Police v Filipo [2007] WSSC 18 (14 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

IAFETA FILIPO
male of Vaoala
Accused

Counsel: L M Sua for prosecution
J Ponifasio for accused

Sentence: 14 March 2007

SENTENCE

The charges

The accused appears for sentence on two counts of theft as a servant each of which carries a maximum penalty of seven years imprisonment, one count of forgery which carries a maximum penalty of five years imprisonment, and one count of false pretence which carries a maximum penalty of three years imprisonment. To all counts the accused pleaded guilty at the earliest opportunity.

The offending

As it appears from the summary of facts which was admitted by the accused, he was employed by Pala Lima, Public Accountant, as a reconciliation officer. In that position, it was his responsibility to reconcile the internal accounts of his employer with monthly bank statements. On 4 October 2006, the accused forged the signature of his employer on a Westpac Bank cheque of his employer and wrote out $800 on it in words and figures. He then cashed the cheque with the Westpac Bank the following day, 5 October 2006. When the accused’s employer discovered the forgery, he questioned the accused about it on 11 October. The accused admitted to the forgery saying that he had used the money for his own purposes. The accused’s employment was terminated by his employer the same day. As it appears from the pre-sentence report, the accused told the probation service that he apologised to his employer but his apology was not accepted and his employment was terminated. However, it also appears from the pre-sentence report that when the probation service interviewed the accused’s employer, the accused’s employer denied that the accused apologised to him.

After the termination of his employment on 11 October, the accused on 12 October approached the Money Exchange Ltd, a client of his employer, and falsely told that company that he had been sent by his employer to obtain $807.10, but the money will be paid back with the equivalent of US$300. The Money Exchange Ltd gave $807.10 to the accused which he used for himself.

In total, the accused dishonestly took $1,607.10. None of that money has been repaid. When the accused was interviewed by the police on 16 October 2006, he admitted to all the charges against him.

The accused

The accused is a 22 year old single male from Vaoala. He is a first offender. It appears from the pre-sentence report that he is a young man with good potential. He had attended the National University of Samoa. The pastor of his church also says that the accused is a co-operative and hardworking member of their Youth Fellowship.

Plea in mitigation by counsel for the accused

In mitigation of penalty, counsel for the accused referred to the accused’s plea of guilty at the earliest opportunity and the fact that the accused is a first offender. Counsel also referred to the apology made by the accused to his employer as mentioned in the pre-sentence report. As already mentioned, the pre-sentence report also shows that the accused’s employer denied to the probation service that the accused had apologised to him. Counsel also submitted that the accused has suffered stigma and has also suffered punishment for his offence when he was beaten up by members of his family for committing this offence. In my view, these last two matters were brought by the accused upon himself by committing the offences with which he has been charged. I give him no credit for it.

Submissions by counsel for the prosecution

Counsel for the prosecution in her sentencing memorandum submits that the accused’s conduct involved a breach of his employer’s trust. She also points out that following the accused’s termination when his apology was not accepted by his employer, the accused went and withdrew his employer’s money. This must be the sum of $807.10 which was obtained by the accused by false pretence from the Money Exchange Ltd. This part of the sentencing memorandum seems to proceed on the basis that the accused did apologise to his employer. Counsel for the prosecution also submits that for the accused to be able to forge his employer’s signature and misled the Westpac Bank to cash the forged cheque, he must have practised his employer’s signature which shows that the actions by the accused were deliberate and pre-meditated.

The pre-sentence report

I wish to note here that from the interview of the accused by the probation service which is related in the pre-sentence report, the accused does not appear to be a person who is truly remorseful. For instance, the pre-sentence report says that the accused told the probation service that the reason for him obtaining the money from the Money Exchange Ltd using the name of his employer was because he was not happy with the termination of his employment and the rejection of his apology by his employer. The money was used by the accused to buy clothes and beers to drink.

Aggravating features

Even though the total amount of money which is involved is $1607.10, the level of criminality involved in this case is high. There was theft, forgery and false pretence all happening together. This offending also involved a breach by the accused of his employer’s trust. I also have serious doubt, given what is stated in the pre-sentence report only one instance of which has been mentioned, that the accused is truly remorseful.

Mitigating features

The mitigating features in this case, as referred to by counsel for the accused in his plea in mitigation, are the accused’s plea of guilty at the earliest opportunity and the fact that he is a first offender.

Decision

After weighing all the circumstances, including the aggravating and mitigating features, I have come to the conclusion that a custodial sentence should be imposed. In so concluding, I look at the total culpability of the accused. The accused is convicted and sentenced to 7 months imprisonment on each of the charges. All sentences are to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Law Centre, Lelata Apia for accused