Police v Milo [2007] WSSC 45 (8 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LETUMAU KERETA MILO
TUMAU KERETA MILO
female of Vaitele-fou and Vavau.
Defendant

Counsels: P Chang & M Longey for prosecution
RV Papalii for defendant

Sentence: 8 June 2007

SENTENCING REMARKS OF NELSON J.

Defendant appears for sentence on six chargers, two of theft as a servant, two counts of forgery and two counts of using false documents. These relate to monies found to be misappropriated by the defendant while she worked for her employer, Samoa Sportslotto Association. After a defended hearing the defendant was found guilty of all charges and the reasons for the courts decision are contained in its written judgment dated 27 April 2007. It is today a question of what sentence to impose following that judgment.

The maximum penalties for these charges range from 5 years for forgery, 5 years for using a false document and 7 years for theft as a servant. As indicated to counsel the sentencing policy of the Samoan Courts in relation to offences of this nature is to invariably impose terms of imprisonment. As was said by this court in Police v Toomalatai [1999] WSSC 23: "a deterrent custodial penalty is called for here. You and others in positions of trust must understand that breaches of trust like this will not be tolerated" by the law. Defendant in that case received a term of 18 months imprisonment. A similar term was imposed in Police v Ah Sue [2001] WSSC 15 and many subsequent cases of theft as a servant involving amounts in the $8,000-$15,000 range have received penalties of around 18 months imprisonment.

The aggravating factors of this case are well summarized in the submissions by counsel for the prosecution namely the trust imposed on the defendant, a trust which she took advantage of to steal $7,200 from her employer, the fact that the defendant did this not only once but on two separate occasions, the fact that the evidence showed her use of the money was to support an extravagant life-style spending $30-$50 per day playing the Strike-3 lotto game, renting vehicles and buying a $2,000 computer, the fact that the amount stolen is substantial $7,200, the fact that some planning was required for the defendants offending so there is an element of pre-meditation and the prevalence of this kind of offence in our community and the need to deter with imprisonment sentences employees who may be thinking of stealing like this from their employers. These factors led the prosecution to submit that a two-year imprisonment term is appropriate for the defendant in this case. I have considered that submission however I see no reason why the court should not follow the previous decisions on this sort of offence, decisions which generally put the sentencing range around 18 months rather than 2 years.

In mitigation in the defendants favour, there are also factors that operate. The defendant is a first offender, this is her first appearance before any court on any matter. Had she owned up to her crimes in the beginning and pleaded guilty to what was overwhelming evidence against her she would have received a substantial discount from the court but she did not and it is clear from the probation office report she still denies liability for this wrongdoing. The court therefore cannot give her credit for a guilty plea neither can it give her credit for being remorseful for her actions because clearly she is not sorry or remorseful for what she did. The only factors I am left with in her favour is the fact that she is a first offender and her personal circumstances. By her personal circumstances her counsel and the probation office report refers to her ailing mother but as the court has already observed on that issue in her bail application, it does not accept the defendant, who was working at the time of these offences and who told the court that not one sene of the stolen monies was given to her parents or use for her mother, it is difficult for the court to accept she played a considerable or indeed any role in caring for her mother. I do accept that imprisoning the defendant will cause suffering to the family and bring shame to the family but this family like many other families whose members become involved in criminal offending have become the innocent debris of criminal offending. I am sorry for the defendants family but the courts duty is clear and must be carried out.

I have been advised this afternoon by counsel for the defendant and this has been confirmed by counsel for the prosecution of one other matter that is important and has a bearing on the defendants sentencing. And that is that the money in question has been repaid in full to the defendants former employer, Samoa Sportslotto. The policy of the court is clear from previous cases like this, the fact of repayment per se is never enough to save a defendant from an imprisonment term. However in my view repayment or restitution and full restitution as has been done in this case is a most relevant factor as it represents that proper amends have been made in relation to the victims financial loss. Such actions are to be encouraged by the law and effecting of restitution is a proper basis for discounting a defendants penalty.

In this case your family has made full restitution of the money that you have stolen, I will therefore not impose the 18 months imprisonment term that the court would have imposed if restitution had not been made. Your penalty is discounted by a period of 6 months so that you will be convicted on each of these charges and sentenced to 12 months imprisonment. I note that you did spend two weeks in custody, I reduce that period then to 11½ months for each charge but all terms are to be served concurrently, so you will only serve a total of 11½ months imprisonment.

JUSTICE NELSON