Police v Ta'ala [2005] WSSC 28 (25 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SATELE ASOVALE TA’ALA
of Sogi and Sapo’e Falealili.
Accused

Counsel: P Chang for prosecution
Accused in person

Sentence: 25 November 2005

SENTENCE

The charges

The accused appears for sentence on nineteen charges of theft as a servant for stealing from his employer on nineteen different occasions from 16 December 2003 to 20 June 2005 various sums of money ranging in amounts from $10,657 to $12,825.98. The total amount involved in these charges is $237,081.45. To these charges the accused has pleaded guilty. Theft as a servant carries a maximum penalty of seven years imprisonment.

The offending

The accused was at all material times employed by the Congregational Christian Church in Samoa (the Church) as assistant manager for its six storey Ioane Viliamu Building at Tamaligi, Apia. He commenced employment with the Church in that position from 1996 until 2005 when he was terminated because of these offences. As assistant manager for the Church’s Ioane Viliamu Building, the accused was responsible for receiving rents from tenants using the building. One of these tenants is the Electric Power Corporation (EPC).

In carrying out the fraudulent activities for which he is now appearing for sentence, the accused opened an account called “CCCS Staff Fund” with the Samoa Commercial Bank. The two signatories who could withdraw funds from that account were the accused and his wife. From December 2003 to June 2005, the cheques received by the accused from the EPC for its monthly rents were lodged by the accused into the CCCS Staff Fund account he had opened instead of the account of the Church at the Samoa Commercial Bank. The accused would then withdraw monies from the CCCS Staff Fund account for what he wanted to do with it. The total amount of the sums of money that he obtained in this way was $237,081.45.

From the pre-sentence report prepared by the Probation Service, the accused told the Probation Service that most of the money that he took was used to finance the construction of the new school building of his village of Sapo’e, Falealili. Part of the money was also used to build his family home at Sapo’e and part was spent on pleasure such as partying with his friends.

The accused

The accused is a 40 year old male from the village of Sapo’e, Falealili but is presently residing at Sogi, Mulinuu, with his family. He is married with six children. From the testimonials presented by the pastor and the secretary of the accused’s church at Mulinuu, it appears that the accused had been a person of good character prior to the commission of the offences for which he is now appearing before the Court.

Mitigating circumstances

The accused’s plea of guilty to the charges against him, the fact that he has no previous convictions and that he had been a person of good character prior to the commission of these offences are matters which can be taken into account in mitigation of penalty. The accused has also repaid $9,000 to the Church. He has also apologised to the Church and his apology was accepted.

I would not consider what the accused told the Court that he has made arrangements to repay $1,000 a month as a mitigating factor. This amount of repayment is too small given that the total of the sums of money with which he has been charged is about $237,000 and he has repaid only $9,000. At the rate of $1,000 a month, it will take the accused nineteen years to repay the balance of the total amount of money that he took from the Church. There is also no evidence of how the accused can afford to make such repayments of $1,000 a month. After all he also needs money for himself, his wife and for the maintenance of his six children who range in age from twenty years to one year. Being a matai and a Samoan, the accused also needs money to meet certain family and customary obligations. Being a church member also carries with it financial obligations.

Aggravating circumstances

The accused occupied a fairly senior managerial position with his former employer. He breached the trust of his employer in a fraudulent and substantial way. The total gravity of the offending and the time period over which the accused committed these fraudulent acts must also be taken into account. For every month for a period of nineteen months, the accused took for himself rent monies due to his employer from one of its tenants at the Ioane Viliamu Building. These monthly rents were just over $10,600 for the months of December 2003 and January 2004. For every month thereafter until June 2005, the monthly rent received by the accused from the same tenant and which he took for himself was over $12,000. This is a systematic and sustained fraud committed over a period of nineteen months.

Sentencing guidelines for this type of case

The leading authority which provides guidelines for sentencing in cases where an employee in a position of trust has used his trusted position to defraud his employer is the decision of the English Court of Criminal Appeal in R v Barrick (1985) 81 Cr. App. R. 78. In that case the then Lord Chief Justice of England Lord Lane in delivering the decision of the Court set out certain guidelines for the assistance of the Courts when passing sentence in respect of certain types of fraud including thefts committed by employees in positions of trust. His Lordship said at pp 81-82:

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but are less then £10,000, or thereabouts, terms of imprisonment ranging from the very short up to about eighteen months are appropriate (see for example Weston (1980) 2 Cr. App. R. (S) 391). Cases involving sums of between about £10,000 and £50,000 will merit a term of about two to three years imprisonment. Where greater sums are involved, for example those over £100,000, then a term of three and half years to four and a half years would be justified (see for example the case of Strubell (1982) 4 Cr. App. R. (S) 300)...

The terms suggested are appropriate where the case is contested. In any case where a plea of guilty is entered however the Court should give the appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence. As already indicated, the circumstances of cases will vary almost infinitely.

The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including the rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

Even though Lord Chief Justice Lane has given an extensive list of the matters that the Courts may have regard to in determining the proper level of sentence in a particular case of theft and fraud by a person in a position of trust, it is clear that the list was not intended to be exhaustive.

In this case, the matters that would be relevant and against the accused would be (i), (ii) and (iii) whereas the matters listed in (viii) would be in favour of the accused. Another relevant matter in favour of the accused would be his plea of guilty to the charges.

The sentencing guidelines laid down in Barrick were updated in the recent decision of the English Court of Criminal Appeal in R v Clark (1998) 2 Cr. App. R. (S) 95 in order basically to allow for inflation. Rose L J in delivering the decision of the Court said:

“The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents respectively of £10,000, £50,000 and £100,000, the figures mentioned Barrick... Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 and £100,000, will merit 2 to 3 years; cases involving sums between £100,000 and £250,000 will merit 3 to 4 years... These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for.”

I need to make two comments here. In my respectful opinion, what was said in Barrick that a theft and fraud case involving sums significantly in excess of £100,000 would justify a term of imprisonment of three and a half years to four and a half years would be more appropriate for Samoa than what was said in Clark that cases involving sums between £100,000 and £250,000 will merit three to four years imprisonment. These are of course only guideline decisions by the English Court of Criminal Appeal even though they are authoritative. A sum of $100,000 or more is also a very large sum of money by Samoan standards and there are relatively few theft cases where the total sum stolen is more than $100,000. Secondly, to make the English decisions relevant to Samoa, substitute the pound sterling sign with the Samoan tala sign.

The decision

Given the number of charges in this case and the different dates on which the offences were committed, the Court should look at the totality of the offending in determining what should be the appropriate sentence. The starting point for sentencing in this case should be four and a half years imprisonment and I would allow a discount of about ten per cent for the accused’s plea of guilty. Having regard to those matters together with all the other mitigating and aggravating circumstances, the accused is convicted and sentenced to four years imprisonment on each of the nineteen charges against him. These sentences are to be served concurrently.

CHIEF JUSTICE