SUPREME COURT OF SAMOA
Police v Reupena [2019] WSSC 46

Case name: 	Police v Reupena	
		
Citation: 	[2019] WSSC 46	
		
Decision date: 	8 August 2019	
		
Parties: 	POLICE v ANUILAGI REUPENA female of Nofoalii.	
		
Sentencing date(s): 	8 August 2019	
		
File number(s): 		
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE	
		
On appeal from:		
		
Order:	-	 Accordingly, in respect of information S1311/19 you are convicted and sentenced to 12 months imprisonment, less time remanded in custody. On all other charges, you are convicted and sentenced to 2 months imprisonment to be served concurrently.		
Representation: 	F Ioane for Prosecution
Accused self-represented

Catchwords: 	aggravating features of the offending – mitigating factors personal to the offender –theft as a servant –genuine remorse – starting point for sentence – sentence 	
		
Words and phrases:		
Legislation cited:		
		
Cases cited:	Police v Tiatia [2014] WSSC 149 	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ANUILAGI REUPENA female of Nofoalii.
Accused

Counsel:	
F Ioane for Prosecution
Accused self-re-presented

Decision:  	8 August 2019

O R A L   S E N T E N C E
The Charge:
[1]	Anuilagi, you appear for sentence on 49 charges of theft as a servant. The maximum penalty for theft as a servant is 10 years imprisonment. 
The Offending:
[2]	According to the Summary of Facts accepted by you yesterday, the victim company in this matter is Toleafoa Supermarket at Fasitoo-uta. Otherwise referred to as T N Toleafoa Supermarket in the various charges before the Court.  
[3]	You committed your offending against the company on separate occasions whilst you were on shift as a cashier. At the time of your offending you were a cashier for the company. When you would receive money from the purchase of goods by customers, instead of receipting the monies on the machine, you stole it and kept it for your personal use. You carried this out on 49 separate occasions from February 2019 to June 2019. The amounts stolen by you varied from $7.88 to $246.00. The total amount stolen by you was $3,627.98. 
Background of the Accused:
[4]	You are a 24 year old female of Nofoalii. You are the seventh of eight children and were raised at Nofoalii. You completed high school. You are married with one child aged 4 years of age who you said is currently being cared for by your parents. You are no longer employed by T N Toleafoa Supermarket. 
[5]	You have positive family character references in support of your character. Your father describes you as an obedient daughter and that this offending was out of character for you. 
The Victims:
[6]	The victim of your offending is T N Toleafoa Supermarket at Fasitoo-uta. In the Victim Impact Report on behalf of the victim, the company representative states that as a result of your offending, they have had to upgrade their computer system to counter alterations to records and this type of fraud. The company which I understand has a number of employees states in the victim impact report “it is very hard to find honest people these days. Trust and honesty is not an easy task to achieve.”
[7]	In the victim impact report, the company representative who is the son of the owners of the company states: 
	“However, on Saturday 4th August, Anuilagi’s parents came for the second time to apologize and gave us $3,000.00 as payment. Therefore, my parents as owner of the company has forgiven and accepted Anuilagi and that the $3,000.00 is enough for the offence. It is hard for my parents given the impact on Anuilag’s future and the mediation last Saturday was prominent.”
Aggravating Features of the Offending:
[8]	In terms of the aggravating features of your offending they are as follows:
(i)	The breach of trust given your position as a cashier within the company;
(ii)	You committed the same offending on 49 separate occasions and over a 5 month period of time;
(iii)	The highly premeditated, considered, planned and executed theft against your employer using their computer system; and
(iv)	The amount stolen by you in total, whilst not particularly large, it is also not small.                                                                                                                                                                                                                                                                                                                            
[9]	In terms of mitigating features of your offending there are none. 
[10]	In terms of the aggravating features personal to you as an offender there are none, you are a first offender. 
Mitigating Factors Personal to the Offender:
[11]	In terms of the mitigating factors personal to you I take into account the following for the purposes of sentencing:
•	Your remorse which I accept as genuine and your personal apology to the company together with your parents;
•	Your prior good character
•	The restitution or repayment of $3,000.00 towards the money stolen by you; and
•	Your guilty plea to the charges. 
Discussion:
[12]	Anuilagi, I read part of the victim impact report so that you understand that your offending has not only affected you and your family but it also carries a heavy toll for the victims of these offences. It is often forgotten in my view that in small communities such as ours where employees are like family members and often treated as such that when an employee steals from their employer, it carries a heavy emotional toll on the employer because of the betrayal of that trust. 
[13]	When I asked you yesterday whether when you committed your offending, whether you understood the serious of the offending that you were carrying out, you said yes. You also said that you committed the offending because of greed. 
[14]	In your submission to the Court you asked for a non-custodial sentence. As Acting Chief Justice Nelson stated in Police v Tiatia [2014] WSSC 149 (3 July 2014):
	“The Courts policy in respect of such offending is well established by a long line of cases. It is serious offending and its effects are always acutely felt in a small community such as ours. It is also one of the most common offences coming before the Court. Consequently, the Courts policy is to impose imprisonment as its usual penalty. Unless there are exceptional circumstances warranting some other treatment”.
[15]	There are no exceptional circumstances Anuilagi that warrants a departure from the Court’s usual policy of imprisonment. Given the amount stolen by you and that you did so on 49 separate occasions over a 5 month period in a planned and considered manner, a custodial sentence is warranted. 
[16]	Prosecution seeks a start point of 4 to 4 ½ imprisonment given the 49 separate occasions in which you committed your offending. Probation concludes that you are suitable for a community based sentence, if the Court was so inclined. In my view, 4 to 4 ½ years is too high a start point given the amount stolen and the circumstances of this case. The authorities referred to by prosecution for start points for this range of amount stolen varies between 8 months imprisonment (end sentence) and start points between 6 months and 24 months imprisonment. In a number of other cases involving a significantly higher amounts of money stolen from an employer to which I have had regard, lower start points then that being put forward was adopted by the Court. Whilst the multiplicity of offences increases the seriousness of the offending, it does not do so to the significant degree that prosecution submits. 
Result:
[17]	Anuilagi, I apply the totality in sentencing approach and information S1311/19 as the lead charge and I adopt 2 years and 3 months start point for sentence. I deduct 8 months for your genuine remorse, apology and prior good character. I further deduct 3 months for the restitution paid and 4 more months for your guilty plea leaving an end sentence of 12 months imprisonment. 
[18]	Accordingly, in respect of information S1311/19 you are convicted and sentenced to 12 months imprisonment, less time remanded in custody. On all other charges, you are convicted and sentenced to 2 months imprisonment to be served concurrently.
JUSTICE CLARKE