Police v Faalogo [2023] WSDC 2 (11 September 2023)

IN THE DISTRICT COURT OF SAMOA
Police v Faalogo [2023] WSDC 2 (11 September 2023)

Case name:	Police v Faalogo
Citation:	[2023] WSDC 2
Decision date:	11 September 2023
Parties:	POLICE (Informant) and CATHERING TAFA FAALOGO, female of Levi Saleimoa (Defendant)
Hearing date(s):
File number(s):	DC/CR 2023-01852
Jurisdiction:	DISTRICT
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	You are convicted and sentenced to two (2) years and four (4) months imprisonment. During your incarceration, you are to attend appropriate rehabilitation programmes as directed by Corrections Management including the Salvation Army drugs and alcohol programme. Your photo should be published online on Police website and elsewhere to forewarn the public of your activities and as a form of deterrence.
Representation:	Police Prosecution Defendant appears in Person
Catchwords:	Obtaining by deception – tourists as victim – adverse repercussions of offence on tourism industry and country – professional con artist – recidivist
Words and phrases:
Legislation cited:
Cases cited:	P v Fereti [2017] WSDC 19 R v Filo [2007] NZCA 20 R v Rautahi CA 78/2011 [2011] NZCA 351.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

CATHERINE TAFA FAALOGO female of Levi Saleimoa

Defendant

Presiding Judge: Alalatoa Rosella Viane Papalii

Representation: Police Prosecution
Defendant appears in person

Sentencing Date: 11 September 2023

SENTENCE

Introduction

1. The defendant is charged with one count of obtaining by deception contrary to s172(1)(2)(a) and 173(a) Crimes Act 2013 attracting a penalty of a maximum of 7 years’ imprisonment. She pleaded guilty to the offence; bail was denied and she remained in custody pending sentence.

Summary of Facts

2. The incident occurred at Faleolo International Airport (“the Airport”) on 30 June 2023 at about 6pm. The victims were tourists who had just arrived at the airport and were in Samoa on vacation. In the arrival lounge, they were approached by the defendant who presented herself as an employee of one of the local resorts (“the Resort”)^[1] and that she was there to wait for their arrival. After this, the defendant then ushered the victims to the van (“the Van”) of the Resort which was parked alongside other resort vehicles whilst the drivers were in the arrival foyer waiting for their guests. At the van, the defendant continued her deception by pretending to make calls to the Resort about the victim’s reservation. She then informed the victims that they were required to pay SAT$400 upfront for their reservation and to uplift the receipt from the Resort.
3. Deceived by her representations, $400 cash was handed over at which point the defendant made up an excuse and fled. The victims only realised they were conned when the driver arrived and confirmed the defendant did not work with him at the Resort. The matter was then reported to Police. Unbeknown to the defendant, the victims were not as gullible as they took a photo of her which assisted with police investigation leading to her being apprehended and charged.

Accused

4. I am going to directly address you Catherine from here on. You are 40 years old with children in Australia. You have previous convictions (“PC”) for similar offending. The PC shows that on 24/01/14 you were convicted of obtaining by deception and a suspended sentence of 6 months was imposed. On 01/05/15 you were convicted of theft and sentenced to 18 months’ imprisonment. On 19/05/15 you were again sentenced for theft with a conviction and order to serve imprisonment for a term of 18 months cumulative to your sentence of 01/05/15. On 05/08/15 you were again convicted of theft and sentenced to 18 months to be served cumulatively with other sentences. Another conviction for theft was entered on 15/08/15 and an imprisonment term of 19 months to be served cumulatively. The last entry is on 05/02/20, where you were convicted for theft and sentenced to an imprisonment term of 2 years. You were released on parole in 2021 and stayed with your family at Matautu Falealili.
5. I do not find your version of events in the probation report credible at all. In fact, it is a complete fabrication taking into account the summary of facts you accepted. I will not place any weight on it suffice to say that you disclosed some information there claiming that on the date of the incident, you were at Aleisa selling “Ice” for your uncle. Police should look into this to investigate if there is any substance to it regarding incriminating criminal activities you alleged involved your uncle.

