Police v Auina [2006] WSSC 49 (7 September 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MAMELE AUINA
female of Saoluafata.
Accused

Counsel: A Lesā for prosecution
R T Faaiuaso for accused

Sentence: 07 September 2006

SENTENCE

The charge

The accused is charged under ss.85 and 86(1)(g) of the Crimes Ordinance 1961 with one count of theft as a servant which carries a maximum penalty of seven years imprisonment. The accused initially pleaded not guilty to the charge but after she engaged counsel she changed her plea to one of guilty on advice by counsel.

The offending

The accused commenced employment with the Samoa Commercial Bank on 13 June 2005 as a teller trainee until she was sufficiently experienced to become a teller.

According to the summary of facts prepared by the prosecution, on 6 October 2005 the accused attended the verification of her teller’s cash by a senior officer of the bank. This process of verification involved a senior officer of the bank counting the cash from the accused as bank teller, bundling of the cash, and handing the bundled cash to the accused to place in a bank bag. After the senior officer had counted and bundled $50 notes amounting to $5,000, the bundle was given to the accused to place in a bank bag. Instead of placing the bundle in a bank bag, the accused put it in her pocket. When the senior officer later realised that $5,000 was missing from the bank bag, she approached the accused and questioned her about the missing $5,000. The accused admitted to pocketing the money and that she had spent the full amount. When arrested by the police, the accused again admitted under caution to stealing the $5,000. The accused did not challenge these parts of the summary of facts. It is also not clear why the accused initially pleaded not guilty to the charge before she engaged counsel, when she had previously admitted to a senior bank officer and then to the police that she had taken the money.

From the pre-sentence report prepared by the probation service, the accused gave to the probation service a slightly different account of what happened. She said that on Friday morning, 6 October 2005 when she was counting her teller’s cash, she removed $5,000 and placed it in her handbag, which she then placed on top of a filing cabinet in her room. When she finished work she went to catch a bus to go home. While she was waiting for a bus, she reached into her handbag for money for her fare and she discovered that the $5,000 was not there.

Counsel for the accused, undoubtedly on instructions from the accused, told the Court that the accused had been under suspicion by her employer for a shortage of $150 for which she was not responsible. The accused’s employment was then terminated without she being given the opportunity to repay the money she did not take. The accused, however, continued to complete her work that day. It was during that time that she stupidly took the $5,000 and placed it in her handbag.

In view of these somewhat different accounts, I have decided to prefer the unchallenged account of the facts presented in the prosecution’s summary of facts. Even if it is true that the accused later discovered that the money she had placed in her handbag was not there, the offence was complete at the time she took the money. Whether she did benefit from the money or not would be immaterial. In any event, the prosecution’s summary of facts states that the accused admitted to a senior bank officer that she took the money and spent it.

The accused

The accused is a 19 year old female from the village of Saoluafata. She is a first offender. She seems to have had a good academic background having reached the University Preparatory Year. She has a husband and a one year old child.

When this matter was investigated by the police, the accused’s family made full reparation of the amount that was taken by the accused. In consequence, the bank which is the former employer of the accused has written to the Court about its wish to discontinue proceedings against the accused.

Testimonials from a paramount title holder of the accused’s village, the pulenu’u of the accused’s village, the parents of the accused, and the pastor of the village of Solosolo which the accused often visits to see and care for her blind grandmother, show that the accused was a person of good character prior to the commission of this offence.

Aggravating circumstances

The accused started work with her former employer on 13 June 2005 as a teller trainee until she was qualified to be a teller. It is not clear when that happened. On 6 October 2005, when the accused had become a teller, she took $5,000, the property of her employer. Thus after four months working for her former employer, the accused committed this offence. The sum of $5,000 is not a small amount by Samoan standards. The accused was also occupying a position of financial trust.

Mitigating circumstances

The young age of the accused and the fact that she is a first offender are mitigating circumstances. So is the ready co-operation of the accused with her employer and the police by admitting that she took the money with which she is now being charged. In view of the admissions the accused made to her employer and the police, it is somewhat difficult to understand why she initially pleaded not guilty to the charge until she engaged counsel which appears to have been much later in time. While I will give credit to the accused for her ready co-operation with her former employer and the police, I will not give her the same discount for her change of plea from not guilty to guilty as I would give to a guilty plea entered at the first available opportunity. Full reparation of the amount taken by the accused has been made, and that is also mitigating circumstance.

Counsel for the accused submitted that the wish of the acucsed’s former employer to discontinue the present proceedings because the accused’s family has made full reparation of the money taken by the accused is another mitigating circumstance. Whilst the making of full reparation is a mitigating circumstance, I do not accept that the wish of the accused’s former employer is such a circumstance. There may be cases where the wish of a victim of a crime to forgive an accused may be given limited weight. But that would be the type of case where the sentence the Court has in mind would only cause further distress to the victim. This is not such a case.

The decision

Counsel for the accused submitted that the accused should be discharged without conviction or alternatively, a non-custodial sentence should be imposed. Under s.104 of the Criminal Procedure Act 1972, an offender may, in the exercise of the Court’s discretion, be discharged without conviction where (a) the offence is of so trifling a nature that it would be inexpedient to inflict any punishment, or (b) having regard to the age or some other special circumstance of the offender, the entering of a conviction would be a hardship out of proportion to the particular circumstances of the offence committed.

In the particular circumstances of this case, it cannot be said that the stealing of $5,000 by the accused while she was employed as a bank teller was an offence of a trifling nature. What was involved was a fraudulent breach of trust by an employee in a financial position. The amount of money involved was also not insignificant. Secondly, it cannot be said, on the basis of the information before the Court, that having regard to the age or some other personal circumstance of the accused, the entering of a conviction for theft as a servant will have consequences on her which are out of proportion to the gravity of the offence. A discharge without conviction will therefore not be appropriate.

Apart from the aggravating and mitigating circumstances already referred to, there are four other matters which I have taken into consideration in determining the level of sentence for this case. The first is the sentencing levels of this type of offending in the recent past starting from 1999. Secondly, this is not a case of a systematic series of fraudulent activities committed over a period of time but a case of a single act of dishonesty. Thirdly, the accused was clearly quite junior in rank in her employment. And fourthly, is the need for deterrence for this type of offending.

Having regard to all the circumstances, the accused is convicted and sentenced to ten months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for the prosecution
R T F Law Firm