Police v Hudson [2016] WSDC 45 (30 September 2016)

DISTRICT COURT OF SAMOA
Police v Hudson [2016] WSDC 45

Case name:	Police v Hudson
Citation:	[2016] WSDC 45
Sentence:	16 September 2016
Parties:	POLICE (NPO) v LANGIANA MAHE aka AUKILANI HUDSON, male of Tafaigata, Pesega and Tonga.
Hearing date(s):
File number(s):	D1715/16.D1934/16.D1935/16.D1936/16.D1937/16.D1938/16. D1939/16.D1940/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	JUDGE LEIATAUALESÃ D M CLARKE
On appeal from:
Order:	- Convicted accordingly and sentenced to 2 years and 2 months imprisonment cumulative to your current term of imprisonment.
Representation:	Sgt. C. Stanley for National Prosecution Officer Defendant in person
Catchwords:	Causing Loss by Deception – obtaining by deception – forgery
Words and phrases:
Legislation cited:	Crimes Act 2013 s.172 (1) and s.173,
Cases cited:	Police v Fonofono Leota (Unreported) 1st August 2013; Police v Neudfeldt [2013] WSSC 106 (23 September 2013) Police v Christina Gasolo Young Yen (Unreported) 17 November 2014). Police v Stanfield and Gianno [2016] WSSC 4 (15 February 2016).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE (NPO) v LANGIANA MAHE aka AUKILANI HUDSON, male of Tafaigata, Pesega and Tonga.
Defendant

Counsel:
Sgt. C. Stanley for National Prosecution Officer
Defendant in person

Decision: 30 September 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Langiana Mahe, you appear for sentencing on 8 charges of obtaining by deception in breach of various sections of section 172(1) and 173 of the Crimes Act 2013, penalty ranging up to 7 years imprisonment for those amounts of $1,000.00 and more.
2. You entered a guilty plea to all the charges at the first available opportunity.
3. Information D1937/16 is amended by deleting “Saleimoa” and inserting “Apia” at line 2 of the place of the offence.

The Offending

4. You have confirmed that on the 22 December 2015, you were convicted of three charges of forgery in the Supreme Court of Samoa and sentenced to 45 months imprisonment for those offences. Your imprisonment term for those offences was therefore to end in or about September 2019.
5. Despite your imprisonment on 22 December 2015, these offences for which you appear for sentencing were committed by you starting on Tuesday 19 April 2016, just 4 months into your 45 month imprisonment term. The first victim of your offending, Lauina Maui came to Apia with his daughter to apply for the New Zealand quota scheme. At the Fugalei Market, you were standing outside a travel agency. You asked Lauina Maui if they were there to complete their form for the quota to which he replied yes. You then told him they had come to the right place. You told him that your name was Justin Harrison and that you are an employee of the travel agent. You told them that filling in the form has a $60.00 fee and for them to go to the Fugalei market and that you would meet them there.
6. Not long after they went to the market, you arrived and told them that you can expedite the documentation but that you would need payment of $457 for the visa fee. Lauina Maui then gave you $100.00 (Information D1935/16). You then gave him a form to fill in for the visa and pretended to call the New Zealand Immigration Office.
7. On Wednesday the 20^th April 2016 at about 10.00am, you again met with Lauina Maui and you told him that the visa interviews will be conducted in May and that he would need to pay you $216.00 for the interview. Lauina Maui then gave you $216.00 (Information D1934/16).
8. On Tuesday the 3^rd May 2016, you called Lauina Maui and asked for $816.00 to pay for the employment papers for his daughter. Lauina Maui made that payment to you at Fugalei Market (Information D1936/16). You then later called that same day and asked for another $1,200.00 claiming that it was for New Zealand insurance and that by paying this money, they would be reimbursed in New Zealand the sum of NZD$4,782.00. On the 6^th May 2016, the first victim came to Apia and gave you the $1,200.00 (Information D1937/16).
9. On Tuesday the 24^th May 2016, you called the first victim’s daughter in New Zealand requesting payment of $400.00 to pay for her father’s papers. A payment of $420.66 was remitted to you on the same day (Information D1938/16).
10. On Friday the 27^th May 2016, you demanded $2,223.00 for payment of citizenship papers and this payment was accordingly paid by Lauina Maui to you in cash (Information D1939/16).
11. The Lauina Maui then introduced you to the second victim, Fa’ala Nikolao who also wanted to move to New Zealand with his family. On Tuesday the 31^st May 2016, you demanded $1,000.00 from Fa’ala Nikolao for you to start on the paper work for his migration, which was given to you (Information D1940/16). On Wednesday the 1^st of June 2016, you also asked for payment from Fa’ala Nikolao for the payment of $1,500.00 to process his papers and which was also paid to you (Information D1715/16).
12. At all material times, you were a Prisoner serving an imprisonment term and were not employed by the travel agent you represented to be employed by.
    

The Accused

13. You are 26 year old male of Tonga and Pesega. At your sentencing hearing, you told the Court your father was deceased and your mother was in the United States of America. You offended whilst either on weekend release or as an escapee from prison. On the 1 June 2016 offending, you said that you had been released for Independence Day.
14. In your Pre-Sentence Report prepared for your sentencing in December 2015, you claim to have served as a Missionary for the Church of the latter Day Saints between 2010 and 2012 and at the time of the Pre-Sentence Report, were continuing to serve the church in various capacities.