Victims

6. The victims were a couple from France who had visited Samoa on vacation. They were obviously disappointed and suffered loss. They never recovered their SAT$400 and there was no reconciliation either. They have since returned to their home country.

Discussion

7. There are a number of aggravating factors of your offending. Your conduct was calculated and there is a significant degree of premeditation and manipulation. You were very ingenuous in your deception. You convincingly put on quite a show which lured the victims to rely on it. You were quite bold in executing your ploy in broad daylight and in a public place. The degree of culpability is high.
8. You welcomed the victims, introduced yourself as an employee of the Resort then ushered them to the Resort van. Outside the van, you pretended to make calls to the Resort and after this Oscar performance, you informed the victims that they were required to pay $400 upfront to confirm their reservation and that the receipt could be uplifted from the Resort upon check in. I have heard you speak English in Court and I must say I was quite impressed. I am certain the victims would have been further deceived by your fluent English accent which added the icing on the cake of your ACT 1 SCENE 10 screenplay. The unsuspected victims fell prey to your impressive acting skills and deception. Little did they know that you are not just a pretty face with perfect English, but a professional con artist with criminology qualifications in theft and other dishonest offences. In other words, you are as the Elvis Presley song goes, “a devil in disguise.”
9. The harm caused by your offending to not only the victims but also this country and the tourism industry is not insignificant. It is irreparable and overwhelming. It is publically recorded that since the outbreak of COVID -19 in early 2020, State of Emergency Orders (“SOE”) were activated in the interest of national security and public health and safety. These SOEs included the closure of international borders and only approved repatriation flights were permissible.
10. It is unquestionable that COVID -19 significantly impacted our economy and every other individual in this country and elsewhere. The closure of international borders meant a once thriving tourism industry spiralled down under. Every single tourist operator suffered and so did this country’s economy.
11. So when the Hon. Prime Minister Fiame Naomi Mataafa announced in May 2022 the reopening of international flights to the travelling public here and abroad, it was widely applauded and celebrated. Less than a year after that announcement, we see familiar welcoming sights of tourists on our shores. Tourism businesses are slowly starting to recover. The struggling farmer selling fruits and crops on the side of the road is benefitting; so too is the young street vendor selling wares around town. The once abandoned beaches at Lalomanu and elsewhere are now filled with tourists. The moms selling handicrafts for a living finally have some customers. The restaurants in town and hotels around the country are buzzing with activities.
12. It is without a doubt that the re-opening of international borders brought with it renewed hope. In its wake, Government put in place financial incentives to assist resurrect the tourism industry. Samoa Tourism Authority (“STA”) and other stakeholders launched global and nationwide campaigns marketing “Beautiful Samoa” as a must visit destination on anyone’s bucket list. Samoa as a community and nation is still working collaboratively to achieve this. We have a long way to go but we remain optimistic that we will eventually get there. This is not at all a cheap exercise. It is costly, time consuming and draining. Like elsewhere, we are healing from the impacts of COVID -19 but persevering.
13. At the time of your offending therefore, our people, meaning this beloved nation of ours, were just starting to taste the sweet fruits of hard labour in reviving this industry and our economy overall. But you dared to commit a crime of this nature at this critical time, thereby sabotaging joint efforts, to revive the reputation of Samoa on the international level. Your deceitful actions, tainted the reputation of Samoa, our people and the tourism industry. With the viral use of social media platforms, an adverse review from a visitor can be quite damaging. Your disgraceful and degrading conduct brought shame on this country and its people. Furthermore, it would have had the consequential effect of raising doubt in visitors choosing this beautiful paradise we call home, as a destination for their next vacation.
14. Most aggravating is the fact that it marred the whole experience of the victims. The fact that it took place at the airport which is their first point of arrival where first impression lasts, further exacerbates your offending. You turned the first experience of this lovely couple in Samoa to a “Nightmare on Elm Street”. They were excited about their vacation to exotic Samoa and anxious to visit our best spots as widely advertised. But your actions were a joy killer. It dented their enthusiasm. They were here for two weeks and they left without recovering their money.
15. You are a recidivist with a predilection to commit similar offending. Your previous stints with the law involved deception and dishonest offending. This current matter adds to your long list of criminal achievements. This is an aggravating factor. As was the NZ Court of Appeal stated in R v Filo:^[2]
    • “Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 at 597:
      • “...The previous convictions of a prisoner may indicate a predilection (sic) to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.”
16. As I observed in P v Fereti^[3] the approach discussed in R v Casey and R v Howe is consistent with s 9(1)(j) of the NZ Sentencing Act 2002 as well as our own s7(1)(j) SA. I bear in mind that as a sentencing Court, I must in the circumstances of your offending, balance two competing principles which as was said in R v Rautahi^[4] include:
    • “...[T]he principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.”.

