Police v Ale - Sentence [2002] WSSC 47 (25 June 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
(Informant)

AND

SULIA FAAMAUSILI ALE
SOLI FAAMAUSILI ALE
LUSIA SANELE ANITELEA
SIFAGA TAGATA
(Defendants)

Hearing: 10.06.2002 – 20.06.20002

Counsel: Mr D. Potoi & Ms S Eteuati for prosecution
Ms S. Hazelman for Sulia Faamausili Ale
Ms S. Hazelman for Soli Faamausili Ale
Ms M. Tuatagaloa for Lusia Sanele Anitelea
Mr M. Leung Wai for Sifaga Tagata

Sentence: 25 June 2002

SENTENCING REMARKS OF LANCE J.

My sentencing remarks will require to be translated, which will delay the process, but I believe they should be not only for the benefit of the defendants but also for the benefit of the public who are no doubt here in various capacities with a legitimate interest. The court has a duty to ensure the public is fully informed of what is said. I would like to take ten minutes to consider the submissions I have just heard from defence counsel. They raised matters which I need to reflect upon. I will take an adjournment. I will resume at 3.20pm.

Sulia, Soli, Lusia and Sifaga, you have all been found guilty of 8 counts of theft as a servant. Under the Crimes Ordinance the maximum sentence for each of those counts is seven (7) years imprisonment.

Each charge was framed on a monthly basis for a period of eight (8) months between June 2000 and March 2001. All counsel agreed that the total amount missing over the relevant period was $366,397.50.

The circumstances of your collective offending were these:-

You were all employees of Telecom Samoa Cellular in various capacities with different job descriptions. Monies paid to the company for services it had provided was made by cheque or cash and when received at the front desk were put into a receptacle called “the black tin”. It is quite clear to me from listening to the evidence that this tin became your unofficial bank. You all targeted at it with what you euphemistically called “borrowings”. Sometimes these were recorded on pieces of paper. At other times not. It seems to me you just took money when either the need or the desire arose and the funds permitted. In addition large sums of cash which had been placed, sometimes in the security safe, or elsewhere went missing. Obviously there were short falls in the banking. These were adjusted in various ways. Sometimes by using the bankings taken from the previous day or, at least in one instance, the banking record falsified. There were other instances of money going missing from the tin, for example over lunch time, where no corresponding note was put in the tin to record the taking. None of you have owned up to the amounts you believe you owe in any responsible way. Some of you have estimated your respective debts I suspect they are conservative. I also have the evidence of Marie Westerlund, who kept some records, but she conceded the amounts were very much estimates only.

During the trial I asked counsel who other than you four, and Ms Westerlund, could have taken the money. It was suggested there were other people : they were Mr Connor and Alofa and some girl who worked for a very short time part time. Having at least heard from Mr Connor and Alofa, I’m quite satisfied they were not responsible.

Ms Westerlund impressed me as a credible witness but even she left room for an inference she may have taken more than her estimate. There was no suggesting an “outsider”, that is a person other than an employee of the company, could have taken the money. The difficulty about the estimates of the amounts owing when taken together with your admissions is that there is no solid evidence of how much each of you took, what you repaid and thus the net deficit. Any conclusions I draw must be qualified by those facts.

The general thrust of all your defences was that you “borrowed” with an intention to repay. Well, none of you gave evidence about that. None of you told me what you thought at the time you “borrowed” and when you thought you might be able to repay. And none of you told me what, if any, assets you had to back up your intentions to repay. Furthermore I can draw a strong inference that you did not have any assets to pay these monies back because none of you, apart from Soli, have made any repayments of significance. None of you have made any proposal today to make any payment by way of reparation. Lusia’s counsel’s submission says you are not able to pay any money “today”. You all should have known, as I signalled it clearly on the 10^th of June, or thereabouts, the day I sentenced Marie Westerlund and that if you were found guilty a strong mitigating factor would be any reparations made. You have all been on bail. You have had time to make arrangements. None of you have.

During the trial it was suggested that management had also borrowed from the till. That was a pathetic effort to try and justify your wholesale taking of money. When put to Mr Connor he acknowledged he once took $20 from petty cash and paid it back almost straight away. There is no one who has worked in an office that has not been short of a small amount of cash occasionally and taken it from petty cash. It’s usually repaid promptly and the amount very small. If that was all any of you had done you would not be here today.

