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Police v Ah Leong [2020] WSSC 11 (30 January 2020)

IN THE SUPREME COURT OF SAMOA
Police v Ah Leong [2020] WSSC 11

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ROSALEI AH LEONG, female of Vaitele-uta.

Accused

Counsel: A Matalasi for Prosecution
K Koria for the Accused

Sentence: 30 January 2020

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence on one charge of theft^[1] as a servant while working for Business Systems Limited (BSL). The penalty for such offending is maximum 10 years’ imprisonment.
2. According to the summary of facts, the accused stole four mobile phones and four mobile chargers to a total value of SAT$7,804. The accused was employed as a Retail Officer and was responsible for looking after the mobile phones sold at BSL.

Aggravating factors

3. Inherent in the offending of theft as a servant is the breach of trust in the relationship of employer – employee. An employee is employed by an employer to a specific position with specific responsibilities. The employee is entrusted by the employer to carry out her functions and responsibilities diligently and with honesty.
4. Pre-meditation is usually, if not always, involved in the commission of this offending. In the present offending the accused did not hand over the keys at the end of the days’ work to the Retail Manager as she is required to do, instead she took it home. This had given the defendant the opportunity to access the cupboard where the mobile phones are kept at any time and it facilitated the commission of the offence by the accused.
5. The total value of the properties stolen is an aggravating factor. In this case, the BSL company lost out from the sale of those mobile phones and charges to the amount of $7,804; which is quite a substantial amount.

Mitigating factors

6. The accused is a first offender and had pleaded guilty. The accused had returned two mobile phones and a charger with an estimated total value of $3,400.

The accused

7. The accused is 26 years’ old, married with one child. There are written testimonials from her religious leader and village pulenu’u which testimonials speak of her good character.
8. According to the pre-sentence report the accused reached the NUS Foundation year but did not complete her studies due to financial circumstances. She has always found employment as a cashier or sales person in supermarkets or shops she was employed in prior to BSL. She is reported in the pre-sentence to have sold the mobile phones to members of her family for $50 and then use the money.
9. Mr. Koria for the accused in mitigation asks the court for leniency and a second opportunity saying that the accused is from a low income family. Coming from a low income family does not justify stealing or taking what does not belong to you. The money the accused received from selling the mobile phones was used by the accused for her personal use. It did not go towards her family.
10. Mr. Koria informed the Court that there was attempted reconciliation by the accused by way of an apology to the company’s representative Mr. Leroy Feaunati but Mr. Feaunati did not avail himself.

Discussion

11. The Prosecution recommends a custodial sentence with a starting point of 2 ½ years’ imprisonment.
12. The offending of theft as a servant is prevalent in our society. The Court’s attitude has always been a custodial sentence unless there are exceptional circumstances that would warrant a non-custodial sentence.
13. There was no victim impact report provided as to the impact of the offending upon the BSL company. The prosecution advised that despite efforts to obtain a victim impact report from the victim company from a Mr. Leroy Feaunati, he has never provided one. Regardless of the non-provision of a victim impact report, the Court can assume that stealing from a company will always have an impact on the company. A victim impact report from the company would have indicated to the court the extent of the impact this offending had on the company. Given that there is no victim impact report the court will take it that any impact is minimal. There is also the fact that three of the properties stolen have been returned.
14. In the circumstances of this offending, a starting point of 2 years is appropriate. I deduct 6 months for the accused prior good character and further 6 months for early guilty plea. The end sentence is 12 months’ imprisonment.
15. The accused is convicted and sentenced to 12 months’ imprisonment. The accused will be eligible to apply for parole after serving 6 months of her sentence.
    

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, sections 161 & 165(e)