theft.
9. The accused has repaid $600.00. There has however been no reconciliation with her former employer.

The Victim

10. A lengthy VIR was prepared by Ms Kruse on behalf of the firm. In the VIR, Ms Kruse expresses the firm’s disappointment and sadness due to the accused’s actions. She also expresses the sense of betrayal caused by the accused. She refers to similar thefts by two former employees who were also recently convicted for theft as a servant from the firm, and disappointed that given the two previous employees convictions, the accused nevertheless carried out her acts of dishonesty.

Aggravating and Mitigating Factors

11. The aggravating features in relation to the accused’s offending are: (a) the breach of her employer’s trust, (b) the breach of trust of clients of the firm who paid her the money; and (c) the theft involved a degree of planning and pre-mediation.
    
12. In relation to the accused as an offender, there are no aggravating features but there are mitigating features. These mitigating features are: (a) the fact that the Accused had been a person of good character prior to her commission of these offences; (b) the early plea to S661/16 and later guilty plea to S662/16; and (c) since her offending, she has repaid $600.00 of the $850.00 stolen.

Sentences Passed In Comparable Cases:

13. In Police v Iteli [2009] WSSC 12, Sapolu CJ stated that “[s]entences imposed in comparable cases of theft as a servant may also provide relevant guidance” In comparable cases, the following sentences have been imposed by the Court for theft as a servant:
    • Police v Swanney [2016] WSSC 139 – 33 year old female convicted of theft as a servant amounting to $1,700.00. Convicted and sentenced to 12 months supervision, with the special condition that she performs 80 hours of community work and to pay $1000.00 costs to the prosecution.
    • Police v Tafale [2016] WSSC 173 (9 September 2016) – 52 year old male convicted of stealing 8 bags of pampers valued at $780.00 convicted and ordered to come up for sentence in 12 months if ordered by the Court.
    • Police v Iteli (Unreported decision of Nelson J, 13 June 2016) – 32 year old female convicted of the theft of $3,370.00 and imprisoned for 27 months imprisonment (prior conviction: see Police v Iteli [2009] WSSC 12).
    • Police v Chadwick [2015] WSSC 15 (5 March 2015) – 25 year old married female convicted of theft of $4,729.50 where full restitution was made convicted and non-custodial sentence.
    • Police v Tagoai [2013] WSSC 60 – 38 year old single female with 1 child convicted following a defended hearing of theft of $1,202.30 sentenced to 3 months imprisonment.
    • Police v Rudnick [2010] WSSC 48 – 51 year old male convicted of theft of $4,100.00 and non-custodial sentenced imposed. Full restitution plus additional monies paid to the employer.
    • Police v Iteli [2009] WSSC 12 – 26 year old female convicted of theft as a servant amounting to $1,203.40 and sentenced to 6 months imprisonment.
    • Police v Ulupoao [2007] WSSC 21 – 21 year old female convicted of theft as a servant of $1.050.00 – 5 months imprisonment.
      
14. In its Sentencing Memorandum, Prosecution has also referred to a number of other comparable cases of theft as a servant as follows:
    • Police v Samantha Tavita [2016] WSSC 101 - theft of $12,000.00 where full restitution was paid and an imprisonment term of 18 months imposed.
    • Police v Muaulu Mulitalo (20 April 2015) – theft of goods valued at $480.00 with 4 months imprisonment imposed. Accused had a previous conviction.
    • Police v Delam Kilifi Tolman (13 April 2015) – theft of $670.00 with non-custodial sentenced imposed.
    • Police v Filiata Penata (30 January 2015) – theft of $760.00 with non-custodial sentence imposed.
    • Police v Tamaau Vili (2 September 2013) – theft of $2,800.00 – sentencing start point of 18 months imprisonment.
    • Police v Kitiona Fiamatai (14 May 2013) – theft of $2,000.00 with an imprisonment start point of 18 months.

Discussion

15. The sentencing guidelines relevant to cases of theft as a servant were set out extensively by Sapolu CJ in Police v Keti [2015] WSSC 16 (5 March 2015) and Police v Uluapo [2007] WSSC 2 where the Honourable Chief Justice cited from R v Barrick (1985) 81 Cr App R 78 at pp 81-82 and Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner at p 343. In Police v Keti (op. cit), the Court further noted that the sentencing guidelines for thefts committed by employees in positions of trust laid down in R v Barrick (1981) 81 Cr App R 78 were re-set in R v Clark (1998) 2 Cr App R (S) 95 to take account of inflation, principles applicable in England. I will not restate those guidelines here for the purposes of sentencing.
16. The approach of the Courts to cases of theft as a servant is well known to the community. In Police v Iteli [2009] WSSC 12, Sapolu CJ stated:

“In general, this Court has imposed terms of imprisonment in cases of theft as a servant except where the amount of money or the value of the goods taken is "small". By Samoan standards $1,203.40 is not a "small" amount even though it is also not a very large amount.”

17. In Police v Uluapo (op. cit), Sapolu CJ further stated in terms of the amount stolen:
    

“I would also not describe the total amount of $1,050 that was taken by the accused as "small" even though it is much less than the total amounts involved in some of the theft as a servant cases that have come before the Courts.”

18. In Police v Iaseto [2011] WSSC 150 (4 October 2011), His Honour Nelson J also reiterated the Courts approach to the offence of theft as a servant as follows:

“The courts sentencing policy for offences of theft as a servant is well known. Invariably the penalties are terms of imprisonment because of the seriousness of the crime and its prevalence in this community...”

19. Prosecution seeks an imprisonment term with a start point of 12 months. In her oral submissions, counsel for the prosecution relied particularly on Police v Samantha Tavita (op. cit) to support its sentencing submission for imprisonment. Probation Service recommends a non-custodial sentence of 15 months supervision with special conditions for the accused to attend a rehabilitation program and to carry out 50 hours of community work.
20. Given the Courts very clear denunciation of theft as a servant and the guidelines for sentencing, this is a matter in which an imprisonment term might be imposed. Having particular regard however to the quantum of the theft, the payment of restitution, section 5(2) of the Community Justice Act 2008, to the comparable cases referred to above and more generally, the facts of the accused’s offending as a whole, a non-custodial sentence will be imposed. The accused should however be very clear that should she re-offend in similar circumstances in future, the outcome for her will most likely be very different to the sentence I impose today. Whilst the sentence will be non-custodial, the accused should also be quite clear that she has brought shame on herself and no doubt been a disappointment to her family and in particular, her 2 children. The convictions I impose today will follow her for the rest of her days.

The penalty

21. I adopt the totality principles in sentencing. The accused is convicted of both charges of theft as a servant and sentenced to 12 months supervision on the special conditions that (a) she attend the Toe Afua Se Taeao Fou for not less than 8 weeks duration and any other programs as directed by the Probation Service; and (b) she carry out 100 hours of community work. These are to be served concurrently.
22. The accused is also ordered to pay $600.00 prosecution costs within 28 days.
    

JUSTICE LEIATAUALESA DARYL CLARKE