Police v Sam [2016] WSDC 52 (25 November 2016)

DISTRICT COURT OF SAMOA
Police v Lei Sam [2016] WSDC

Case name:	Police v Lei Sam
Citation:	[2016] WSDC
Sentence Date:	25 November 2016
Parties:	POLICE v PAEPAE SIO LEI SAM, female of Aleisa.
Hearing date(s):
File number(s):	D3199/16.
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. On your release, you are to be under the supervision of the probation service for 9 months on the condition that you complete a program of spiritual counseling of not less than 6 weeks duration as directed by the Probation Service in accordance with the Community Justice Act 2013.
Representation:	Sgt. R. Ah Ching for Police Prosecution Defendant in person
Catchwords:	Obtaining by Deception
Words and phrases:
Legislation cited:	Criminal Act 2013 s.172 & 173(a).
Cases cited:	Comptroller of Customs v Lelua5] WSSC 72 (7 Au(7 August 2015)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

PAEPAE SIO LEI SAM, female of Aleisa.
Defendant

Counsel:
Sgt. R Ah Ching for Police Prosecution
Defendant in person

Sentence: 25 November 2016

SENTENCING DECISION OF JUDGE CLARKE

1. Paepae Sio Lei Sam, you appear for sentencing on 1 charge of obtaining by deception in breach of sections of section 172 and 173(a) of the Crimes Act 2013 and which penalty carries up to 7 years imprisonment.
2. You entered a guilty plea at an early stage.

The Offending

3. According to the Summary of Facts accepted by you, on 20 November 2015, you went to the Customs Department of the Ministry of Revenue (“Customs”) to clear a container that was imported into Samoa by a company stated in the summary of facts as “under her Company’s name.” For the purposes of sentencing, I understand this to mean the company was either owned by you or one in which you have an ownership or other material interest. The duty assessed on the container was $31,287.82. You told the Court that in the container were soft drinks valued at approximately ST$60,000.00. Payment of duty was required to be made before the container could be cleared from Customs.
4. To clear the container from Customs, you prepared and paid the duty by an ANZ cheque in the sum of ST$31,287.82 “knowing very well that there was no money in the said account to which the bank cheque was written for.” On payment of the duty to Customs, the container was cleared and you took possession and control over the container with soft drinks you told the Court were valued at approximately ST$60,000.00.
5. At some point after payment and clearance of the container by you, Customs was notified by the Ministry of Finance that the cheque had been dishonoured.
6. In your Pre-Sentence Report, you told the Probation Service that the importation of the container was a joint business venture by you and a friend. You confirmed that when you signed the cheque, “na fa’alia manino e Paepae sa ia sainia le siaki ma lona mautinoa e le’o tusa ai ma le aofaiga o lana teugatupe o lo’o i totonu o le faletupe.” You told the Court that you had pre-sold the container product to a Chinese businessman for $33,000.00 but due to the amount of the duty, your plan was to clear the container and sell the product to pay the duty. You left the products in the container until late January this year, some two months after Customs clearance and when you opened the container in January, you found that a large quantity of the stock had ‘popped’ as the container was left out in the sun. You then decided to sell the product quickly, less than half being in saleable condition. From the sales, you raised approximately ST$30,000.00. From the funds you received, you said you paid ST$12,000.00 to PFL for the cost of freight and the balance was paid to your supplier. No payments were made to Customs on account of the duty payable from the product sales.
7. Following judgment being entered by consent in October, you have paid $2,020.00 as at 14 October 2016. Your first payment towards the duty was only made in October this year, almost 11 months after you first cleared the container.

The Accused

8. According to the Summary of Facts, you are a 54 year old female of Falepuna and Aleisa. According to the Pre-Sentence report, you are 45 years of age. You are married with 4 children. You previously worked for the Development Bank of Samoa and more recently, the National Bank of Samoa. In 2011, you left the National Bank and went to work with your husband in his tile business. You told the Probation Service that since the entry of Chinese into the local tile supply business, the business has struggled.

The Victim

9. The victim of your offending is the Government and people of Samoa through the loss in revenue.
   

Aggravating features of your offending

10. The aggravating features of your offending are as follows:
    1. the amount of the loss from your deception is a significant amount totaling $31,287.82. This is a significant loss as was the value of the goods that you were able to obtain through your deception, which you said was worth approximately ST$60,000.00;
    2. your actions were premeditated and planned; and
    100. your offending was committed against customs revenue.

The mitigating features of your offending

11. In respect of your offending, I take on board that $2,020.00 has been recovered. Any benefit from this mitigating factor is however reduced by the fact that payment was made 11 months after Customs clearance and after legal proceedings were filed. There is nothing truly voluntary in your repayments.

