Police v Kapisi [2019] WSDC 15 (28 February 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Kapisi [2019] WSDC 15 (28 February 2019)

Case name:	Police v Kapisi
Citation:	[2019] WSDC 15
Decision date:	28 February 2019
Parties:	POLICE (Informant) v PILI aka BILLY KAPISI (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	District Court of Samoa – CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Atoa-Saaga
On appeal from:
Order:	In respect of all charges; the defendant be imprisoned for 27 months or 2 years and 3 months.
Representation:	Senior Sergeant Ah Ching for Prosecution Defendant Unrepresented
Catchwords:	Obtaining by deception -
Words and phrases:
Legislation cited:	Crimes Act 2013, ss.172(1)(d); 173(a); 173(1); 173(1)(b).
Cases cited:	Police v Gasolo Young Yen [2014] WSSC 195; Police v Hudson (2016) WSDC 45; Police v Punaotala Sakai (2017 unreported decision).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

PILI aka BILLY KAPISI
TOGAMAGA, male of Fagasa, Sapapalii and Vailele.

Defendant

Representation: Prosecution represented by Senior Sergeant Ah Ching

Defendant Unrepresented

Sentence Decision: 28^th February 2019

SENTENCING DECISION OF JUDGE ATOA-SAAGA

CHARGE

1. Pili, you appear for sentencing after pleading guilty to thirteen counts of Obtaining by Deception pursuant to Sections 172(1)(d) and 173(a) of the Crimes Act 2013. 11 counts exceed a thousand tala attracting a penalty of 7 years each whilst 2 counts pursuant to Section 173(1)(b) attracts a penalty of 2 years.

THE OFFENDING

2. The Summary of Facts was read out to you and you accepted that on 31^st October 2017, you paid $540 for the rental of a vehicle for 6 days from the Complainant. That on the 10^th November 2017, you paid $630 for the continual usage of the vehicle for another 7 days.
3. Two weeks later, you called the Complainant and told her that you have a brother who was arriving from overseas and that he will pay for the additional days of usage as he will be using the vehicle for your family reunion. You were also interested in purchasing the rental vehicle as your own.
4. In February 2018, you again called the Complainant and told her that your aunty Mele would be making the payment. You also had a telephone conversation with the Complainant and impersonated your Aunty Mele telling the Complainant to pay her offerings to gain spiritual and material blessings.
5. You told the Complaint to come and pay her offerings to you at Vailele. She came to Vailele and gave you $1,000 for her offerings.
6. On the 24^th February 2018, you called the Complainant to come and pay her offerings and she paid you at Taufusi the amount of $1,000.
7. On the 2^nd March 2018, you called the Complainant and she came to Tamaligi and paid you her offerings of $3,500.
8. On the 10^th March 2018 you called the Complainant and she came to Tamaligi and paid you her offerings of $3,500.
9. On the 24th March 2018 you called the Complainant and she came to Pesega and paid you her offerings of $4,500.
10. On the 6^th April 2018 you called the Complainant and she came to Tamaligi and paid you her offerings of $5,000.
11. On the 5^th June 2018, you called the Complainant and she paid SMI Fugalei and gave paid you her offerings of $3,000.
12. On the 8^th June 2018, you called the Complainant and she came and paid her offerings to you at ACE Building Taufusi of $2,000.
13. On the 15^th June 2018, you called the Complainant and she paid you her offerings of $2,000 at Taufusi.
14. On the 22^nd June 2018, you called the Complainant and she came to Tufuiopa and paid you her offerings of $1,800.
15. On the 6^th July 2018, you called the Complainant and she came to Taufusi and paid you her offerings of $2,500.
16. On the 14^th July 2018, you called the Complainant and she came to Taufusi and paid you her offerings of $2,000.
17. On the 23^rd July 2018, you called the Complainant and she came to Taufusi and paid you her offerings of $4,500.
18. The total amount that you obtained by deception in a form of offerings from the Complainant is $34,800.

The Accused

19. You are a 38 year old male of Fagasa, Sapapalii and Vailele. You are married and have one child.

Aggravating features of your offending

20. You betrayed the trust of the Complainant.
21. You were not pastor, a priest nor a servant of God yet you led her to believe that her offerings paid to you will guarantee her spiritual blessings. It shows the level of deception and culpability on your part. It shows also your lack of fear in impersonating and using the name of God to gain material benefits for yourself.
22. The extent of your deception saw you impersonating your female relative on the telephone also and assuring the Complainant of spiritual blessings.
23. You masterfully used your gentle and soft appearance to lure the victim into believing you.