The Victim

15. There are 3 victims of your offending. First is Lauina Maui, the 59 year old man who you deceived for almost 6 weeks. In his Victim Impact Report, he said that your offending has caused “a tough time” for his family. Their family is a family that struggles financially. The money given to you was from his children working various jobs. As a result of your offending he has felt sorry for his children for what has happened. In total, you took $4,555.00 from Lauina Maui. You have not apologized, reconciled or repaid any of the money you took. He does not forgive you.
16. Fa’ala Nikolao Kome is the second victim of your offending. She is 53 years of age. You took $2,500.00 from Fa’ala, which was money she had borrowed. She has had difficulty repaying the money to the person they borrowed from and as a consequence, they have suffered. You have not reconciled nor have you approached them or repaid any money back.
17. The third victim is Ana Tupe, Lauina Maui’s daughter in New Zealand. By your deception, you took $420.66 from her.

Aggravating features

18. The aggravating features of your offending are as follows:
    • You committed your offending whilst a Prisoner serving an imprisonment term;
    • You committed your offences when on weekend release or as an escapee;
    • Your offending was highly premeditated, planned and calculated;
    • Your scheme of deception resulted in significant financial loss to the victims amounting to $7,475.66;
    • Your offending was not isolated but ongoing multiple offending over a period of approximately 6 weeks involving 3 victims;
    • The impact of your offending on the victims has been significant financially and emotionally.

The mitigating features of your offending

19. There are no mitigating features in respect of your offending.

Aggravating factors relating to you as an offender

20. You are a recidivist offender with prior convictions from December 2015 for similar offending.
    

The mitigating factors relating to you as an Offender:

21. The only mitigating factor personal to you as an offender is your early guilty plea.

Discussion

22. When you were supposed to be in prison for similar offences from December 2015, either by escaping from prison or while on weekend release, you carried out a methodical and well thought out deception to deceive the victims and obtain a large sum of money from them amounting in total to $7,475.66.
23. In identifying potential New Zealand quota applicants to deceive, you identified some of the most vulnerable in our community who are seeking for themselves and their families a better life in New Zealand. To their great misfortune and regret, they met you. Overtime, as the victims invested more money in you and your deception, the sums of money demanded by you increased.
24. When asked why you had not apologized or repaid any of the money you had taken, you said that you had not had time to talk to the victims. You also said that you had told Police you would try to repay the money. Time is one thing you have plenty of. Furthermore, you have had over 3 months to repay the money but have repaid nothing. When you wanted money, you reached the victims with no difficulty. When it came to repaying their money, only then do you have difficulty contacting them. I do not accept what you have told the Court.
25. The Prosecution has asked the Court to impose a custodial sentence of three and a half years imprisonment. Prosecution has referred to various decisions (see: Police v Fonofono Leota (Unreported) 1^st August 2013; Police v Neudfeldt [2013] WSSC 106 (23 September 2013) and Police v Christina Gasolo Young Yen (Unreported) 17 November 2014). I have also had regard to the sentence imposed by His Honour Sapolu CJ in Police v Stanfield and Gianno [2016] WSSC 4 (15 February 2016).
26. In the circumstances of your matter, a custodial sentence is warranted. You are a recidivist offender who committed your offending when you were supposed to be in prison. You have shown no genuine remorse, not apologized neither have you repaid any of the money wrongfully taken by you. Your pretension as a committed church member like your actions is a fraud. You have learnt nothing from your imprisonment, have shown a gross disregard for the law and deceived the vulnerable and trusting in our community.
27. In sentencing you, I adopt the totality approach in sentencing (see Police v Pesaleli [2014] WSSC 13 (3 March 2014) and adopt as the lead charge information D1939/16 in respect of the victim Lauina Maui. That sentence will into the account the athe additional charges of obtaining by deception. Those other sentences will then be made concurrent.
28. For inor informaformation D1939/16, I adopt 2 ½ years imprisonment start point. I uplift that by 6 months for the aggravating features personal to you. For your early guilty plea, I deduct 10 months. That leaves an imprisonment term of 2 years and 2 months.
29. In respect of Information D1937/16, 1940/16 and 1715/16, you are convicted and sentenced to 12 months imprisonment each. For Information D1936/16, you are convicted and sentenced to 9 months imprisonment. For Information D1934/16, D1935/16 and D1938/16 you are convicted and sentenced to 2 months imprisonment each. These sentences are to be served concurrently to D1939/16.
30. You pleaded guilty on the 5^th July 2016 to the charge of theft of a touch screen mobile phone valued at AUD$500.00 that was stolen by you on the 23^rd May 2016 (Information D1941/16). That matter is adjourned for sentencing and summary of facts to 5 October 2016 at 10.00am to be sentenced together with your charges of escape from custody

The penalty

31. You are convicted accordingly and sentenced to 2 years and 2 months imprisonment cumulative to your current term of imprisonment.

JUDGE LEIATAUALESÃ D M CLARKE