Mathews v Attorney General [2019] WSCA 7 (19 September 2019)

IN THE COURT OF APPEAL OF SAMOA
Mathews v Attorney General [2019] WSCA 7

Case name:	Mathews v Attorney General
Citation:	[2019] WSCA 7
Decision date:	19 September 2019
Parties:	MARSHALL MATHEWS (Appellant) and ATTORNEY GENERAL(Respondent)
Hearing date(s):	11 September 2019
File number(s):	CA22/19
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Harrison Honourable Justice Clarke
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	Mr. Mathews appeal is dismissed.
Representation:	Josefina Fuimaono-Sapolu for the Appellant Lemalu Herman Retzlaff & Leone Su’a-Mailo for the Respondent
Catchwords:	theft by a person in a special relationship – custodial sentence – appeal against sentence (excessive and inappropriate) – breach of trust
Words and phrases:
Legislation cited:	Crime Act 2013 ss. 162; 165 Crimes Ordinance 1981 New Zealand Crimes Act 1961
Cases cited:	Police v Burgess [2015] WSSC 215; Police v Safai [2017] WSSC 78 (27 March 2017); Police v Swanney [2016] WSSC (3 August 2016); Police v Tavita [ 2016] WSSC (29 February 2016),
Summary of decision:

CA22/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

MARSHALL MATHEWS
Appellant

A N D:

ATTORNEY GENERAL
Respondent

Court: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke

Hearing: 11 September 2019

Counsel: Josefina Fuimaono-Sapolu for the Appellant
Lemalu Herman Retzlaff & Leone Su’a-Mailo for the Respondent

Judgment: 19 September 2019

JUDGMENT OF THE COURT

Introduction

1. Marshall Mathews pleaded guilty to one charge of theft by a person in a special relationship. Tuala-Warren J convicted and sentenced him in the Supreme Court to a term of 12 months’ imprisonment.^[1] He appeals on the ground that the sentence was manifestly excessive or inappropriate.

Facts

2. Mr. Mathews is a 56 year old New Zealander. He is married to a Samoan woman with whom he has a young family. He worked as a self-employed plumber.
3. Mr. Mathews developed a commercial relationship with the owner of the Saletoga Sands Resort. They became friends. In late 2016 the owner contracted Mr. Mathews to carry out plumbing work on the resort’s septic tank and fittings. Mr. Mathews advised the owner that he had ordered a new tank from an Australian supplier. He requested the owner to provide him with a signed blank cheque to pay the supplier. He said he would include the exact amount in the body of the cheque once the supplier confirmed the price. The owner obliged because of his trust in and friendship with Mr. Mathews.
4. Mr. Mathews in fact made the cheque payable to himself for the sum of WST$8740. He presented the owner with a false invoice purportedly from the supplier to verify the amount. Some months later the owner’s suspicions were aroused. The septic tank system had not been installed. The owner discovered that it had never been ordered from the Australian supplier. He complained to the police.
5. The police charged Mr. Mathews with theft by a person in a special relationship. Initially he pleaded not guilty but later changed his plea to guilty and was sentenced accordingly. He was a first offender. He has since repaid the full amount stolen of WST8740.

Supreme Court

6. The offence carries a maximum term on conviction of 10 years’ imprisonment. Tuala-Warren J adopted a starting point of three years’ imprisonment from which she made various deductions for mitigating factors. She imposed an end sentence of 12 months.
7. Ms. Sapolu advanced Mr. Mathews appeal on the grounds that (1) the starting point adopted by the Judge was too high; (2) the Judge made insufficient allowance for mitigating factors; and (3) a community based sentence should have been imposed.