Mitigating features of your offending

24. The Complainant should have done a due diligence check on you before she gave you funds as an offering. These funds were required of her every two weeks and she should have been more cautious to give offerings in the absence of any confirmation that you were an ordained pastor, priest or a servant of God or associated with any church.

Aggravating Factors as an Offender

25. There is no aggravating feature against you as an offender.

Mitigating features as an Offender

26. You pleaded guilty at the earliest opportunity.
27. You also admitted to the Police at first instance that you had used God’s name to obtain funds from her.
28. You are a first offender.
29. You have also apologized to the Complainant and have paid back the amount of $11,525.
30. You also paid $3,000 and gave the Complainant a 27’ inches fine mat after you were charged.
31. Whilst the Probation Report dated 25^th January 2019 stipulates that you had merely borrowed the funds from the Complainant, I cannot accept that explanation as the amounts given to you every two weeks are not small amounts. These were not lending to you but were given to you as offerings.
32. You had not steady income and there was no other solid means of repaying her.
33. When you were charged also, you made it clear also that the funds that you had obtained from the Complainant was under the pretense for God’s work as offering.

DISCUSSION

34. The funds you extorted from the Complainant is a large amount of funds totaling $34,800. These funds were paid within a period of 6 months with some of the funds paid fortnightly.
35. I find it quite difficult to accept how the Complainant could have given you these funds after knowing you for no more than 3 months. She even gave you a vehicle to rent for a longer period of time trusting you totally that your relatives from overseas will pay for it. The conclusion I have reached after further deliberation is that she was totally convinced that you were trustworthy, reliable and a man of integrity to receive her offerings and that you took advantage of her need to be spiritually blessed to get money off her.
36. There was pre meditation and planning on your part after you were able to continue using the vehicle on a fallacy that your brother and your aunty who you impersonated would pay for the cost of the rental.
37. You took advantage of the victim and inexorably would have continued but for the fact this complaint was filed in Court. A deterrent sentence is required and there is no escaping a custodial sentencing with entitlements to certain deductions because of the mitigating factors in your favour.
38. Now I consider the mitigating factors and the fact you have made an attempt to repay her. To date you have made payments of $11,525, $3000 and 27 inches fine mat which I will place a value of $2,500-2,800. I will take $2,800 as a value of the said fine mat. The total funds you have paid back to the Complainant is $17,325.
39. In the supplementary Probation report that was prepared by the Probation Services in Apia, the Complainant is now requesting the Court’s consideration of $90,000 owing for the use of the rental vehicle. I will not consider that amount in the absence of any additional charges filed. The Complainant can lodge a civil claim to recover those funds.
40. In considering what the appropriate term of imprisonment, I will refer to other relevant authorities.
41. In Police v Christina Gasolo Young Yen, a starting point of 6 years was adopted by the Court. There were 31 counts of obtaining by deception and the total amount was $80,146.90. She was imprisoned for 48 months.
42. In Police v Hudson [2016] WSDC 45, the Court adopted a starting point of 2 ½ years. There were 8 counts of obtaining by deception totaling $7,475.66. The defendant was sentenced to imprisonment for 2 years and 2 months.
43. In Police v Punaotala Sakai (2017 unreported decision) SDCJ Roma adopted a starting point of 3 years for 3 charges of obtaining by deception with a total amount of $10,850 and imposed an imprisonment term of 2 years and 9 months.
44. I have noted however in the latter two cases that the Defendants have previous convictions and that in all 3 cases, none of the Defendants paid back any of the funds that they have obtained by deception. You however have paid back 49% of the funds that you had obtained by deception and I will allow a deduction for that.

PENALTY

45. In respect of all the charges, I will adopt a starting point of 4 years which 48 months. I will add 9 months for the aggravating features which brings the total number to 57 months. I will then deduct a ¼ of the sentence which is 15 months leaving a balance of 42 months. You are a first offender and have had a good record prior to this offending. I will deduct 6 months for that and 9 months for the payment of funds to date leaving an imprisonment term of 27 months or 2 years and 3 months.

JUDGE ATOA-SAAGA