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Police v Sione [2020] WSDC 17 (20 March 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Sione [2020] WSDC 17 (20 March 2020)


Case name:
Police v Sione


Citation:


Decision date:
20 March 2020


Parties:
POLICE (Informant) v ROPETI SIONE, male of Foaluga Savaii (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
The defendant is convicted and order to serve an imprisonment term of 26 months. The two months spent in custody at Tanumalala pending bail is to be deducted from that time.


Representation:
AG for the Prosecution
Defendant is self-represented


Catchwords:
Identity Fraud - Dishonestly taking or using a Passport Document - Deceitful and fraudulent conduct.


Words and phrases:


Legislation cited:


Cases cited:
Costello v R [2015] NZCA 512;
Odewale and others [2004] EWCA Crim 145;
Osmar v R [2010] NZCA 199;
P v Ah Kuoi [2016] WSSC 45;
R v Varjan CA 97/03, 26 June 2003;
R v Vhavha [2009] NZCA 588.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


AND:


ROPETI SIONE male of Foaluga Savaii


Defendant


Presiding Judge: Alalatoa Rosella Viane Papalii


Counsel: AG for Prosecution
Accused for himself


Sentencing: 20 March 2020


SENTENCE


Introduction

  1. The Accused, Ropeti Sione appears for sentence today after pleading guilty to two charges namely that:

Offence

  1. The pertinent facts of the offending are set out in the Summary of Facts (“SOF”) which you accepted. Paragraphs 3 to 16 of the SOF are reproduced below in verbatim to put the offending into its full context:

Accused

  1. Ropeti you are 30 years old, youngest sibling, born and raised in Foaluga Savaii and was married with children but now separated. You were in a de-facto relationship in Australia prior to your deportation to Samoa and have a child from that relationship. You dropped out of school at year 10 and stayed home to help out with family chores. You were previously employed as a security guard at the airport until deployed twice for seasonal work in Australia.

Victim

  1. The victims are Samoa Immigration Office under the Ministry of Prime Minister and Cabinet (“MPMC”), State, Government of Australia and our community. According to the victim impact report (“VIR”), you never once personally apologised for your offending.
  2. The other victim is your brother Ioane Masoe Felise whose identity in the form of his birth certificate you had fraudulently used to obtain a passport and later posing that you are one and the same person. Your brother however told the probation office that he forgives you and he apologises for what occurred.

