National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016)

COURT OF APPEAL OF SAMOA
National Prosecution Office v Stowers [2016] WSCA 6

Case name:	National Prosecution Office v Stowers 6
Citation:	[2016] WSCA
Decision date:	19 February 2016
Parties:	National Prosecution Office (Appellant) and Vaioleti Stowers, female of Vaimoso and Tafaigata Prison (Respondent).
Hearing date(s):	16 February 2016
File number(s):	CA03/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu Honourable Justice Fisher Honourable Justice Panckhurst
On appeal from:	Police v Vaioleti Stowers (Supreme Court)
Order:	The appeal is dismissed
Representation:	P Chang and L Sio for Appellant R Papalii for Respondent
Catchwords:	Theft – obtaining by deception – bribing law enforcement officers
Words and phrases:
Legislation cited:
Cases cited:	R v Wallace [1983] NZLR 758 (CA)
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

CA 03/16

BETWEEN

NATIONAL PROSECUTION OFFICE
Appellant

AND:

VAIOLETI STOWERS female of Vaimoso and Tafaigata Prison
Respondent

Court:
Honourable Chief Justice Sapolu
Honourable Justice Fisher
Honourable Justice Panckhurst
Hearing: 16 February 2016
Counsel:
Precious Chang and L Sio for the Appellant
Rosella Papalii for the Respondent
Judgment: 19 February 2016

JUDGMENT OF THE COURT

Introduction

[1] The respondent pleaded guilty to six charges of theft, one of obtaining by deception and two of bribing law enforcement officers. She was sentenced to a final sentence of 5 years 6 months to be served concurrently with an existing sentence which still had 3 years 7 months to run. The Attorney General appeals to this Court on the ground that the sentence of 5 years 6 months ought to have been made cumulative upon the existing sentence of 3 years 7 months.

Factual Background

[2] The facts for sentencing purposes were not in dispute. The respondent was a prisoner at Tafaigata Prison serving a sentence of imprisonment for false pretences, theft and burglary. A senior prison officer called her to his office. He instructed her to obtain two vehicles for him in return for $3000. He would arrange for temporary releases so that she could obtain the vehicles. The respondent agreed.

[3] A rumour quickly spread that the respondent was selling vehicles. A second person, Fanura Mitchell, approached the respondent at the prison and agreed to pay $3000 for the respondent to procure one for her as well.

[4] On the next day the respondent left the prison pursuant to a release warrant arranged by the senior officer. She was accompanied by a police officer as escort and an associate she had arranged to meet. Following a plan devised by the respondent, her associate hired two cars from two different rental companies. The respondent and her associate supplied these to the senior officer and his son.

[5] On the following day the respondent was taken by two police officers to the senior officer’s home. There the senior officer said that he wanted a third vehicle and gave the respondent $10,000 for this purpose. The respondent and her associate obtained the third vehicle from a rental company by the same means and provided it to a member of the senior officer’s family. On returning to the prison the respondent gave $1000 of the money to one of the escorting officers and $3500 to the other as bribes to remain quiet about events of the day.

[6] A week later the respondent and her associate hired a fourth vehicle and sold it to Fanura Mitchell for $3000 as previously agreed.

[7] Hearing of this source of cheap vehicles a further person, Ulavale Pasia, approached the respondent at the prison seeking one for $3000. The respondent and her associate obtained a fifth vehicle by the same means and sold it to him. They also went on to obtain a sixth one for themselves.

[8] Some swapping of vehicles followed in order to meet the preferences of the respondent’s two customers, Fanura Mitchell and Ulavale Pasia, but the respondent and her associate finished up with one unsold vehicle. It was still in their hands when the rental car companies realised what had occurred. The missing vehicles were traced and the respondent and her associate apprehended.

Proceedings in the Supreme Court

[9] In the Supreme Court the respondent faced the 9 charges mentioned together with others. On the morning of trial the others were withdrawn and she pleaded guilty to the 9 remaining charges.

[10] In her sentencing remarks Aitken J noted the aggravating factors that the respondent was the mastermind of the scheme, that there was a high degree of premeditation and planning and that there were multiple separate thefts. The thefts and obtaining by deception attracted a starting point of three and a half years’ imprisonment. The Judge added 18 months for the bribery. She added another 18 months for her previous convictions for related offences and the fact that her latest bout of offending occurred while already in prison. From the total of six and a half years she deducted one year for the guilty plea leaving a final sentence of five and a half years imprisonment concurrently on each charge.

