Police v Faotu'i [2016] WSDC 24 (17 June 2016)

DISTRICT COURT OF SAMOA
Police v Faotu’i [2016] WSDC 24

Case name:	Police v Faotu’i
Citation:	[2016] WSDC 24
Decision date:	17 June 2016
Parties:	POLICE v ANNIE FAOTU’I, female of Vaitele uta and Nuu fou.
Hearing date(s):
File number(s):	D1131/16. D1630/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to 2 months imprisonment. On your release from prison, you are to serve a six (6) month supervision term.
Representation:	I Atoa and SGT Stanley for prosecution Defendant in person
Catchwords:	Theft – breach of trust - aggravating features – mitigating features - sentence
Words and phrases:
Legislation cited:	Criminal Act 2013 s.161 & 165 (b)
Cases cited:	Police v Vaifale [2010] WSSC 60 (15 March 2010) Police v Puni [2014] WSSC 57 (16 October 2014)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

ANNIE FAOTU’I, female of Vaitele uta and Nuu fou.
Defendant.

Counsel:
I Atoa and Sgt Stanley for prosecution
Defendant in person

Decision: 17 June 2016

SENTENCING DECISION OF DCJ CLARKE

1. Annie Faotu’i, you appear for sentencing on one count of theft in breach of section 161 and 165(b) of the Crimes Act 2013. You pleaded guilty to the charge on the 2^nd May 2016. The maximum penalty for theft for which you have pleaded guilty is 7 years imprisonment.

The Offending

2. On 27 May 2016, you confirmed the Summary of Facts as read to you. According to the Summary of Facts, you were employed “as a house girl at the victim’s house.” On the 5^th April 2016, you were cleaning the victim’s house. You came across the victim’s purse which was on the television in the sitting room. You stole the victim’s purse which contained a large sum of cash amounting to ST$3,205.47 made up of Samoan tala and Australian and New Zealand dollars. The purse also contained a wrist watch valued at SAT$1,233.12. The total value of the cash and watch stolen by you came to ST$4,438.59.
3. You told the Probation Service in your Pre-Sentence report that on the day you stole the victim’s purse, your mother had been preparing her brothers for their travel to Australia. Some of the money stolen you gave for the brothers’ travel to Australia, you also converted the foreign currency to Samoan tala and used it “for family shopping and to purchase” yourself clothes. The day after you stole the money, you had $50.00 left. Prosecution told the Court that the watch was recovered. In the Pre-Sentence Report, it is also confirmed that $900.00 had been repaid to the victim. The unrecovered loss to the victim amounted to $2,305.47, before further restitution payments were made on 14 June 2016.

The Accused

4. You are an 18 year old female of Vaitele-Uta and Nu’u-Fou. According to the Pre-Sentence Report, you left school at the end of year 7 by your own choice. You are single and were employed as a “house girl” at the victim’s business and home. You were paid $110 per week. Since your offending, you have stayed at home and helped at home. At your sentencing hearing as well as in your Pre-Sentence Report, you expressed remorse for your offending. You told the Court however that your remorse stemmed from being caught and being brought before the Court.

The Victim

5. The victim of your offending is a 64 year old female of Taufusi. She is a married woman with 7 children. In her Victim Impact Report, she says that she no longer trusts anyone in her home. She also said that the money you had stolen from her was her savings to attend a wedding overseas on her trip to Australia and New Zealand. As a result of your theft, the victim could not travel to Australia or New Zealand and she could not attend the wedding.

Aggravating features of Offending

6. The aggravating features of your offending are:
   • (a) the value of the goods and cash stolen in the sum of ST$4,438.59. That is a significant amount by Samoan standards;
   • (b) the breach of trust in your offending. You were employed in the victim’s business and home and were a trusted worker for the victim. As a result of your offending, the victim no longer trusts people in her home;
   • (c) Your offending had at the time a significant financial but continuing emotional impact on the victim; and
   • (d) Your offending resulted in the victim not travelling to Australia and New Zealand and to the the wedding that she had been saving for.