Sentencing Principles and Purpose

17. Sentencing principles of deterrence, denunciation and accountability are at the top of this sentence. I also take into account the provisions 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. Your impressive PC record speaks volume of your propensity conduct. I view you as highly risky to innocent, gullible and vulnerable members of the community, including visitors to our shores. The public must be protected against your criminal schemes. Equally important, tourists visiting Samoa must be assured of their protection and be secured in the knowledge, that Samoa is a safe place to visit.
18. I have only one sentence in mind and that is incarceration. General deterrence is important here. Members of the public must be forewarned that if they dare to commit offences of this nature on visitors to our shores, then rest assured it will be met with a custodial sentence. The Court does not condone this type of conduct and it will not be merciful.
19. I have considered your personal circumstances. At first glance, it appears from your Probation report that you have problems with substance abuse and feed your bad habits from illegal activities you commit. This is a lame excuse. I see this as another one of your treacherous ploys for leniency and to divert attention to therapy. I am not going to fall for it. Your conduct is unacceptable.
20. You professed your love for your children and that you wish to be reunited with them. I do not believe you. Your professions of love and affection is nothing more than sugar coated empty words to appease the Court for some empathy. Had you genuinely love your children and family you would have learnt a harsh lesson from your previous offences and stay far away from that dock. But No. As a former graduate of the criminal justice system, you are well versed with these type of proceedings including the mitigating factors the court takes into account. You are not remorseful at all. Your apology is not genuine either and I place no weight on it. The only mitigating factor I accept is your guilty plea.
21. Catherine, you should by now accept that you are the author of your own peril and must therefore answer the consequences of your conduct. Only you hold the key to turning your life around. I would urge you to use this time in prison to have a closer relationship with the Lord and read the Bible. Pray the serenity prayer and ask the Lord to grant you the strength to change the things you can and courage to know the difference so you may live a fulfilling life according to His image.

Penalty

22. The offence of obtaining by deception you appear for sentence on, attracts a penalty of a maximum imprisonment term of 7 years.
23. I take two (2) years as a starting time. This is uplifted to 1 year for the aggravating factors including your previous conviction; so three (3) years in total. The only mitigating factor is your early guilty plea and I deduct 8 months for this.
24. You are convicted and sentenced to two (2) years and four (4) months imprisonment. During your incarceration, you are to attend appropriate rehabilitation programmes as directed by Corrections Management including the Salvation Army drugs and alcohol programme.
25. Your photo should be published online on Police website and elsewhere to forewarn the public of your activities and as a form of deterrence.

JUDGE A R VIANE PAPALII

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^[1] The name of the Resort is suppressed for the protection of its reputation as it had nothing to do with the offence
^[2] R v Filo [2007] NZCA 20
^[3] P v Fereti [2017] WSDC 19.
^[4] R v Rautahi CA 78/2011 [2011] NZCA 351.