Aggravating factors relating to you as an offender

12. You have no prior convictions so come to Court with prior good character.

The mitigating factors relating to you as an Offender:

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

Discussion

14. Samoa is a developing country with a small and fragile revenue base. A key component of government revenue is derived from the payment of customs duties and taxes at the ports. Acts of deception committed against government revenue obtained from the Customs undermine government’s revenue base and have the obvious flow on effect of compromising the services government can deliver to its people. The community as a whole is the victim.
15. There were no reported cases referred to by prosecution involving deception against or defrauding of Customs by an importer to obtain a benefit. There is however one reported decision of His Honour Sapolu CJ in Comptroller of Customs v Lelua [2015] W2 (7 Au(7 August 2015) which related to a prosecution under section 251 of the Customs Act 2014, that offence carrying a maximum penalty of 6 years imprint or a fine of up to ST$300,000.00. In that judgment, His His Honour Sapolu CJ stated:
    • “This is the first prosecution to come before this Court for defrauding the revenue of Customs under the Customs Act 2014. I have also not found any case on a similar prosecution under the Customs Act 1977 which wasaled and and replaced by the Customs Act 2014. Counsel were also not able to find any case. So there is no guidance provided in a previous SamoaSamoan case on the type of sentence to be imposed in a case of defrauding the revenue of Customs.”
16. In Comptroller of Customs v Lelua (op. cit) HonouHonourable Chief Justice added:
    • “16. In passing sentence in a case of defrauding the revenue, general deterres a predominant consideratieration to be taken into account: R v Cappadona [2001] NSWCCA 194 per McClellan J at para 33. There is also a strong need for protecting our borders and supporting the work of Customs: L v Chief Executive of the New Zealand Customs Service [2012] NZCAA 3, for Judge Barber at para [71].”
17. The importance of deterrence in sentencing in cases where there is a fraud against government revenue is also considered in R v Morris [1993] VicRp 68; [1993] 2 VR 192 (22 June 1992); and R v Boughen; R v Cameron [2012] NSWCCA 17 (27 February 2012), amongst others. In sentencing in Police v Lelua, a key factor considered by the Honourable Chief Justice was the value of the duty payable and the nature of the fraud. The Honourable Chief Justice went on to state:
    • “12. It should also be noted that the informant’s summary of facts does not show the amount of duty that was payable on the two unlawfully imported vehicles and which has been paid by the accused. So the vehicles were by 2014 when they were imported into Samoa 14 years and 10 years old. They were therefore not new but old vehicles. Their respective values must have been relatively low and the duty payable on each of them must also have been low.
    • 13. This case also involves only one incident of defrauding the revenue of Customs. It is not a case of a systematic fraud. It also did not involve a multiplicity of criminal acts committed over a period of time. This case therefore lies towards the low end of the scale.” (emphasis added)
18. Unlike Police v Lelua, you are being sentenced for obtaining by deception under the Crimes Act 2013 which carries a 7 year maximum imprisonment term. Unlike your matter, the duty payable in that matter was low and had been paid by the defendant as at sentencing.
19. 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).
20. In Police v Neudfeldt, His Honour Nelson J noted that he took into account “The seriousness and calculated nature of your offending means that an imprisonment term is necessary.” The offending involved a number of offences over a period of time that was well planned and premeditated. An imprisonment term was therefore imposed. In Police v Young Yen, an imprisonment term was also imposed where His Honour Nelson J stated:
    • “It is clear from what I have read this was a large scale fraud perpetrated on a significant number of unsuspecting victims. I am told by the prosecution more charges involving more people are in train. All these people have lost substantial sums of money which are probably non recoverable.”
21. In Police v Finau [2016] WSDC 33 (19 August 2016) and Police v Hudson [2016] WSDC 45 (30 September 2016), this Court imposed imprisonment terms for obtaining by deception where the offending was by repeat offenders for similar or the same offending. The value of the loss from the deception was however substantially lower than in your case.
22. Your offending in the words of the Honourable Chief Justice “is not a case of a systematic fraud. It also did not involve a multiplicity of criminal acts committed over a period of time.” Your deception was unsophisticated and involved a single act. Unlike Police v Lelua however, the value of the duty evaded by you amounting to ST$31,362.82 is significant making your deception more serious than was the case in Police v Lelua. You also have not paid the duty in full and in fact only began repayments last month after civil proceedings were initiated in Court to recover the duty payable. You clearly did not consider the payment of duty as a priority or even important because when you did sell the soft drinks, instead of paying the duty outstanding, you paid your supplier and your shipping agent instead. In sentencing you, general deterrence is a predominant consideration. I also bear in mind the strong need for protecting our borders and supporting the work of Customs. Accordingly, a discharge without conviction, conviction and discharge or an order that you come up for sentence is not appropriate.
23. Had you paid the duty owing to government or otherwise cooperated, a non-custodial sentence might be entertained. However, you have not and a clear deterrent sentence for the reasons aforementioned is warranted. Taking into account that your offending was an isolated offence, the start point for sentence will however be lower than that for repeat offenders. I will also balance the custodial sentence with a community based one targeting your rehabilitation.
    
24. In your case, I adopt a 6 month start point for sentence. I deduct 2 months for your early guilty plea and 1 month for your remorse, prior good character and personal factors.

The penalty

25. You are convicted and sentenced to 3 months imprisonment. On your release, you are to be under the supervision of the probation service for 9 months on the condition that you complete a program of spiritual counseling of not less than 6 weeks duration as directed by the Probation Service in accordance with the Community Justice Act 2013.
    

JUDGE LEIATAUALESÃ D M CLARKE