The mitigating features of your offending

7. The mitigating feature of your offending is that the wrist watch was recovered and returned to the victim. Prior to 31 May 2016, you had also made payment of $900.00 to the victim. At your sentencing hearing on 31 May 2016, the matter was also adjourned to allow you to pay restitution. On 14 June 2016, you paid $2,204.47 into the Law Trust Account of the Courts which has since been ordered released to the victim. Whilst this is approximately $100.00 short of the full amount stolen, I accept that the short payment is due to a calculation error as opposed to any lack of commitment on your part to pay the sum stolen in full. Prosecution nevertheless accepted this as payment in full. I also take into account your apology to the victim and that this has been accepted by the victim.

The aggravating factor relating to you as an Offender:

8. You are a first offender and there are no aggravating features personal to you as an offender.

The mitigating factors relating to you as an Offender:

9. First, I take into account that you entered a guilty plea at the earliest opportunity. Second, I take into account your age. You are 18 years of age and are young. Whilst you expressed remorse to the Court and to the Probation Service, you agreed that your remorse stemmed from being caught as opposed to any genuine remorse for your wrong doing so I will give no credit in those circumstances.

Discussion

10. Prosecution initially applied for a sentencing start point of 3 years imprisonment. Following payment of restitution, Prosecution submitted that a non-custodial sentence was open to the Court.
11. I have had regard to the cases referred to by Prosecution in the Sentencing Memorandum and more generally, to a review of sentences for theft. There are a wide range of sentences imposed by the Courts of Samoa for theft. These vary between custodial and non-custodial sentences but often in cases involving first offenders, a non-custodial sentence is imposed. This is in contrast to cases of theft as a servant where many employees are sentenced to an imprisonment term despite being first offenders, particularly where the sum stolen is significant. As stated by His Honour Nelson J in Police v Vaifale [2010] WSSC 60 (15 March 2010) which involved sentencing on a charge for theft as a servant:
    • “Like drug offending, theft as a servant is one of the most prevalent offences in our community and because of that and the seriousness of such offending and its consequences to a small community, the court has evolved a normal sentencing policy for such offences of imprisonment unless there are strong reasons why a case should be treated differently. And for repeat offenders, come knowing that nothing will save you from prison.”
      
12. You have been charged with theft and not theft as a servant. Nevertheless, there is no question that you were an employee of the victim and that breach of trust is a serious aggravating factor in your offending.
13. His Honour Chief Justice Sapolu in Police v Puni [2014] WSSC 57 (16 October 2014) in terms of sentencing stated:
    • “Whilst previous sentences in comparable cases are a relevant consideration for sentencing purposes, it is a cardinal principle of criminal sentencing that the senten each case depends prds primarily on the facts of that case.”
14. Your offending was an opportunistic theft. You had access to the victim’s home by virtue of your employment by the victim. In gross breach of that trust, you stole her purse containing a significant amount of money and an expensive wrist watch. Whilst your theft of the victim’s property may have been opportunistic, what you then did next with the money was calculated and considered. You gave part of the money away to family members travelling to Australia and converted the other money for your personal use and that of your family. Your spending spree must have been extravagant because by the day after your theft, all you had left from an original cash amount of ST$3,205.47 was $50.00.
16. In sentencing you, the protection of the public is a relevant factor. As stated in England in R v Howells [2004] EWCA Crim 2297; [1999] 1 Cr App R 98, 104 the Court of Appeal said:
    • “Courts should always bear in mind that criminal sentences are in almost every case intended to protect the pu whether by punishing the othe offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.”
17. Theft by domestic household staff from their employers is a prevalent offence in Samoa. Your victim has lost trust with people in her home. In your case, it also resulted in the victim not travelling to Australia and New Zealand and not going to a wedding overseas that she had no doubt saved a long time for. Given the large amount stolen by you, the significant breach of trust, the prevalence of this type of offending and the impact of the offending on the victim, a custodial sentence is warranted despite the fact that you are a first offender, your age and that restitution of almost all of the sum stolen has been made. This is also to deter other like-minded people from committing similar offences because of its prevalence; however, the mitigating factors will substantially reduce the custodial term I will be imposing.
18. Taking into account the aggravating and mitigating factors of your offending, I will commence with a sentencing starting point of 3 months imprisonment. For your guilty plea and young age, I will deduct 1 month. That leaves an imprisonment term of 2 months imprisonment.

The penalty

19. You are convicted and sentenced to 2 months imprisonment. On your release from prison, you are to serve a six (6) month supervision term.

JUDGE LEIATAUALESA D M CLARKE