Police v Faiga [2007] WSSC 43 (24 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

POUIVA TAITI FAIGA
male of Vaitele-uta, Satapuala and Saipipi, Savaii.
Accused

Counsel: L M Sua for prosecution
Accused in person

Sentence: 24 May 2007

Sapolu, CJ

SENTENCE

The charges

The accused is appearing for sentence on 17 charges of theft as a servant each of which carries a maximum penalty of 7 years imprisonment. To the charges he has pleaded guilty.

The offending

The accused is 24 years old. At the time he committed the offences for which he is now appearing for sentence, he was employed by the Westpac Bank as a general ledger officer. His duties included reconciling the accounts of the Bank which involved the posting of transactions with vouchers by using passwords. The accused used his own password to access about ten different cheque accounts and dishonestly transferred funds from eight of those accounts to eight other different accounts in the Bank. He then withdrew the moneys from those other accounts for his own use.

As it appears from the summary of facts confirmed by the accused, the accused committed 17 different dishonest transfers of money over a period of about 3½ months from 9 November 2006 to 12 February 2007. The amounts involved ranged from $1,900 to $35,000. The total amount stolen by the accused was $106,900.

Part of the money taken by the accused was used to buy two vehicles, a TV set, a computer set and a number of furnitures. The total amount used on buying those items of property was about $63,000. According to the sentencing memorandum by the prosecution, those items of property purchased by the accused with part of the money that he took had been returned to the Bank.

The accused

As it appears from the pre-sentence report, the accused has had a good academic record having graduated with a Bachelor of Commerce degree from the National University of Samoa. He comes from a stable and well-disciplined family. He is also a first offender and was a person of good character prior to the commission of these offences as the testimonials from the pastor and pulenu’u of the accused’s village show.

The decision

In assessing the gravity of the accused’s offending, I refer to the text Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner where it is said at p.343:

"In assessing the severity of the conduct, the amount of money or value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued and the amount of restitution are important considerations. The degree of trust given to the defendant is a particularly important factor so that cases of employment in a position of financial trust are more seriously regarded than cases of employees who are not so employed but steal in the course of their employment. In cases of abuse of a position of trust, good character and an absence of prior convictions are typical and have little weight because of the expressed need for a general deterrent sentence. Nor do an immediate intention to repay, financial loss to the offender and personal humiliation have significant weight for they are all factors commonly encountered in cases of theft from an employer involving deception over a period of time."

In this case, it is clear that the accused engaged in a deliberate and systematic form of misconduct to defraud his employer. The amount of money which he took, the number of occasions in which he took those moneys, and the short period during which he took those moneys are a clear indication of the uncontrolled greed on the part of the accused. The items of property which were purchased with part of the money show that the accused wanted to live a high style of living which he could not afford with his own money.

The accused was also employed in a position of financial trust. He had abused the trust of his employer in a serious way. The total amount of $106,900 which the accused took from his employer is quite a large amount by Samoan standards.

The accused is a first offender and a person of previous good character. However, those matters carry little weight because of the need for deterrence in this type of case which involves serious breach of trust by an employee in a position of financial trust.

In mitigation I will take into account the accused’s plea of guilty and the fact that he has made partial restitution to his former employer the items of property he had purchased with part of the money that he took. The total value of those items of property is about $63,000.

Finally, it must be elementary now to say that sentencing is not a mathematical exercise which requires mathematical precision. Sentencing is a matter of judgement which requires a careful weighing and balancing of all the relevant circumstances of a case. In weighing all the relevant circumstances of this case, taking into account the aggravating and mitigating circumstances as well as the need for deterrence for this type of offending, the accused is convicted and sentenced to 4 years imprisonment on each of the charges where the amount involved is $10,000 or more and 2 years imprisonment on each of the charges where the amount involved is less than $10,000. All sentences are to be concurrent so that effectively the accused will serve a sentence of 4 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution