Police v Iakopo [2017] WSDC 4 (24 March 2017)

DISTRICT COURT OF SAMOA
Police v Iakopo [2017] WSDC 4

Case name:	Police v Iakopo
Citation:	[2017] WSDC 4
Decision date:	24 March 2017
Parties:	POLICE v MATTHEW IAKOPO
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DCJ Roma
On appeal from:
Order:	- Convicted and sentenced to 36 months or 3 years imprisonment
Representation:	I. Atoa and F. Ioane for Prosecution Defendant Unrepresented
Catchwords:	Theft – aggravating factors – mitigating factors – sentencing principles
Words and phrases:
Legislation cited:	Crimes Act 2013 s161 & 165 (b), Sentencing Act 2016
Cases cited:	Police v. Tialino (unreported, 4 September 2013) Police v. Tavana [2010] WSSC 103 (3 September 2010)
Summary of decision:

DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

MATTHEW IAKOPO male of Togafuafua
Defendant

Counsel:
I. Atoa and F. Ioane for National Prosecution Office
Defendant Unrepresented

Sentence: 24^th March 2017

ORAL SENTENCING REMARKS OF JUDGE ROMA

Charge

1. You appear this afternoon for sentence on one charge of theft pursuant to sections 161 and 165 (b) of the Crimes Act 2013. The maximum penalty is 7 years imprisonment. To this charge, you entered a plea of guilty when finalised on the 6^th December 2016.

Offending

2. According to the prosecution summary which you accepted this morning, you were employed by the complainant ANZ Bank as Digital Channels Manager Support. As such you were entrusted with various responsibilities including the installation of new digital devices and maintaining and upgrading such devices. You were also responsible for creating and changing ATM access combinations for the ANZ ATM customers. Immediately before your offending, you had been working at the complainant Bank for a period of 7 years.
3. On the 3^rd November 2016, you were informed that your service had been terminated as a result of an internal audit for missing cash from ATM machines in Savaii. This caused you much anger, and 2 days later, between 5 and 6 in the morning, you opened the ATM machine at SNPF Plaza and stole cash in the sum of $112,750.00.
4. Part of that money was used by you personally, including buying a taxi at $21,000.00, until sometime later when the Bank discovered discrepancies and the matter was reported to police for investigation.
5. In the pre sentence report, you told the Probation Service that you felt unhappy and angry at the way your service was terminated by the Bank, which was why you took the keys to the ATM machine which you eventually opened and took cash from.
6. In circumstances similar to the ones you found yourself in, aggrieved people react differently. In your case, you decided to take it out on your former employer by not only taking the keys to one of the ATMs, but also using that key to retrieve for yourself a substantial amount of cash. However aggrieved and unhappy you were, it was no excuse for the actions you resorted to. This was poor judgment and a bad mistake on your part.

Complainant

7. The complainant is the ANZ Bank for which you worked 7 years prior to your offending. In a letter to the Court dated 18^th January 2017, it confirms that $66,100.00 has been recovered and returned.
8. I am told that the vehicle that you bought with the money has been seized by Police. In the absence of information as to whether that vehicle has been sold and how much it is valued at, I make allowance for it and estimate its worth to be $16,000.00, so that for purposes of your sentencing, the amount yet to be recovered is $33.400.00.

Defendant

9. You are according to the material before me 29 years of age. You are the fourth of 7 siblings. You have had a reasonably good level of education. You have held a number of good employment positions including the one from which your service was terminated. Immediately before termination, you were paid a good salary. Clearly you are a talented individual.
10. In sports you have represented Samoa in Sevens Rugby and Touch. Though not mentioned in the material before me, that fact is known to me personally having had an association with you in sports teams in the past.

Aggravating factors relating to your offending

11. Theft charges are dishonesty offences and as such serious in themselves as they involve deprivation of victims’ interests in their own property. The seriousness is also reflected in the maximum penalty which was 3 years ago, increased to 7 years imprisonment by the Crimes Act 2013.
12. The first aggravating factor relating to your offending is the high degree of planning and premeditation. Two days after your employment was terminated, you used a key that by then you should not have had access to, to open the machine in the early hours of the morning when the chances of you being found were minimal. Clearly you used your knowledge and access to the Bank’s systems to offend against it.
13. You could have also used those 2 days to properly rethink matters and consider the consequences. But you did not.
14. The second aggravating factor relating to your offending is the substantial amount involved. $112,750.00 is a huge amount, though I acknowledge that a substantial part has been recovered and the sum outstanding is now $33,400.00.
15. The third aggravating factor relates to the impact on the victim. Apart from the loss of a huge sum of money, the Bank according to the victim impact report, committed a lot of time and resources in investigating this case.
16. The fourth aggravating factor is the breach of trust. Normally in cases of theft as a servant, breach of trust is an aggravating factor because of the employer - employee relationship. For that reason, theft as a servant charges attract a higher penalty. Your case is one of ordinary theft. It is not a charge of theft as a servant, obviously because you were no longer employed by ANZ at the time of your offending.
17. Nevertheless in my view there is still an element of breach of trust that aggravates your offending. I say that because you had been with the bank for 7 years. You held a significant position in it and because of that position, you had access to the ATMs. You were well familiar with the systems. You used your knowledge and access to such systems 2 days after your employment was terminated to steal from the Bank.

Mitigating factors relating to your offending

18. Compared to other matters that have come before the Court, this was not a series of offending. It was a single act. But it involved a large amount of money.

Aggravating factors relating to you as Offender

19. I do not find there are any aggravating factors relating to you as an offender.
20. The Prosecution has produced a previous conviction record. They relate to 3 traffic charges from 2011 to 2016. But you dispute having these convictions. Even if I accept that you have such a record, the offences are unrelated to the present charge. This Court will accordingly treat you as a first offender.

Mitigating Factors relating to you as an Offender

21. I take into account firstly your plea of guilty which was entered at the earliest opportunity. This saved time for both the prosecution and the court and is an indication in my view of true remorse on your part.
22. The second is the fact that a substantial sum has been recovered. As I have said earlier, I accept that for purposes of your sentencing the amount of $33,400.00 is yet to be recovered. That is over a quarter of the sum for which you were charged.
23. Thirdly, I have listened to your plea this morning. You accept that this was very poor judgment on your part and I do not doubt that you are genuinely remorseful. I also accept that this sentence will have a profound effect on your family. You have lost your job and therefore the ability to financially support them.
24. I must also take into account your personal circumstances, your age, education and employment background. I have read the testimonials by Archbishop Alapati Lui Mataeliga, Father Sio Vaifale and Elder Unasa Pulou Tau which are attached to the pre sentence report. They speak very highly of you. Obviously you are a person of previous good character.

Sentencing Principles

25. In my view, the most relevant purposes of sentencing in your case are firstly to hold you accountable for the harm to the victim, secondly to denounce conduct in which you were involved and thirdly, to deter you and others from committing the same offending. These purposes are clearly stated in the recently enacted Sentencing Act 2016.
26. I must also have regard to similar and comparable sentencing decisions of both the Supreme Court and this Court.
27. In its sentencing memorandum, Prosecution refers this Court to a number of cases, both of theft and theft as a servant. Whilst the sentences in those decisions vary, common in all is the fact that custodial sentences were imposed.
28. The prosecution also refers to the case of Police v. Tialino (unreported, 4 September 2013) where the defendant faced 18 counts of theft as a servant involving a total of $114,041.86 over a period of 4 months. On the 2 lead charges in excess of $10,000.00, Her Honour Malosi, J adopted a starting point of 6 years and imposed an end sentence of 5 years imprisonment.
29. One case not referred to in the Prosecution memorandum but which I find helpful is that of Police v. Tavana [2010] WSSC 103 (3 September 2010). In that case, the defendant had been employed by the Westpac Bank and over a period of a month stole an amount of $33,380.00. He repaid a sum of $4,757.00. The Supreme Court made a further allowance of $5,000.00 to $7,000.00 for a van that the defendant had bought using the stolen money (which van was later returned to the bank). His Honour Slicer, J imposed a sentence of 2 years imprisonment.
30. Considering the purposes of the Sentencing Act 2016 as well as the comparable cases, there is no question in my mind that a custodial sentence is the appropriate penalty. The sentence must denounce your conduct. It must also send a clear message to other like - minded individuals against similar offending.
31. Prosecution recommends a starting point of 4 and 1/2 years. That in my view is a reasonable recommendation. Considering the intrinsic seriousness of your offending, I have decided to adopt a starting point of 5 years or 60 months.
32. I deduct a period of 3 months for the amount that has been recovered leaving a period of 57 months.
33. I deduct a further 3 months for your personal circumstances, the fact that you have shown genuine remorse and that this Court treats you as a first offender. That leaves a period of 54 months.
34. I deduct 1/3 of that term, being 18 months for your guilty plea entered at the earliest opportunity, leaving an end period of 36 months.

Order

35. You are convicted and sentenced to 36 months or 3 years imprisonment.

JUDGE FEPULEAI AMEPEROSA ROMA