Police v Etelagi [2001] WSCA 2 (23 November 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of The Judicature Ordinance 1961
and The Criminal Procedure Act 1972

AND

IN THE MATTER of an appeal pursuant to Section 164L
of the Criminal Procedure Act 1972

BETWEEN

THE POLICE
Appellant

AND
FAALEOFI NIUPULUSU POSUI ETELAGI,
FAAILO MAVAEGA, PELENISE AMETI MOEFAAUO,
VILIAMU MANA, IOANE KENETI TUFUGA
Respondents

Coram: The Hon. Sir Ian Barker, (presiding)
The Rt Hon. Sir Ian McKay
The Hon. Justice Robertson

Hearing: 19 November 2001

Counsel: Attorney-General (Brenda Heather-Latu) and Leilani Vaa for Appellant
T K Enari for Respondents Mavaega, Moefaauo and Mana Tuimalealiifano
A V Eti for Respondents Etelagi and Tufuga

Judgement: 23 November 2001

JUDGEMENT OF THE COURT DELIVERED BY ROBERTSON J

These five appeals against sentence by the Attorney-General pursuant to Section 164L of the Criminal Procedure Act 1972 have conveniently been heard together. On 19 January 2001 all of the respondents were sentenced to terms of imprisonment after they had entered pleas of guilty to some offences which had been committed between July 1999 and February 2000 contrary to Sections 85 and 86(1)(g) of the Crimes Ordinance 1961.

Faaleofi Niupulusu Posui Etelegai admitted 55 charges involving $100,400.77 and was sentenced to two and a half years imprisonment.

Faailo Mavaega admitted 19 charges involving $30,924.18 and was sentenced to 18 months imprisonment.

Pelenise Ameti Moefaauo admitted 14 charges involving $30,648.43 and was sentenced to 18 months imprisonment.

Viliamu Mana admitted 12 charges involving $30,902.69 and was sentenced to 18 months imprisonment.

Ioane Keneti Tufuga admitted 10 charges involving $8025.90 and was sentenced to 12 months imprisonment

Each appeal is based on the grounds that:

(a) the sentence imposed was manifestly inadequate in relation to previous decisions handed down by this Honourable Court against offences of this nature;

(b) the sentence does not fully reflect the seriousness of the offence;

(c) the sentence does not give sufficient weight to the need for general deterrence for this type of offending;

(d) the sentence does not reflect the nature of the criminal act and the role of the Respondents in the circumstances of the matter.

Faaleofi Niupulusu Posui Etelegai is now aged 31. He is married with a young child and had been employed by SV Mackenzie Wholesale (Mackenzies) for four years. He has no previous convictions.

Faailo Mavaega is now aged 43, married with four dependent children. He was employed as a salesman by Mackenzies for nine years. His only previous conviction was for an offence not involving dishonesty.

Pelenise Ameti Moefaauo is aged 36 and had been at Mackenzies for 18 months when this offending was discovered. He is married with two young children and has no previous convictions.

Viliamu Mana is nearly 39 and is married with four children under 5. He had worked with Mackenzies for three years and had no previous convictions.

Ioane Keneti Tufuga, now aged 36, is a married man with two young children. He had no previous convictions and had worked with Mackenzies since 1996.

In written submissions filed in this Court, counsel for the appellants raised two important preliminary issues -

(a) A failure to serve copies of the notices of appeal on the respondents

(b) A failure to prepare and serve the record within 6 weeks.

The procedure applicable to Criminal Appeals is contained in Part IV of The Judicature Ordinance 1961 relevantly provides:

27. Commencement of appeals - All appeals to the Court of Appeal in its criminal jurisdiction shall be commenced by a notice of appeal or a motion for leave to appeal as the circumstances may require. Such notice or motion shall be signed by the appellant personally or by a solicitor or counsel acting on the appellant's behalf.

28. Time limit for appeals - No appeal against conviction and sentence, or against sentence alone, shall be brought after the expiration of 21 days from the date of passing sentence unless the Supreme Court or the Court of Appeal shall enlarge the time for filing the notice or motion.

29. Extension of time - Application to the Court of Appeal for an extension of time within which to file the notice of appeal or the motion for leave to appeal shall be made by motion with or without supporting affidavit.

30. Documents to be procured from Supreme Court by Registrar - Upon receipt of a notice of appeal or order granting leave to appeal the Registrar shall procure from the Supreme Court the following documents:

(a) The information;

(b) A copy of the Judge's notes of evidence or the stenographic record;

(c) All exhibits which may be practicable to transmit;

(d) A list of the remaining exhibits;

(e) A copy of the reasons for judgement, if given;

(f) A copy of the formal conviction and sentence, and of any ancillary order made by the Supreme Court in connection therewith;

(g) A list of previous convictions, if any, in the case of an appeal against sentence.

31. Copies of documents to be supplied to appellant on request - The Registrar will upon request supply to the appellant a copy of the above documents to enable the appellant to prepare the record; provided that the appellant shall unless the Supreme Court orders otherwise pay a fee of 5 sene per folio of 72 words for notes of evidence, copies of exhibits and notes of reasons for judgment.

32. Documents to be lodged with Registrar by appellant - The appellant will within 6 weeks following the filing of the notice of appeal or of the order granting leave to appeal, as the case may be, lodge with the Registrar:

(a) The record;

(b) Six copies of the record for the use of the Judges of the Court of Appeal.

(c) Two copies of the record for service on the Attorney-General and the Prosecuting Officer.

33. Registrar to prepare record if appellant not represented - If the appellant shall not be represented by a solicitor then it shall be the duty of the Registrar to prepare the record and the copies for the use of the Judges of the Court of Appeal and to have service of 2 copies effected on the Attorney-General and the Prosecuting Officer.