Decision

8. The crime of theft by a person in a special relationship is defined by s 162 of the Crimes Act 2013 as:
   
   • 162. Theft by person in special relationship – (1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that require the person:
   • (a) to account to any other person for the property, or for any proceeds arising from the property; or
   • (b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
   • (2) A person to whom subsection (1) applies commits theft who fails to account to the other person as so required or deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
   • (3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
   • (4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
9. Section 165 provides the sentencing criteria for theft offences as:
   • 165. Punishment of theft – A person who is convicted of theft is liable as follows:
   • (a) in the case of a theft by person in special relationship under section 162, to imprisonment for a term not exceeding 10 years; or
   • (b) if the value of the property stolen exceeds $1,000, to imprisonment for a term not exceeding 7 years; or
   • (c) if the value of the property stolen exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 2 years; or
   • (d) if the value of the property stolen does not exceed $500, to imprisonment for a term not exceeding 1 year; or
   • (e) if the property stolen is property stolen by a clerk or servant which is owned by his or her employer or is in the possession of his or her employer, to imprisonment for a term not exceeding 10 years; or
   • (f) if the property stolen is property in the possession of the offender as a clerk or servant, or as an officer or employee of the Government of Samoa or of any local authority or public body, or as a constable, to imprisonment for a term not exceeding 10 years.
10. As Mr. Retzlaff emphasized, s 162 created the new offence of theft by a person in a special relationship. Previously this type of offending fell within the definition of theft as a servant. The Crimes Ordinance of 1981 provided a maximum penalty of seven years’ imprisonment for that offence.
11. Parliament’s provision in s 165 (a) of a maximum penalty of 10 years’ imprisonment for the new offence places it at the head of the sentencing hierarchy for theft along with the analogous offences referred to in s165 (e) and (f). By comparison, the New Zealand Crimes Act 1961 provides a maximum penalty for the same offence of seven years’ imprisonment. We agree with Mr. Retzlaff that these features reflect the seriousness with which Parliament regards this type of offending in Samoa.
12. In view of the novelty of the offence Mr. Retzlaff invited us to deliver a guideline judgment on sentencing tariffs. We do not regard that step as necessary. When enacting s 165 (b), (c) and (d) Parliament specifically provided sentencing tariffs based on values for the offence of theft with a maximum term of seven years’ imprisonment. It did not elect to replicate those tariffs for the offence of theft by a person in a special relationship or the other theft charges carrying a 10 year maximum. We are satisfied that this distinction reflects Parliament’s decision to leave the sentencing ranges to the courts in the particular circumstances of each case where the nature of the relationship, the repetition of the offending and the value of the stolen property can assume particular and varying relevance.
13. In this case Tuala-Warren J undertook the appropriate culpability analysis when setting the starting point. While acknowledging that it was a single transaction offence, she gave weight to the nature of Mr. Mathews breach of a friend’s trust, the effect of the offending on the victim, the premeditated nature of his offending, his commitment of a separate act of forgery to cover up his crime and the significant amount stolen. She concluded that Mr. Mathews culpability was high. In setting the three year starting point she took into account the starting point of three and a half years adopted by Tuatagaloa J in Police v Burgess^[2]
14. In support of Mr. Mathews appeal Ms. Sapolu referred to recent Supreme Court sentences imposed for the offence of theft as a servant. However, they were not sufficiently analogous to assist.^[3] . She has not persuaded us that the Judge erred. We are satisfied that the starting point of three years imprisonment was well within the appropriate range.
15. The Judge then made a series of deductions for mitigating factors. She allowed (1) six months for Mr. Mathews full financial reparation to the victim; (2) eight months for his remorse and good character; (3) seven months for his guilty plea; and (4) three months for compassion and leniency. In total these factors represented a generous 66 % discount from the starting point.
16. Ms. Sapolu’s only complaint was that the Judge did not further isolate and account for the mitigating factors. This submission has no merit. Mr. Mathews was the beneficiary of a merciful sentence.
17. Finally, Ms. Sapolu submitted that the Judge erred by not imposing a community-based sentence. She relied on the authorities cited above^[4] where the Supreme Court imposed non-custodial sentences. However, while they were cases of multiple offending where reparation was made, the amounts were much smaller than the value of the property stolen by Mr. Mathews. In our judgment a period of supervision and community work coupled with a fine would not have been an adequate penalty here.
18. Mr. Mathews appeal is dismissed.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE

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^[1] Police v Mathews (Unreported judgment) 04 June 2019 of Tuala-Warren J.

^[2] Police v Burgess[2015] WSSC 215.
^[3] Police v Swanney [2016] WSSC ( 3 August 2016), Police v Tavita [ 2016] WSSC (29 February 2016), Police v Safai [2017] WSSC 78 ( 27 March 2017)
^[4] At fn 3 of this judgment.