Your taking off money was on a grand scale, repetitive and you assisted each other in covering it up. Some suspicion must fall on those who knew the combination of the office safe for the money that went missing from there. It begs the question of who else could it possibly be? But I emphasise it is a suspicion only. As far as you all are concerned I find the aggravating features are: a gross breach of trust, large amounts, a lengthy period of time, permitting others to do it, and failure to inform Mr Connor. In mitigation all I can find is that you are all first offenders. And as I found with Marie Westerlund I accept in the Samoan culture the stigma of your actions reflect not only on you and your immediate family but your whanau which is the larger family.

I turn to consider the case in so far as each of you is concerned. I regard you Lusia as by far the most culpable for the following reasons:-

You had overall supervision and responsibility as the oldest, most experienced and the senior person on the staff. Not only did you permit the borrowing by others but you instructed Marie to record it thus giving your seal of approval. You were a regular and substantial borrower yourself. You were aware of the banking discrepancies and in my view delayed and probably manipulated the monthly reconciliations to cover it. You were one of the few who knew the safe combination thus you had access to the tin and the safe. Your counsel acknowledged today that you accepted responsibility for allowing the borrowings by others. You instructed your counsel that you permitted that “so long as the monies were paid back.” What a nonsense. You did nothing to enforce the repayment of the monies but rather permitted further borrowings by those who had not paid back and when it got out off hand you did not inform Mr Connor as you should have. You tried to cover up. Furthermore you are the oldest by far and should have known better particularly given your previous work experience as disclosed in the statements handed up today by your counsel.

Sulia: it is submitted by the prosecution that you are, after Lusia, the second in terms of culpability. Marie Westerlund said you were a monthly “borrower”. You made some repayments. There’s a suggestion your deficit may be $5,000. Your counsel submitted you are well educated and thus have an advantaged background. I accept that but it works both ways. It means you should have known better. Your counsel submitted you made a “fatal mistake”. You should have acknowledged that before the trial started with your plea. I take into account you’re only 20 years of age.

You Soli are 27 and again well educated. The prosecution submit you are the least culpable but the clear evidence is you borrowed at least $2,000. You repaid that but after the proceedings had commenced. Your counsel submitted the delay was occasioned because you were getting the money together. I can understand that but you should have told Telecom you were doing just that. Your counsel submitted she believed you had. It was important. I gave you the opportunity of giving evidence about that today subject to the prosecution being able to call evidence to rebut. You elected not to give evidence. I can only infer that your counsel misunderstood your instructions and you did not tell management you were getting the money together for repayment. There is evidence there may be at least another $1,000 outstanding.

You Sifaga are 31 years old. In terms of culpability the prosecution submit you are behind Sulia but ahead of Soli. You started work as a tea lady but were later given more responsibilities. You were a regular borrower. The estimate is you owed upwards to $3,000. I take into account you have come from a broken family with little, I suspect, education. You lost your parents early in life. You have 5 children, 3 of whom you are still caring for. Although 31 – without an education and with the family responsibilities you have had and the set backs in life, I am prepared to take those factors into account.

I have to bear in mind the parity principle in sentencing. I sentenced Westerlund to 9 months prison. The prosecution placed her culpability between Lusia and Sulia. I agree. In sentencing her to 9 months imprisonment I took a starting point of 15 months after allowing for the fact she paid back the full of the amount she acknowledged owing of over $11,000. I fixed her sentence somewhere between 2 and 3 years before reparation.

You were all given the opportunity, having heard Westerlund plead guilty, to reconsider your positions. And you all have the opportunity of reading her statement and brief of proposed evidence. I told you pleas of guilty would result in a substantial discount on an otherwise appropriate sentence. You were entitled to put the prosecution to proof. You did. The prosecution evidence was overwhelming. As defendants you did not have to give evidence but you could have. None of you did.

In deciding on the appropriate sentences I have taken into account the tariffs in similar cases in the Supreme Court of Samoa.

Lusia you’re sentenced to three and a half (3½) years imprisonment. Sulia you’re sentenced to two (2) years imprisonment. Sifaga – in my view the appropriate sentence was one between eighteen (18) months and two (2) years imprisonment, but I sentence you to fifteen (15) months imprisonment after taking into account the particular factors I have mentioned. Soli – your counsel’s plea was that I consider a suspended sentence. Given your absence from the office on a number of occasions and, in my view, the relatively limited amount of “borrowing”: the fact you did repay a substantial amount that would have been a powerful plea for a suspended sentence if you had pleaded guilty and acknowledged your responsibility. You did not. You took the risk. You’re sentenced to twelve (12) months imprisonment.

I have applied the totality principle in fixing the appropriate sentences all of which are concurrent for each of the 8 charges.

LANCE J.