Police v Olo [1999] WSSC 22 (27 October 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SEUSEU OLO
of Vaitele-uta and Fagamalo, Savaii.
Defendant

Counsel: Mr R. Schuster for the Prosecution
Mr R.S. Toailoa

Sentencing Date: 27 October 1999

SENTENCING REMARKS OF WILSON J.

Seuseu Olo of Vaitele-uta and Fagamalo, Savaii. You are a 30 year old single woman who is in a defacto relationship. You are a former bank employee who has been convicted, following the entry of pleas of guilty, of 7 counts of theft as a servant.

Between 28 April 1999 and 19 July 1999, you stole from the bank which had employed you for 10 years. There were a large number of offences and the sums stolen ranged from $4,000.00 to $24,258.20.

The total amount stolen was $59,258.00.

Aggravating circumstances of your crime are as follows:-

1. You were in breach of your position of trust.
2. The offending extended over a period of 3 months.
3. The total sum stolen was very large.
   

I accept that there is no evidence suggesting that you used the money you stole upon high living or extravagant spending upon yourself. The motivation would appear to have originated out of a concern to meet family obligations and financial commitments.

Whilst you counsel referred to the alleged participation in your offending by another bank employee and to the allegation that you were “pushed” into committing these crimes, there is insufficient before me to lead to the conclusion that your culpability or blameworthiness was in some way diminished or that a truly mitigating circumstance exists. Duress is, of course, a defence to the charge is here, but neither that defence nor any other defence was raised. As I stated earlier, you pleaded guilty, and, as I have just stated, the plea of having been “pushed” into it does not, in the absence of some evidence to support it, constitute a mitigating circumstance.

Although there is some prospect of about half of the moneys owing to the bank being recovered, no restitution has been paid. I note in your favour that the ¼ acre of land at Moamoa that you had purchased, albeit with the bank’s financial assistance, will be lost to you and go in reimbursement of the losses caused by your offending.

I give you credit for your pleas of guilty at an early stage, and I give you credit for the degree of co-operation you have shown with the authorities. And I give you credit for the remorse you have shown, and I give you credit for the saving of costs associated with a lengthy trial.

I give you a discount, so to speak, of 1/3^rd off your overall sentence on account of those matters.

I have read the pre-sentence report prepared by the Probation Service. I have noted carefully the submissions of your counsel, Mr Toailoa. I have read the references, including one from Reverend Fomai Lafaialii and one from your new employer, Mrs Mau Mu’a, the Managing Director of Benjamin Moore Colour Works Samoa. I note that, but for this serious offending behaviour, you seem to have been a woman of good character. I have had interpreted (translated) to me a letter dated 14 September 1999 from the Bank.

I give you credit for the fact that you have recently been able to secure and hold down a new job. One can only hope that, for your sake, you can regain that or similar employment when you are free to live and work in the free community again. You have obvious ability as an employee.

There are some cases of multiple-offending (and breaches of trust) when, even for a first offender and even when some recovery of losses incurred is likely to take place and even when genuine remorse has been shown, imprisonment must be ordered. This is such a case.

This case undoubtedly calls for a deterrent custodial penalty.

You and other members of the country who are given the opportunity to work in positions of trust must understand that breaches of trust will not be tolerated, and that large - scale mis-appropriation of an employer’s funds cannot (and will not) be tolerated and, almost inevitably, will result in stern punishment.

The sentence of the court is that you be imprisonment as follows:-

On count one (relating to $24,258.20) - 1 year imprisonment

On count 2 (relating to $10,000.00) - 2 years imprisonment

On count 3 (relating to $5,000.00) - 6 months imprisonment

On count 4 (relating to $6,000.00) - 7 months imprisonment

On count 5 (relating to $4,000.00) - 8 months imprisonment

On count 6 (relating to $5,000.00) - 9 months imprisonment

On count 7 (relating to $5,000.00) - 1 year imprisonment

Each of those sentences will be concurrent. In the exercise of my discretion I decline to order (pursuant to s.114 of the Criminal Procedure Act) that they be cumulative, because this was one course of dishonest conduct. There will therefore be one effective total head sentence of 2 years’ imprisonment.

[Each of the sentences announced by me will, pursuant to s.114(3) of the Criminal Procedure Act, take effect on this day, the day upon which each sentence is pronounced].

JUSTICE WILSON