Police v Oloapu [2016] WSDC 42 (7 October 2016)

DISTRICT COURT OF SAMOA
Police v Oloapu [2016] WSDC 42

Case name:	Police v Oloapu
Citation:	[2016] WSDC 42
Sentence:	7 October 2016
Parties:	POLICE v MOELATA OLOAPU, male of Satapuala
Hearing date(s):
File number(s):	D3768/16.
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	JUDGE LEIATAUALESÃ D M CLARKE
On appeal from:
Order:	- Convicted and sentenced to 3 months imprisonment.
Representation:	I Atoa for National Prosecution Office Defendant in person
Catchwords:	Theft
Words and phrases:
Legislation cited:	Crimes Act 2013 s.161 & 165 (c)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

MOELATA OLOAPU, male of Satapuala
Defendant

Counsel:
Ms I Atoa for National Prosecution Office
Defendant in person

Sentence: 7 October 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Moelata, you appear for sentencing on one count of theft in breach of section 161 and 165(b) of the Crimes Act 2013. The maximum penalty for theft for which you have pleaded guilty is 7 years imprisonment. You pleaded guilty to the charge on the 13^th September 2016.

The Offending

2. You are employed as a security guard. On the night of 22^nd and the morning of the 23^rd of July 2016, you were at work at the Faleolo Solar Company. When work had completed on the 22^nd of July, certain items belonging to a contractor that works on the site were left outside a container. These were a steel saw valued at $501.00, a grinder valued at $300.00, a ¾ inch ratchet set valued at $600.00 and a pair of boots valued at $88.00, the total value of which is $1,489.00.
3. When you were on duty that night and into the morning of the 23^rd of July 2016, you found these items and stole them. The victim of your theft who was a contractor at the work site came to work early that morning. When she arrived, you spoke with her and reported the items as having been stolen. You told her that people broke into the work site that night and stole them. The matter was reported to Police and you were subsequently charged for the theft of these items.

The Accused

4. You are a 44 year old male of Vaisala Savaii and Satapuala Upolu. You are married with 4 children. In the Pre-Sentence Report prepared on your behalf, your wife says that you are a good father, honest and that you have a helping spirit for anybody who needs help. You also told the Probation Service that the reason why you stole the items is that another employee also stole items from the site so you did the same because you were angry with that other worker.

The Victim

5. The victim is a 28 year old female of Sinamoga.

Aggravating features of Offending

6. The aggravating features of your offending are as follows:
   • (i) the gross breach of trust by you;
   • (ii) the value of the items stolen by you was substantial; and
   • (iii) after committing your offending, you then continued your dishonesty by saying to the victim that others broke into the property and stole the items.

The mitigating features of your offending

7. The items were returned to the victim. This was however due to Police investigating the matter and obtaining these from you. There was apparently nothing voluntary in your return of the items.

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. I take into account your early guilty plea and remorse.

Discussion

10. Prosecution has sought a sentence of supervision and 40 hours of community work. There are no submissions filed or referencing to previous sentencing by the Courts in similar matters to assist in sentencing. The Courts have however clearly enunciated the necessity for deterrence in sentencing when it comes to thefts by security guards, whether as employees of the victim or as a contracted security guard through a security company to the victim.
11. In Police v Taase [2012] WSSC 54 (2 April 2012), His Honour Nelson J stated:

“I am also mindful that more and more security guards are being prosecuted for thefts from their employers. This is becoming trendy. I am of the view the message that should be sent to such people must be and unambiguous. As a security guard you carry a large degree of responsibility. You You abuse that you are likely to be sent to prison.”

12. In Police v Olo2015] WSSC 232 (20 July 201y 2015), His Honour Nelson J went further and stated:
    • “The message must go out to all security guards. You are the last line of defence of an employer. Your job is to catch the thieves not become one. This was a severe breach of trust by defendants.”
13. The prevalence of this type of offending has also not escaped the notice of the Courts. In Police v Ioane [2014] WSSC 130 (28 April 2014) also involving a security guard, His Honour Nelson J also stated:
    • “Theft by people who work for other people is very prevalent in our country. Because of that the usual penalty the court imposes is to send people to prison. The message must be that if you do this you will end up there. There is no question in my mind what you did must be met by penalty of imprisonment, especially Amoora since you have already received a chance from this court.”
14. Whilst deterrence in sentencing can be achieved by means other than imprisonment, in circumstances where the theft is committed by a security guard, the person specifically entrusted and paid to protect that same property, they must be prepared for imprisonment. The offending has become prevalent and the breach of trust gross. As the Courts have said earlier, you are there to stop the thieves and not to become the thief. In your case, you then tried to cover up your dishonesty by lying about it and shifting blame to someone else. A custodial sentence is warranted in the circumstances and as a warning to others who might think of doing the same.

The penalty

15. Having regard to the aggravating and mitigating features of your offending, I adopt a 5 month start point for sentence. I deduct 1 month for your remorse, prior good character and personal circumstances. I also deduct 1 month for your guilty plea. You are convicted and sentenced to 3 months imprisonment.

JUDGE LEIATAUALESÃ D.M. CLARKE