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Police v Otineru [2023] WSSC 60 (15 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v Otineru [2023] WSSC 60 (15 September 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FAITITILI TAIFAU OTINERU female of Salelavalu, Savaii

Defendant

Counsel: E Tiitii-Lam for Prosecution
V Afoa for Defendant

Sentence: 15 September 2023

SENTENCING OF TUATAGALOA J

The charges

1. The defendant has pleaded guilty to four (4) charges of theft as a servant^[1] with the maximum penalty of 10 years’ imprisonment for each charge as follows:
   • (i) Between 1 June and 31 July 2022 the defendant stole $5,822.00 from the sale of 15 stamps;
   • (ii) Between 1 June and 31 July 2022 the defendant stole $50.00;
   • (iii) Between 1 June and 31 July 2022 the defendant stole $51.00 from the sale of 9 envelopes; and
   • (iv) Between 1 June and 31 July 2022 the defendant stole $3,865.00.
2. Charges (ii) and (iv) above were monies belonging to Western Union to the total amount of $3,915.00 and charges (i) and (iii) were monies from the sale of stamps and envelopes belonging to Samoa Post to the total value of $5873.00.
3. The total amount stolen by the defendant is SAT$9,788.00.

The facts

4. The summary of facts has been read out and confirmed by the defendant as follows:
   • (i) The defendant was employed as a postal counter officer at the Samoa Post Limited (SPL) branch at Tuasivi, Savaii. The defendant accordingly was also overseeing the daily operations of the Western Union branch located within the same office as Samoa Post. Western Union monies were in the possession of Samoa Post.
   • (ii) Between the period of 1 June and 31 July 2022 the defendant sold and received monies from Samoa Post customers for the sale of 155 stamps for customer parcels and kept it for personal use.
   • (iii) The defendant would continuously submit her daily reports to the main office in Apia noting no sales made so the theft would go undetected.
   • (iv) Within the same period the defendant stole monies belonging to Western Union for personal use.
5. The defendant on four separate occasions within the span of two (2) months stole from her employer Samoa Post.

The defendant

6. The defendant is 23 years’ old, married with one child. She was employed by Samoa Post for 3 years at their Tuasivi branch. At the time of the offending, she was 22 years’ old and single
7. There are written testimonials from the defendant’s pulenuu and faifeau. They spoke of the defendant being hardworking and very respectful and sought leniency when passing sentencing.
8. According to the pre-sentence report, the defendant’s education background reached tertiary level where she studied at the National University of Samoa for a year. She is a first offender.

The victim impact report

9. The prosecution did not provide a Victim Impact Report as is normal procedure. There is always a financial impact on the employer where such an amount is stolen by an employee. In this particular case, there would also be an adverse effect on the business relationship between Samoa Post and Western Union.
10. The Probation Services obtained from Samoa Post a copy of the receipt confirming payment of $1000 by the defendant as restitution by the defendant towards the money she stole. An employee of the Samoa Post branch at Tuasivi was not aware and could not confirm whether an apology had been made by the defendant.

The aggravating factors

11. I take the following as aggravating factors of the offending:
    • (i) Breach of trust - she was entrusted with receiving monies and handling the funds accordingly.
    • (ii) Pre-meditation - the defendant told her counsel and probation services that her boyfriend at the time would asked her for money for his family obligations, thus the reason why she stole the monies. On that basis there is an element that the offending was pre-meditated as she would turn up to work knowing what she had to do. She also did not note in her report the sales made in her daily report so that the money received by her would go undetected.
    • (iii) The offending would no doubt have an adverse financial impact upon the employer.

The mitigating factors

12. On the other hand, the following are mitigating factors personal to the offender:
    • (i) Age of the defendant – at 22 years’ old is young.
    • (ii) First offender status. The written testimonial testified to the defendant’s good honest character prior to the offending.
    • (iii) The defendant’s early guilty plea is viewed by the Court as the defendant taking full responsibility and owning up to her behavior.
    • (iv) Remorseful - I accept that the defendant is truly remorseful for what she has done.
13. The apology referred to by counsel for the defendant is not confirmed. The payment of $1000 as restitution is not given much weight as it had taken more than year before the defendant made payment. The genuine intention behind the payment is therefore, questionable.

Discussion

14. The offending of theft as a servant continues to be prevalent, despite the Court imposing custodial sentences. The reason for custodial sentences is to mark publicly the gravity of the offence and for deterrence. A custodial sentence is not the only means of deterrent.
15. There are or have been sentencing decisions by the Court of non-custodial sentences of this offending where the Court finds that the circumstances of the particular case justifies a departure from imposing a custodial sentence. Vaai J in P v Tevaga said at paragraph [8]:
    • “Although custodial sentences must always be considered for offences involving dishonesty by those who were placed in positions of trust, sentence to be passed in each case must be considered primarily in the circumstances surrounding the offending.”^[2]
16. Both Counsels refer to sentencings of the Court on theft as a servant offence of similar amounts. They both agree that the Court has imposed non-custodial sentences depending on the particular circumstances of each case. The Court’s attitude has always been a custodial sentence unless there are exceptional circumstances that would warrant a non-custodial sentence.
17. The Court considers the circumstances of each case and sentence accordingly. The sum involved is not the only factor but is a useful guide, the length or period of time in the commission of the offending, the position or level of trust given to the defendant in the course of her/his employment are some of the factors to be taken into account by the Court.
18. In the present case, the employer was a counter officer. The level of trust reflects on the weight of responsibility placed on a person according to the individual’s designation within the organisation. In the present case the defendant was the only counter officer responsible for sale and receiving monies and also entrusted with handling Western Union monies. The level of trust placed upon her was quite high. I agree with the Prosecutions submissions that the offending involved a high level of premeditation and significant breach of trust. The amount of money stolen within the span of two months is quite substantial.
19. The Prosecution having identified the above aggravating factors recommended a non-custodial sentence. Counsel for the defendant also pleads for a non-custodial sentence but should the court consider a custodial sentence, she proposed that 18 months’ imprisonment would be appropriate.
20. I find no exceptional circumstances to warrant a departure from the Court’s usual stance with offending of this type. In the circumstances of this offending a starting point of 2 years is appropriate. I deduct 6 months for being a first offender and further 3 months for the other mitigating factors identified. This, leaves 13 months to which I then give 25% discount amounting to 4 months for the early guilty plea. The end sentence is 9 months.
21. However, I note that two of the charges are to the amount of less than $60 and the other two charges are more than $2000. Taking into consideration the age of the defendant and the fact that she will be of more value contributing to society outside of prison, there is still the need for deterrence from future offending and to achieve this is by way of custodial sentence. I sentence the defendant with this in mind.
22. The defendant is convicted and sentenced to 3 months’ imprisonment to be followed by 6 months’ supervision with conditions to be imposed by Probation Services.

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss. 161 and 165(e)
^[2] P v Tevaga [2013] WSSC 35 (21 May 2013).