Aggravating Features of Offending

  1. There are a number of aggravating features. These include the:

Mitigating factors

  1. The mitigating factors are your previous good conduct or first offender status, guilty plea and apology to the court.

Discussion

Assessment of aggravating circumstances of the offending

  1. Cases of this kind hardly come before this court. However, identity theft is common worldwide. With the global advent of digital revolution and availability of internet, online identity fraud and theft have become more prevalent. But your offending is a classic example of a traditional form of identity fraud if one is to compare it to electronic synthetic identity fraud. There is nothing sophisticated at all about your criminal conduct. The fact however that you managed to get away with it is a matter of public interest and a grave concern.
  2. Here, you knew that there was a Departure Prohibition Order (“DPO”) against you when you attempted to leave for the third time under the seasonal scheme on 27/02/17. Luckily you were detected and refused departure. You also knew that the DPO was ordered as a consequence of maintenance proceedings before the Family Court brought by your estranged wife where you were a party. She had filed this proceedings having discovered that you had embarked on an affair with a woman in Australia whilst there for seasonal work. You knew too that the Family Court had ordered that you pay child and spousal maintenance.
  3. Instead of complying with firstly the order for the payment of maintenance and secondly, the DPO, you deliberately plotted how to flee the country and all your responsibilities so you may return to Australia to be with the other woman in your life. You came up with the solution that the only means you could leave this country is if you use someone else’s identification; after all you cannot swim all the way to Australia. You went through great lengths to execute your plan to perfection. Your subterfuge worked.
  4. As soon as you identified the victim of your dubious scheme being your unsuspected brother, you then proceeded to obtain his birth certificate from the Registry of Births Death and Marriage on 6/04/17. Once received, you completed the application form for a new Samoan passport under your brother’s name as shown in his birth certificate being Ioane Masoe Felise. I would say that by this stage you already knew that a Samoan passport was not previously issued to your brother. For the certification of the identification section on the application form, you filled in as certifier the name of Neru Soli of Saleaumua, said to be a faifeau toeaina of the Church of Christ in Nu’uuli American Samoa claimed to have known you for 9 years. The two passport photos of your brother attached to the application form was also allegedly certified by the claimed certifier.
  5. You proceeded to lodged the form with the Samoa Immigration Division within the MPMC. In reliance on the truthfulness and authenticity of the information you submitted, MPMC issued the new passport number T441308 under the name of your brother, Ioane Masoe Felise. After that, you then used the new passport to obtain an entry visa to Australia and booked your ticket. All of this would have cost money so someone must have helped fund it.
  6. At the airport you were able to waltz right past the check in counter, then security inspection, and finally immigration without a glitch. Even staff at the boarding gate did not pick up on it. I am amazed you were even able to do this as I am a frequent traveller and one of the routine due diligence process staff perform at check in, entry to go through security, immigration and boarding gate is to double check that the identity of the person travelling matches the ID shown on the passport. This suggests there was a possible lapse in ensuring this was done on the day you left.
  7. You must have felt a great sense of relief when you boarded the plane thinking you were on your way to freedom. But this was short lived. The wife you left behind eventually found out you fled the country and she lodged a complaint with immigration questioning how you managed to do this even with a DPO in place. MPMC then conducted their investigations where they discovered you used your brother’s passport to flee. They sought an extradition order with the assistance of Australian Federal Police (“AFP”). At the same time, Australian immigration had contacted the person known as Ioane Masoe Felise whose identity you assumed that the visa had expired. You were subsequently detained in Australia, later deported, and the rest is history.
  8. I have deliberately canvassed the above to reflect the significant level of premeditation. This was by no means a spontaneous offending. It was calculated. You had a dream and you thought hard about how to make it a reality. You executed it with precision and to perfection without once considering the repercussions. Your offending, has had a significant impact on this country, MPMC and in particular Samoa Immigration Division. The harm is not insignificant. Samoa Immigration was exposed to adverse criticisms on the due process involved in issuing a passport. Members of the public questioned how you managed to evade our boarder control system with a DPO in place and even traveling posing as someone else. The stability and security of Samoa’s border management system came under attack.
  9. Inevitably the reputation of Samoa Immigration division locally and internationally was tarnished as a consequence of your offending. The ranking of the value of our passport was also affected. A passport when issued to anyone is owned by the State or government. It is not your personal belonging. As a Samoan, you are entitled to it by virtue of being a Samoan citizen. It is issued solely for the purpose of verifying your nationality, date and place of birth and for international travel. But it is not for you to commit a crime. Here however, when Samoa Immigration issued the passport in good faith to the holder Ioane Masoe Felise, it was on the belief that the holder would be the person using it. Samoa Immigration was not privy at all to your evil and dubious scheming. There is nothing before me to infer this was the case.
  10. Your conduct was deceitful, dishonest, and fraudulent. You used the stolen identity of your brother to obtain an unfair advantage namely, to flee the country to be with the other woman in your life in clear contempt of the DPO the court issued. The boarder control system did not detect it was actually you who left the country possibly because the bio profile data on your real passport from which the DPO was issued did not match the details of the one you had in your possession. But one wonders however, if the immigration officer actually cross checked passport photo ID matched your physical appearance. Perhaps it is timely Samoa review its traveller verification service by installing facial recognition cameras, if they have not done so already.
  11. In the nutshell, you used the false passport to authenticate yourself and assume the identity of your brother to obtain a visa, check in at the airport when you departed and to enter Australia. By obtaining a visa using the false passport, you actually circumvented Australia’s visa process especially since they too relied on the correctness of the information submitted. When you used the same passport to enter the frontiers of Australia under false pretence, it brought under the microscope their legitimate security controls. Your criminal conduct was further perpetuated by the fact that for more than a year, you assumed the same false identity whilst living in Australia.
  12. Your offending is also exacerbated by the fact that Samoa Immigration had to source funding to execute your extradition from Australia. This was by no means a cheap exercise. It was fortunate that the related costs was covered by Samoa’s international partners such as Australian Federal Police (AFP) and immigration services. You did not pay a single sene towards this exercise. According to Samoa Immigration, your offending resulted in reform and complete overhaul of their due diligence division. This required the employment of additional staff to man it which proved costly. Of course it would have been costly but these changes are an absolute must in the public interest to tighten up security and due process. This is a cost borne by the public and tax payers. Again you did not pay a single sene towards it being too busy with your love life. You have not even made any attempts whatsoever to right the wrong and harm you inflicted on the victims.
  13. Your conduct is disgraceful. For someone who was raised in a close knit family and community at Foaluga Savaii, I am sure your parents must have taught you well. You openly professed your love for your parents yet you did not once consider the stigma and communal shaming your actions brought upon your parents, family, church and community. No doubt your parents must be suffering from your shameful conduct which has lowered their standing in the community. Whilst I empathise with your parents and the dilemma they are caught in, it would be remising of me not to pass a stiff sentence given your high degree of culpability.

Factors in mitigation

  1. In your favour you pleaded guilty to both offences, was of good character prior to your offending and apologised to the court. But I place very little weight to your professions of remorse in court. If you were genuinely repentful you would have apologised to the victims. You cried twice in that dock begging for leniency and a chance to look after your parents blaming your estranged wife for keeping all the money you remitted whilst in Australia. This is a lame excuse and so typical of defendants who lack remorse. Instead of accepting responsibility you were quick to shift the blame on your estranged wife who is a victim of your desertion and treachery. You are the author of your own peril. Had you thought of your parents when you plotted your escape scheme, you would not be standing in that dock.

