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

Police v Sooalo [2020] WSSC 17 (12 February 2020)

SUPREME COURT OF SAMOA
Police v Sooalo WSSC 17

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

LOLETOGA SOOALO male of Lefagaoalii Safune and Afega
Defendant

Counsel:
Mr M Alai for Prosecution

Sentence: 12 February 2020

SENTENCING OF JUSTICE ROMA
Charge

[1] You appear for sentence on one (1) charge of theft as a servant contrary to s161, Crimes Act 2013. The maximum penalty under s165(e) is an imprisonment term of 10 years. You pleaded guilty to the charge at the earliest opportunity.

Offending

[2] At the material time, between 31 August and 30 September 2019, you were employed by the Samoa Sports Facilities Authority (victim) as a security guard at its multipurpose gymnasium at Tuanaimato.

[3] As guard, you had access to the storage room, inside which all building materials for the renovation of the gymnasium were stored. During one of your night shifts, you caused to be taken without the victim’s knowledge and / or authority 7 barrels of paint, each valued at $700.00. The total value for the 7 stolen barrels is $4,900.00.

[4] An internal investigation found that you were responsible. Police were then informed resulting in the present charge against you.

[5] In the pre sentence report, you admit your offending but say that one other person was involved. He suggested and with poor judgment on your part, you agreed and both proceeded to take the barrels with the intention of selling them for money. Of the 7 stolen, he took 5 and you took 2, which were retrieved from your home following the victim’s investigation. This was confirmed by Counsel for prosecution when the matter was last called.

Accused

[6] You are a 34-year-old father of 3 young children aged between 1 and 6 years. You have had a reasonably good level of education. You studied at a Bible College for 4 years and became an Assistant Preacher at Nuuuli, American Samoa.

[7] You returned to Samoa in 2009, held a number of employment and married your wife in 2014. After 2 years working as a security guard, your employment was terminated as a result of your offending. You have returned to live with your parents in Savaii. You remain unemployed up to the present.

[8] The testimonials from your father, pulenuu and your Church Minister at Lefagaoalii speak highly of your character and your service to your family, village and Church.

[9] You are a first Offender. Though no apology has been made, you have expressed remorse through the Probation Service and what you told the Court.

Victim

[10] In a brief VIR, the victim’s representative identifies the impact of your offending as the loss of items and recruitment of additional security to address the problem. It would have however committed time and resources in conducting its own investigation referred to in the pre sentence report, the findings from which led to the charge against you.

[11] The VIR further confirms what you told Probation that you have not gone back to apologise. It does not confirm that 2 of the stolen barrels were returned, though Counsel for prosecution was able to confirm that in Court.

Aggravating factors

[12] The aggravating factors are:

• (i) Breach of trust – You were entrusted to look after the victim’s property and guard against its possible theft and / or damage. Instead, you betrayed that trust by facilitating and committing the theft of the very properties you were entrusted to look after;
• (ii) Pre meditation – The offending occurred at night and during one of your shifts when you knew very well that the chances of detection would be minimal;
• (iii) Value of the property stolen – The total value of $4,900.00 is not insignificant;
• (iv) Impact of offending on the victim referred to above.

Mitigating Factors

[13] The mitigating factors are as follows:

• (i) Return of the items – Whilst I do not consider as a mitigating feature that one other person was involved, I take into account that the 2 barrels you took and which prosecution confirms, were retrieved and returned to the victim following its investigation and before police acted on its complaint;
• (ii) Guilty Plea at the earliest opportunity;
• (iii) Personal circumstances, expression of remorse, previous good character including the fact that you are a first offender.

Discussion

[14] As a matter of practice, the Court has generally imposed custodial sentences in cases of theft as a servant mainly because of the breach by defendant employees of their victim employers’ trust.

[15] I bear in mind the guidelines identified in the English Court of Criminal Appeal in R v. Barrick (1985) 81 Cr. App. R. 78 in passing sentence in certain types of fraud cases including thefts committed by employees in positions of trust and adopted by His Honour Sapolu, CJ in Police v. Ulupoao [2007] WSSC 21 (28 March 2007) and Police v. Keti [2015] WSSC 16 (5 March 2015).

[16] More specifically in cases of theft as a servant by security guard defendants, the sentencing remarks by His Honour Nelson, J in Police v. Taase [2012] WSSC 54 (2 April 2012) and Police v. Oloapu [2015] WSSC 232 (20 July 2015) are highly relevant and must continue to be echoed. It is stated in those decisions respectively:

• “I am also mindful that more security guards are being prosecuted for thefts from their employers. This is becoming trendy. I am of the view the message that should be sent to such people must be clear and unambiguous. As a security guard, you carry a large degree of responsibility. You abuse that, you are likely to be sent to prison.”
• “The message must go out to all security guards. You are the last line of defence of an employer. Your job is to catch the thieves not become one. This was a severe breach of trust by defendants.”

[17] The same remarks are cited and applied in the more recent cases of Police v. Uli [2018] WSSC 42 (2 March 2018) and Police v. Fiamatai [2018] WSSC 101 (7 September 2018).

[18] Applying the above authorities, I find that no special circumstances exist to warrant a departure from the Court’s sentencing practice in your case. A custodial sentence must be imposed.

[19] Prosecution seek a starting point of 18 months. I have considered the cases referred to in its sentencing memorandum. There are obvious differences from yours in terms of the amounts involved, the number of charges, the gravity of the offending and the fact that restitution was made in some.

[20] I also find helpful the analysis by His Honour Clarke, J of comparable cases in Police v. Sofai [2017] WSSC 78 (27 March 2017).

[21] Having considered all those authorities, the aggravating and mitigating factors of your case as well as the need for deterrence, I accept that 18 months is an appropriate starting point. I deduct 6 months for your early plea of guilty. I deduct a further 6 months for your personal circumstances, previous good character including the fact that you are a first offender, and your expression of remorse. The end sentence is 6 months imprisonment.

Penalty

[22] On the one (1) charge of theft as a servant, you are convicted and sentenced to 6 months imprisonment.

[23] Thank you, you may stand down.

JUSTICE FEPULEA’I A. ROMA