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Police v Taito [2019] WSSC 50 (19 September 2019)

SUPREME COURT OF SAMOA
Police v Taito [2019] WSSC 50

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

NISE LAFAELE TAITO female of Falefale.
Accused

Counsel:
L A Matalasi for Prosecution
M Soonalole for the Accused

Decision: 19 September 2019

O R A L S E N T E N C E

The Charge:

[1] Nise, you appear for sentencing on one charge of theft as a servant that between the 1st August 2017 and 31^st July 2018, you together with your co-defendant Moana Vito stole $42,180.00 in cash from your employer Chan Mow Company Limited. The maximum penalty for the charge of theft as a servant is 10 years imprisonment.

The Offending:

[2] According to the Summary of Facts which you’ve accepted through your counsel this afternoon, you were the accounts person for the Chan Mow Company Limited at Matafele. You were responsible for the physical count of all monies from cashiers and delivery trucks on a daily basis. You were then also responsible for the banking of the company’s daily takings. Together with your co-defendant Moana Vito, you would steal monies belonging to the Chan Mow Company Ltd. You together assisted each in concealing all the shortages leading up to when the theft was discovered. The total amount stolen by you and Moana Vito together during the course of your employment without the company’s knowledge or authority was $42,180.00. In concealing of the shortage or money stolen, your co-defendant would steal the money and inform you of the amount she took. You then covered up the shortage from monies from other cashiers or from delivery trucks.

[3] Your offending over a lengthy period of time only came to light when one of the employees found an exchange of messages between you and Moana regarding your actions. As a result, a surprise cash count was taken in August 2018. It was found from that count that the entries were wrong and there was a discrepancy amount noted on the paper and physical cash at hand.

Background of the Accused:

[4] According to the Summary of Facts, you are a 45-year-old woman married with two adult children. You are currently unemployed. You were born and raised by your mother’s family at Falefa and you are the fourth of seven children. You attended college at Leififi College and completed school to year 13. You found employment with Chan Mow in 2004 starting in the sales department. You then progressed become a cashier before being promoted to being head cashier. In that role as head cashier, you were responsible for the counting of cash as well as the banking.

[5] You are a first offender.

The Victim:

[6] The victim of your offending is Chan Mow Company Limited. In the company’s Victim Impact Report, the company representative states that you have worked in the wholesale part of the business for 10 years. The family had decided to handover the responsibility of counting all the cash in the wholesale business to an employee that is you. You were given the significant responsibility of checking all the cash from all the cashiers and delivery trucks, counting it and then banking it.

Aggravating Features of the Offending:

[7] The following are the aggravating features of the offending:

(i) The very serious breach of trust given your position as the head cashier responsible for receiving and counting all the cash from cashiers and delivery truck drivers and then banking it;
(ii) You offending was pre-meditated, planned and according to you, coordinated with your co-accused to conceal the theft;
(iii) That you carried out your stealing from this company over a lengthy period of time that is 11 months; and
(iv) The amount of money stolen by you and Moan Vito that is $42,180.00. That is large sum of money by Samoan standards.

[8] There are no mitigating features in respect of your offending there are also no aggravating features personal to you as an offender you are a first offender.

Mitigating Factors Personal to the Offender:

[9] The mitigating features that I take into account personal to you as an offender are the following:

(i) Ifoga presented on your behalf presented to the company;
(ii) Genuine remorse reflected in the Pre-Sentence Report;

• (iii) Prior good character reflected in your first offender status and the references in support of you;
• (iv) Your personal circumstances which includes your role as a carer for the elderly mother in your family as well as the restitution paid of $11,710.00; and
• (v) Your guilty plea to the charge late as it was during the callover period.

Discussion:

[10] Nise, the amount stolen by you together with Moana Vito was a significant amount of money over a long period of time. You both did so concealing the theft over quite a lengthy period of time. I accept that you did not keep for yourself all the money but together with Moana, you were both responsible for the theft of that sum of money from Chan Mow Company Ltd.

[11] When you committed this offending, this was after the fire to the wholesale building. Despite these difficulties, you were entrusted with a very critical job to both count and bank their wholesale takings. You were the first employee to have that role and it shows the trust and faith that Chan Mow had in you. Your acts and the capacity that you held in that company were a very serious breach of the company’s trust in you.

[12] I have read the letter from your family and their plea which appears to be for a non-custodial sentence. I understand and expect that it has been a very distressing for them as is the thought of an imprisonment term. The Samoan Courts approach to the sentencing for theft as a servant however is quite clear and it has been so over many years due to the prevalence of theft as a servant and the impact of such offending in a small community and on local businesses. It is as Nelson J stated in Police v Tiatia [WSSC 149 3 July 2014] “it is also one of the most common offences before the Court consequently the Court policy is to impose imprisonment as its usual penalty unless there are exceptional circumstances warranting some other treatment. The Court takes no pleasure in sending talented and highly skill individual to jail. But there are no exceptional circumstances here that will justify another form of penalty”. In your case, there are also no exceptional circumstances. A custodial sentence is warranted. This is a large sum of money by Samoan standard stolen over a lengthy period of time. There was obvious premeditation, planning and coordination together with the significant breach of trust.

[13] Prosecution seeks an imprisonment term with a start point of 7 years imprisonment and refers me to various authorities for lower sums of money stolen with lower start point and submits that as a result of the high amount stolen in this case, a 7 years start point is warranted. There is however the sentencing decision of Police v Faaiuga [2015 WSSC 81]. In that case involving a finance officer and the victim company stealing $461,196.00 a start point of 6 ½ years was adopted.

Result:

[14] Having regard to the authorities that I have been referred to and the aggravating factors of the offending, I adopt 5 ½ years for sentence. I deduct 3 months for the ifoga presented on your behalf, I deduct 6 months for the prior good character, I deduct 6 months for your remorse and 4 months for the restitution paid. I deduct 3 months for your personal circumstances which I earlier referred. And finally for your late guilty plea, I deduct 8 months. That leaves an imprisonment term of 3 years imprisonment.

[15] You are accordingly convicted and sentenced to 3 years imprisonment less time remanded in custody in respect of the charge of theft as a servant.

JUSTICE CLARKE