Purpose and Principles of Sentence

  1. In sentencing you I take into account the purposes of sentence set down in s5 Sentencing Act 2016 (“SA”) which includes:
  2. I also bear in mind the principles of sentencing applicable to you as set out in s6 which includes:
  3. I have cast my mind to the principles of the Community Justice Act 2008 which promotes the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.

Appropriate Sentence

  1. I consider the degree of culpability of the offending to be on the high end of the scale which calls for a stiff custodial sentence. It is also unsafe to keep you in the community. There are potent public interest and policy considerations that must be taken into account which means deterrence and denunciation is of utmost importance.
  2. In my respectful view, stolen identity and the deceitful and dishonest conduct flowing from it is a serious type of fraud. It is particularly pernicious and should be properly penalised. In the English case of Odewale and others[1] Scott Baker LJ observed there was an explosion of identity fraud and “...[In] our judgment, an identity fraud is a particularly serious form of fraud."
  3. There are no reported cases in Samoa but an analogous case in NZ is R v Vhavha[3] Briefly, in April 2002, the appellant used a fraudulently obtained South African passport to enter New Zealand on a visitor’s permit. After arriving in New Zealand the appellant used the false passport and false medical and police certificates to obtain work permits. The defendant’s immigration status and fraudulent acts was eventually discovered and he was charged accordingly. He appealed his custodial sentence and rejection of home detention. The Court of Appeal aptly described the severity of immigration and passport offences in the following manner:[4]
  4. The above quoted was also referred to by the Court of Appeal in Osmar v R[5] and I have no hesitation adopting the same view here. On the international level, Samoa is but a tiny nation by comparison to NZ. Unlike NZ, we do not have the resources to upgrade our passport and immigration system each time an incident like this occurs. MPMC have been hard hit by challenges of this nature including the fraudulent sale of Samoan passports to foreigners[6] which made the headlines in the 1990s and recent times.
  5. There are general principles relating to fraud cases already adopted by our Courts which equally applies here. As observed by Sapolu CJ in P v Ah Kuoi[7] there is no tariff case for fraud cases in Samoa. He referred to the approach in NZ as set out by the Court of Appeal in R v Varjan[8] the leading case in NZ where at at [22] – [23] it is stated:
  6. Sapolu CJ further observed that the guidance provided in R v Varjan has been applied in a number of New Zealand fraud cases including the NZ Court of Appeal in Costello v R[9] which was concerned with appeals against sentence on charges of obtaining by deception.
  7. I reiterate this is a particular serious type of fraud and identity smuggling, calling for a stern deterring sentence to denounce your conduct. It is important that you and the public know that this Court and our community do not condone this type of offence. To use the words of the Court of Appeal in Vhavha, acquiring and deploying a false document is a deliberate and premeditated act designed to circumvent immigration and frontier controls. An assault of this nature to the integrity of a State’s borders. It is important to send out a message to you and others in the community that there will not be any mercy if a person dares to test the law. Those who fraudulently and dishonestly challenge the integrity of our passport, immigration and border control system can expect that strong deterrent sentences of imprisonment will be imposed. This court condemns your fraudulent conduct.

Recommendation for Sentence

  1. The leading offence here is the dishonestly taking and using a passport document attracting a penalty of 7 years. Second to that is identity fraud with a penalty of 5 years. I take into account the totality principle. Prosecution requests that the court considers at sentence the fact that you should be paying maintenance to help raise your children. They propose a 12 months’ imprisonment term. Probation proposes a probation term of 2 years.
  2. With all due respect to the Prosecution, they should know by now that the maintenance case is a civil proceeding which is separate. The Family court has its own legal processes in place for non - payment of maintenance and arrears. The offences the defendant appear on for sentence are strictly criminal in nature.
  3. I have decided that there is no other method of dealing with you Ropeti other than by custodial sentence. I am of the view that a sentence closest to the prescribed imprisonment time must be imposed.

Penalty

  1. I consider a starting time of 4 years or 48 months to be appropriate. I will deduct from that time, 8 months for your good character or first offending status thereby leaving 40 months. I will deduct a further 2/3 or 14 months for your guilty plea and limited remorse.
  2. You are convicted of both counts and order to serve an imprisonment term of 26 months. The two months you spent in custody at Tanumalala pending bail is to be deducted from that time.

JUDGE A R VIANE PAPALII

[1] Odewale and others2 [2004] EWCA Crim 145:
[3] R v Vhavha ]2009] NZCA 565
[4] Ibid at [22] – [23]
[5] Osmar v R [2010] NZCA 199.
[6] See P v David unreported decision of Tuala –Warren L delivered on 14 March 2019)
[7] P v Ah Kuoi [2016]WSSC 45
[8] R v Varjan CA 97/03, 26 June 2003
[9] Costello v R [2015] NZCA 512

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