[11] The Judge concluded that the five and a half years she was imposing should be served concurrently with the existing sentence of imprisonment. She pointed out that the Parole Board might want to take into account the concurrent nature of the two sets of sentences when it came to consideration of parole.

The approach to concurrent and cumulative sentences

[12] In this Court Ms Chang for the Attorney took no issue with the length of sentence imposed at first instance. The sole point taken on appeal was that the sentence of five and a half years’ imprisonment ought to have been made cumulative upon the term already being served.

[13] Ms Chang submitted that wherever a prisoner offended while already serving a term of imprisonment any fresh sentence must be cumulative upon the existing term.

[14] We are unable to accept that proposition. In that situation Judges have a complete discretion to make the new sentence either concurrent with, or cumulative upon, the existing sentence.^[1] There is nothing in the relevant legislation requiring otherwise.

[15] Nor do we think that it will usually be practicable to approach this problem on a conventional totality of sentence basis. We would not expect the second judge to start by arriving at a nominal total sentence that is designed to meet the overall culpability of both the original offending and the current offending and then add a supplement to the original sentence to reflect the nominal total. That would involve an indirect form of re-sentencing for the original offending and in any event would usually be impracticable given lack of information as to the original offending.

[16] What is required in this situation is to impose a fresh sentence which adequately reflects the latest episode of offending for its own sake, but in doing so take into account the impact which the sentence will have upon someone who is already serving time in prison. In many cases that will result in a modest reduction in the term that would otherwise have been imposed for the new offending having regard to the crushing effect of a very lengthy term of aggregated imprisonment. In other words the fact that the prisoner is already in prison is one of the many personal circumstances to take into account when considering the impact of the sentence upon the offender.

[17] The critical decision for the sentencing judge will be to decide on the length of the term that must be added to the existing sentence in order to reflect the current offending. It is the addition in substance that matters. Of less importance is the formal manner in which it is achieved. The simplest approach will usually be to express the new sentence as one which is wholly cumulative upon the existing sentence. However the same result can be achieved through a concurrent sentence so long as the term of the new sentence exceeds the existing one in a way which adequately reflects the culpability of the new offending.

[18] Needless to say the length of the original sentence, and the time left to run, must be identified before deciding what term might appropriately be added to reflect the current offending. For this purpose we think that periods on parole can be ignored. They are an inherent feature of all terms of imprisonment and are therefore neutral when comparing one sentence with another. The same disregard for parole applies when comparing the original and the new terms of imprisonment in the present situation.

Application of principles to the present case

[19] In the present case Ms Chang did not criticise the sentence of five and half years imprisonment per se. Her complaint was that it ought to have been added to the original term rather than made concurrent with it.

[20] The original term in this case was three years and three months. At the time of sentencing one year four months had already been served. Another one year and eleven months remained to be served. It follows that the impact of the concurrent sentence of five and a half years was to add three years and seven months to the existing sentence. The question is whether an addition of that length was a proper sentence for the new offending taking into account all the circumstances including the special impact upon someone already serving a substantial term of imprisonment.

[21] But for one consideration we would have considered an effective addition of three years and seven months imprisonment manifestly inadequate in this case. We particularly have in mind the bribery and corruption involved. We respectfully agree with Aitken J when she said this:

Bribery of law enforcement officers is a serious offence. It strikes at the heart of any system of law enforcement. It undermines public confidence in such systems and it breeds contempt for them. Corruption is utterly corrosive. There is always a risk that it will spread and for these reasons, offenders can expect the Court to take a very stern approach when sentencing those convicted for bribery charges.

[22] We are mindful, however, that for sentencing purposes we are to assume that it was the senior police officer at the prison who initiated this whole episode. He was in a position of authority over the respondent. As a serving prisoner she was in a particularly vulnerable position. The probability is that it was difficult for her to refuse the proposition put to her.

[23] In those special circumstances, and bearing in mind that this is an Attorney’s appeal, we do not think that an effective addition of three years and seven months must be increased. It follows that the concurrent structure of the sentencing has not produced an unacceptable outcome.

Result

[24] The appeal is dismissed.

HONOURABLE CHIEF JUSTICE SAPOLU
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST

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[1] R v Wallace [1983] NZLR 758 (CA) is an example where a cumulative approach was preferred but without questioning the jurisdiction to make concurrent.