Police v Tapuai [2007] WSSC 46 (14 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ESETA TAPUAI
female of Moamoa and Maota Savaii.
Accused

Counsel: L M Sua for prosecution
Accused in person

Sentence: 14 June 2007

Sapolu, CJ

SENTENCE

The charges

The accused is charged with 68 counts of theft as a servant each of which carries a maximum penalty of seven years imprisonment. To those counts she pleaded guilty at the earliest opportunity.

The accused

The accused is a 26 year old female from the village of Maota in Savaii. She is married with three young children who are between the age of 3 years and 6 years.

At the times the accused committed the present offences, she was employed by the Lotto Samoa Games Ltd as supervisor at its branch at Salelologa, Savaii. In that position, the accused’s responsibilities included the checking and banking of her employer’s daily takings from the sale of lotto tickets.

The accused is a first offender. As it appears from the pre-sentence report and the attached testimonials from her family and the pastor of her church, she had been a person of good character prior to the commission of these offences. She also expressed remorse to the Court for what she had done.

The offending

As it appears from the summary of facts admitted by the accused, on 68 separate occasions the accused stole moneys from her employer’s daily bankings which were entrusted to her to deposit in the bank. What happened was that on some occasions the accused took her employer’s full banking and used the money herself. On other occasions, the accused would deposit only part of her employer’s banking with the bank and took part of the money for her own use.

The first time the accused embezzled funds belonging to her employer was about 18 March 2004 when she took $25 from her employer’s banking for that day. After that the accused embezzled various amounts from her employer’s bankings some of which exceeded $1,000 with the highest amount being $6,889. The last occasion on which the accused embezzled moneys from her employer was about 31 December 2005. So these fraudulent activities spread over a period of about 21½ months. The total amount taken by the accused was $70,132.50.

When the accused’s fraud was discovered, she signed a written acknowledgement on 12 January 2006 that she had taken the total sum of $17,364.50 and that she would repay that sum at the rate of $1,000 per month. Subsequently it was discovered that the accused had taken a total sum of $70,132.50. She has repaid only $300.

As it appears from the pre-sentence report, the accused told the probation service that the reason why she took these monies from her employer was due to depression. She said she became depressed when she heard from other people that her husband, who is now working in New Zealand to help pay for their church built in Samoa, was having an affair with another woman. As a result, she took to drinking and the moneys that she took from her employer was spent on drinking with friends and buying new clothes for herself but mostly on drinking. At first, she took only $25 which she spent on drinking. That first unlawful taking led to further unlawful takings from her employer’s bankings until it became a habit for her.

Whilst the first three occasions that the accused took her employer’s money in March 2004 could be explained to have been the result of her depression, I find it difficult to accept that the subsequent occasions in November and December 2004, June, July, August, September, October, November and December 2005 were all due to the accused being depressed and seeking relief in the consumption of alcohol. This is particularly so when on a number of those subsequent occasions she took amounts of more than $1,000, more than $2,000, more than $3,000, more than $4,000, and the one occasion that she took $6,889. To spend $70,132.50 mostly on drinking, even with friends, must have been quite a lot of drinking over a period of 14 months from November 2004 to December 2005. It seems that the accused was just enjoying a good time at the expense of her employer. The accused told the probation service that all the money was spent on her self-satisfaction and none on her family or children.

Aggravating features

There are several aggravating features in this case. The total amount of $70,132.50 taken by the accused is quite substantial. This total amount was also not taken on one but on 68 separate occasions which spread over a period of 21½ months. It shows that the accused embarked on a deliberate and sustained course of conduct to defraud her employer. The accused was also occupying a senior position of trust being the supervisor of her employer’s branch at Salelologa. Her responsibility of checking and banking the daily takings from her employer’s sale of lotto tickets also involved financial trust. However, the accused had seriously abused her employer’s trust. All of the money she took was spent on drinking with friends and buying new clothes but mostly on drinking.

Mitigating features

The accused’s plea of guilty to the charges at the first opportunity is a mitigating feature in her favour. In part it denotes remorsefulness. I would accept the accused’s expression of remorsefulness during her plea in mitigation. I will, however, give limited credit to the fact that the accused is a first offender and to her previous good character because of the general need for deterrence in this type of case.

The decision

The sentence to be passed depends primarily on the circumstances of each case even though the sentences passed in comparable cases provide useful guidance. The normal sentence in this type of case where the total sum stolen is quite substantial has been of a custodial nature. Such a sentence is justified in this case.

Having regard to the aggravating and mitigating circumstances, the need for deterrence in this type of case, and the maximum penalty of 7 years imprisonment provided for theft as a servant, I have decided to impose the following sentences applying the totality principle:

(a) For the charge which involves the sum of $6,889, the accused is sentenced to 3 years imprisonment.

(b) For the charges which involve sums of more than $3,000 but less than $5,000 the accused is sentenced to 2 years imprisonment.

(c) For the charges which involve sums of more than $1,000 but less than $3,000 the accused is sentenced to one year imprisonment.

(d) For the charges which involve sums of more than $500 but less than $1,000 the accused is sentenced to 9 months imprisonment.

(e) For all other charges which involve sums of less than $500 the accused is sentenced to 6 months imprisonment.

All the sentences are to be concurrent so that the accused will effectively serve only 3 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution