Toomalatai v Attorney General [1999] WSCA 3 (8 December 1999)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of The Criminal Procedure Act 1972

AND

IN THE MATTER of an appeal pursuant to section 164K

BETWEEN

MIRIAMA TOOMALATAI
of Vaiala
Appellant

AND

THE ATTORNEY GENERAL
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Counsel: Mr TuaIa K Enari for the Appellant
Attorney General Ms BP Heather and Ms H Wallwork for the Respondent

Hearing: 8 December 1999
Judgment: 8 December 1999

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

The appellant was charged that between 6 August 1998 and 10 July 1999 she, being a servant of the Pacific Commercial Bank, did steal $15,800.00 in money the property of her employer. To this charge she pleaded guilty and was sentenced on 22 November 1999 to 18 months' imprisonment. She has appealed on the grounds that the sentence is manifestly excessive in all the circumstances of the case. The maximum sentence for this offence is 7 years imprisonment.

The appellant is a married woman 27 years of age with a dependent child aged one year. She was well brought up and had a good education passing in 4 subjects in NZ School Certificate and DE examinations. On leaving school she obtained employment with the Pacific Commercial Bank as a teller and was promoted to General Hand Ledger earning $257.00 per fortnight. She was a talented sports woman who had travelled overseas in teams. She was a Sunday School Teacher and active in Church affairs.

Mr Enari for the appellant submitted that the sentencing judge had failed to give sufficient weight to the following matters in favour of the appellant,

(a) that $1000 had been paid back to the bank and the expressed hope to continue to make restitution.

(b) that credit for the guilty plea does not appear to be measurable

(c) in practical terms and separately dealt with that the sentence of 18 months imprisonment is excessive when compared with that of 2 years in the case of Seuseu Olo imposed by the same judge one month earlier. That case involved the theft by a bank servant of $59,258.20.

(d) that the judge did not consider whether probation was a sentencing option.

re (a): The judge did refer to the restitution of $1000 but this had been made by the appellant's family and his view that further restitution was 'a rather unrealistic expectation of the appellant's) part in all the circumstances' was a fair comment. The appellant who had been the only family member in employment was now unemployed and there was no mention of support from her husband.

re (b): The reduction in sentence for a plea of guilty need not be separately assessed so long as it can be seen that 'a real and apparent reduction in what otherwise would be a proper sentence' has been made. (see R v Orchard (1991) 1 NZLR 320,321). Here the judge gave 'a discount, so to speak, of 1/3rd off your overall sentence on account of all these matters', one of which was the plea of guilty resulting in the 'saving of costs associated with a lengthy trial'. We see no need to have gone any further in spelling out the 'discount' in this case.

re (c): Madam Attorney gave reasons to distinguish the case of Seuseu Olo - in particular that the b~ had the prospect of recovering about half of the stolen money from the sale of some land purchased by the defendant. The Respondent produced a schedule of recent cases of theft and the sentences imposed. We agree with Madam Attorney's submission that the sentence imposed in this case was within the current range for this type of offending.

re (d): The judge on sentencing said, 'A deterrent sentence is called for here. You and others in positions of trust must understand that breaches of trust like this will not be tolerated'. In those words he obviously ruled out probation as a suitable sentencing option.

For these reasons we find that the appellant has not discharged the onus of proving that the sentence of 18 months imprisonment is manifestly excessive or wrong in principle and we see no exceptional circumstances calling for its revision.

The appellant's offending is hard to understand. It has brought shame on her and her family. The only explanation is that she resorted to her employer's funds to make generous payments to her family and her Church. The amounts taken varied in size from $100 to $2,500 but averaged $1,580 per month and continued usually at two-weekly intervals until she was apprehended by the bank. Although the money was not used for luxuries and high living, the stealing of$15,800.00 over a period of 10 months can only be regarded as deliberate and persistent dishonesty.

We are satisfied that the judge had due regard for the appellant being a first offender and deserving of some leniency but he also rightly took the view that in the public interest a deterrent custodial sentence was called for, sufficient to make clear that breaches of trust of this order would not be tolerated. It should not be lost sight of that although only one charge of theft was laid there were in fact 21 individual thefts, six of which were of $1 000 or more and were made by a trusted employee of 8 years standing. A short term of imprisonment would render the thefts a profitable course of conduct, and not be a deterrent.

The appeal is dismissed.

Solicitors:
T.K. Enari, A.fia, for Appellant
The Attorney-General's Office, Apia, for Respondent