34. Registrar to set down appeal for hearing - Upon the lodgement by the appellant or the preparation and service by the Registrar of the copies of the record, as the case may be, the Registrar will thereupon set down the appeal for hearing by entering the same in the list of appeals and it shall come on for hearing according to its order in such list unless the Court of Appeal or the President thereof shall otherwise direct.

35. When appeal deemed to be abandoned - If upon the expiration of 6 weeks from the date of filing notice of appeal or of the order granting leave to appeal, as the case may be, the appellant shall have failed to prepare and lodge the record as provided in clause 32 hereof then the appeal shall be determined to have been abandoned.

38. Non-compliance with rules may be waived - Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force under the Ordinance shall not prevent the further prosecution of his appeal if the Court of Appeal or the President thereof considers that such non-compliance was not wilful and that it may be waived or remedied by amendment or otherwise. The Court of Appeal or the President thereof may in such manner as is thought proper direct the appellant to remedy such non-compliance and upon the proper action being taken by the appellant the appeal shall proceed.

It was common ground in this Court that the appeals in this case were filed within time, but that at no stage were any of the respondents served with notice thereof. The rules are silent on the issue of service of criminal appeals. In respect of civil appeals, Rule 10 provides -

10. Appeals to be by notice stating grounds - All appeals to the Court of Appeal shall be by notice of motion stating the grounds of the appeal and whether the whole or part only of the decision is complained of. The notice of motion shall be filed with the Registrar and shall be served on every party directly affected by the appeal.

It appears that there is a vacuum with regard to Criminal Appeals which it would be appropriate for the authorities to remedy so as to remove any possibility for doubt or misunderstanding.

Service of an appeal, which affects the rights of a criminal defendant, is fundamental in a legal system which maintains the principles of natural justice If necessary we should have been willing to entertain an argument that service of a notice of appeal within the appeal period or at least as soon as is reasonably practical thereafter (which could be only a matter of days) must be read as part of the framework of the legislation regulating appeals.

However it is not necessary to do so in this case because of the clear and admitted non-compliance with Rule 35. The effect of that provision is that there is from the time of the conviction or sentence an initial appeal period for filing, followed by a maximum of a further 6 weeks for preparing and lodging the appeal record. The rule is clear and unambiguous as to the consequences of non-compliance. The appeal is “determined to have been abandoned".

Rule 35 is similar to Rule 12 dealing with civil appeals which provides -

12. Appeal deemed to be abandoned if appellant fails to give security for costs - If the appellant shall fail to give security for costs within the time specified in the order granting leave to appeal or any extended time fixed by the Court (but not in any event exceeding 2 months from the date of the order) the appeal shall be deemed to be abandoned.

In respect of both civil and criminal appeals there are provisions for enlarging time limits (Rule 7), extending time limits (Rules 19 and 29) and to deal with non-compliance in criminal cases (Rule 38).

None of these ameliorating provisions have been in issue in the present case. As the Attorney-General has candidly acknowledged, there appears to have been an administrative oversight which could not be sufficient reason for the lapse of some seven months which has occurred. These appeals are therefore all deemed to have been abandoned.

This conclusion is not only inevitable on the straight reading of the plain words of the rule, but is consistent with the general approach in other jurisdictions to the fulfilment of an appellant's obligations.

Delivering the judgment of the New Zealand Court of Appeal in a civil case, Airwork (NZ) Ltd v Vertical Flight Management Ltd (CA293/97; reasons for judgment 23 July 1998), Blanchard J said -

"The new rule implements the philosophy that once the matter has been the subject of a determination in the High Court any party wishing to challenge that determination by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal. It is thus required of appellants that they should have the case on appeal prepared and lodged within 6 months of the filing of the appeal and an application for a fixture made to the Registrar of this Court within the same period."

The underlying philosophy is equally applicable to criminal cases.

Accordingly we are satisfied that the Attorney-General's appeals were deemed to have been abandoned in March 2001 and this Court has no jurisdiction to hear the appeals.

The Attorney-General's submissions referred to sentences imposed in the Supreme Court for theft as a servant. There appears to be some marked variations of approach. The sentencing Judge would have been greatly assisted if he had had drawn to his attention cases which it was contended enunciated relevant principles or which showed a pattern of sentencing or otherwise influenced the decision he had to make. We consider it is the duty of the prosecutor to draw such matters to the attention of a sentencing Judge.

An appellate Court will only intervene to increase a criminal sentence on a prosecution appeal if it is wrong in principle or manifestly inadequate. In other words, it has to be significantly below the appropriate sentencing levels for similar cases and not merely more lenient than this Court might have imposed if sitting a first instance.

Theft as a servant is always an insidious matter involving as it does a breach of trust. Where there is a sophisticated and sustained course of conduct, the need for deterrent and condemnatory sentences is high and these factors may have to outweigh the personal circumstances of individual offenders. Where it is clearly established that an employee with the responsibility for maintaining checks and balances to protect against dishonest conduct has abused that position for their personal gain, the need for stern sentences will be even greater. This approach is evident in the recent sentence of the Supreme Court in Police v Siloma Mauiatu (22 May 2001 per Sapolu CJ).

Even allowing for a discount for pleas of guilty and other mitigating factors, Faaleofi Niupulusu Posui Etelegai in particular may well be fortunate that this Court did not become seized of these appeals.

The appeals are all dismissed because of their deemed abandonment.

Solicitors:
Attorney-General's Office, Apia, for Appellant
Apa & Enari, Apia, for Respondents Mana, Mavaega and Moefaauo
T V Eti Law Firm, Apia, for Respondents Etelagi and Tufuga