SUPREME COURT OF SAMOA
Police v Fese’eta’i [2022] WSSC 42

Case name: 	Police v Fese’eta’i 	
		
Citation: 	[2022] WSSC 42	
		
Decision date: 	29 July 2022	
		
Parties: 	POLICE v LUI FESE’ETA’I and TALOSAGA WALES AMOSA	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE PERESE	
		
On appeal from:		
		
Order:	-	A final sentence of 8 months is appropriate.  And I accordingly convict you both and sentence you to a period of 8 months imprisonment each.

Representation: 	A Uele for prosecution
S Chan Chui for Lui Fese’eta’i 
T Toailoa for Talosaga Wales Amosa

Catchwords: 	Theft as a servant – grave breaches of trust– lack of genuine remorse –personal mitigatory circumstances – sentence 	
		
Words and phrases:		
		
Legislation cited:	Sentencing Act 2016 s.6,	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A  N  D
(1) LUI FESE’ETA’I
(2) TALOSAGA WALES AMOSA
Defendants

Counsel:	
A Uele for prosecution
S Chan Chui for Lui Fese’eta’i
T Toailoa for Talosaga Wales Amosa

Sentence:	29 July 2022

SENTENCE OF PERESE CJ

1. 	The defendants were found guilty of the following charges:
(a) 	Lui Fese’eta’i: 1 charge of theft as a servant in relation to the stealing of $365.40.
(b) 	Talosaga Wales Amosa, 6 charges of theft as a servant in relation to the stealing of the following amounts: $127.20, $86.40; $28.80; $57.60; $50.40; and $28.80.
2. 	 I do not intend to traverse the facts of this matter, save to refer to the judgment delivered by this court on 9 December 2021.
3. 	Submissions for this sentencing hearing have been filed by the Prosecution, counsel for the Defendants, and I have also had the opportunity of reviewing presentence reports prepared by Probation Officer Taliloa To’oi and Antonia Saaga, and the Court thanks counsel and the report writers.
4. 	By way of background, there were a number of defendants employed by Samoa Sports Lotto who were charged with offences of theft as a servant.  Those other defendants plead guilty and were fined by the Court, with a default sentence of between 2 to 6 months imprisonment.  Counsel for the defendants urge me to be guided by the principle of parity and s. 6 of the Sentencing Act 2016. They submitted their submission that their respective clients should not be imprisoned, or should be fined or a sentenced to probation.
5. 	The prosecution submits that the defendants be convicted and imprisoned for a term of not more than 12 months.
6. 	After having reviewed the pre-sentence reports, I note that the defendants continue to maintain their innocence.  Both counsel advise that the stolen money has been repaid and apologies offered which had been accepted.  These are certainly important steps and relevant matters to be considered at sentencing.  They generally indicate a defendant’s insight into the offending and a clear demonstration of remorse.  However, these defendants continued insistence of their innocence demonstrates a complete lack of genuine remorse, unlike those defendants who earlier plead guilty.
7. 	The submission that the principle of parity should lead to a non-custodial sentence i.e. a fine, is rejected.
8. 	The most striking feature of this offending is the grave breaches of trust involved. In premeditated and calculated ways they stole from their employer, but they also tricked members of the public to hand over money for tickets the defendants knew to be worthless.
9. 	Although the amount of money involved is not large, it is the brazenness of the defendants’ dishonesty that is stunning. In Mr Amosa’s case, it was sustained and repeated.  That both defendants continue to plead their innocence suggests a lack of insight, or bravado or failure to take responsibility for their deceit.
10. 	A strong message of deterrence needs to be sent that this type of behaviour against an employer who places a high level of trust in employees, is not to be tolerated.  Nor should members of a gullible an unwary public be tricked in this way.  Employers and the public are entitled to be protected from this dishonesty.
11. 	 I have come to the view that a starting point of 12 months is appropriate.  I do not consider there are any mitigation factors with respect to the offending itself.  However, I take into account as mitigation with respect to the offenders the following:
(a) 	For Mr Fese’eta’i, I note the advice of Taliloa To’o that Mr Fese’eta’i illustrates positive traits pertaining to his service within the family, church, village.  I do not place a lot of weight on the references he provided from his employer; they do not address the issue of Mr Fese’etai’s honesty or lack of it. 
(b) 	For Mr Amosa, Ms Antonia Saaga advises that Mr Amosa is a married father of three, and that he is well supported by his family, church and village.  Again, I do not place a lot of weight on the references from the complainant in this matter as they do not address the issue of Mr Amosa’s honesty or lack of it.
12. 	I consider that a discount of 4 months can be given on account of these personal mitigatory circumstances as well as for the inconvenience of the sentencing being delayed.
13. 	A final sentence of 8 months is appropriate.  And I accordingly convict you both and sentence you to a period of 8 months imprisonment each.  
CHIEF JUSTICE PERESE