Police v Stowers [2007] WSSC 79 (9 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ELLIE CLARA PATOLO STOWERS
female of Moamoa and Toomatagi.
Accused

Counsel: L M Su’a for prosecution
G Stowers for accused

Sentence: 09 October 2007

SENTENCE

The charges

The accused appears for sentence on three counts of theft as a servant laid under ss.85 and 86(g) of the Crimes Ordinance 1961, each of which carries a maximum penalty of seven years imprisonment. The accused had pleaded not guilty to all counts but changed her plea to one of guilty on the date of hearing.

The offending

The accused is a 38 year old female of Moamoa and Toomatagi. At the times the accused committed the offences for which she is now appearing for sentence, she was employed by Discovery Rentals, a company with a rental car business.

According to the amended summary of facts which was admitted by the accused, she started employment with the said company on 5 June 2006 as a sales and reservations consultant. Four months later on 6 October 2006, she was promoted to the managerial position in sales and marketing. In this position the accused was responsible for making reservations and receipting payments for the hireage of cars. Unfortunately, her employment was terminated on 2 November 2006 because of the present offences.

In relation to the first offence, it would appear that an overseas client who visited Samoa rented a car from the accused’s employer on 27 September 2006. He tried to pay for the hireage by credit card but the transaction was declined by the credit card machine. He then paid the hireage of $750 by cash. The accused, who must have kept the customer’s credit card number, then re-processed the credit card transaction to pay for the hireage and kept the $750 cash payment for herself. Subsequently, the client called the accused’s employer and enquired as to why he had been charged through his credit card for the hireage when he had already paid by cash. That was when it was discovered that the cash payment had been taken by the accused for herself.

In relation to the second offence, a couple rented a car from the accused’s employer on 06 October 2006 and paid a bond fee of $300 to the accused. She did not receipt that payment but kept it for herself. When these clients account went into arrears, the accused contacted them to follow up their payments and suggested to them to meet her at one of the shops in Apia where they could make their payment. The clients met with the accused on 26 October and paid to her a total sum of $1,225 in cash which included an unauthorised service fee of $30. The accused then receipted $525 but kept $700 for herself.

In relation to the third offence, a client rented a car from the accused’s employer on 27 October 2006 and paid a bond fee of $500 to the accused. She did not receipt that payment but kept it for herself. When that client’s account went into arrears, the accused contacted her to follow up her payments. She suggested to the client to meet her at one of the hotels in Apia where she could make her payment. On 31 October when the client met with the accused, she paid a total sum of $1,250 in cash which included an unauthorised service fee of $30. The accused did not receipt that payment but kept it for herself.

The total sum stolen by the accused was $3,500. She has repaid $3,400 to her employer. According to the sentencing memorandum by the prosecution, the repayment was made shortly before the date of trial.

The accused

The accused, as earlier mentioned, is a 38 year old female. She is married. She has six children, four from a previous marriage and two from her present husband. Her children from her present husband are aged 18 months and 4 months.

As the pre-sentence report shows, the accused has had a high level of education having attended secondary school and university in New Zealand. She has a diploma in Travel Studies.

The accused is also a first offender. As it appears from the testimonials from the accused’s previous employers, her present husband and former husband, her mother and others, the accused has been a person of good character prior to the commission of these offences. In other words these offences are out of character.

As for the reasons for committing these offences, the accused, as it appears from the pre-sentence report, told the probation service that she was under financial pressure. So she took the monies with which she has been charged and spent it on her family to buy food, pay for her children’s school fees and for family faalavelaves.

The pre-sentence report also shows that the accused told the probation service that she has re-paid the total sum of $3,500 with which she has been charged. However, when the probation service checked with the accused’s employer, they were advised that the accused had paid only $3,400.

Aggravating features

When the accused committed the present offences, she was in quite a senior positions in her former employer’s company where she was responsible for receipting payments made by clients who came to hire rental cars from her employer. When she stole $750 on 27 September 2006, she was her employer’s sales and representatives consultant. When she stole the total sums of $1,000 and $1,750 in October 2006, she was holding the managerial position for sales and marketing.

The accused had also just been employed by her former employer for less than four months when she committed the first offence. She had also just been promoted on 6 October to the managerial position for sales and marketing when a few weeks later in the same month she committed the second and third offences.

As with many cases of theft as a servant, there is a relatively high degree of criminality involved in this case. It also involves breach of trust by a senior employee entrusted with receipting monies paid to her employer.

Mitigating features

The accused’s plea of guilty is a mitigating feature. But the accused’s plea of guilty was not given at the earliest opportunity. She had initially pleaded not guilty to the charges and only changed her plea to guilty on the date of trial. I will therefore give a limited discount of 15% for the accused’s guilty plea instead of the usual one third.

The fact that the accused is a first offender and appears to have been a person of good character prior to the commission of these offences is also a mitigating feature. So is the partial restitution of $3,400 she has made to her former employer. However, the fact that the accused told the probation service that she has made full restitution of $3,500 but when the probation service checked with the employer they were told that only $3,400 had been re-paid, does not reflect favourably on the credibility of the accused. Partial restitution was also only made shortly before the date of trial.

As for the reasons given by the accused for committing these offences, if the financial pressures on her were the maintenance and upkeep of her family and family faalavelaves, the accused’s husband owns and operates a taxi van from which he can earn money for the family. The accused was also employed herself. Whilst I accept that food for the family is a daily need that must be met every day, school fees and family faalavelaves are not daily occurrences. The accused’s two infant children by her present husband are also aged 18 months and 4 months so that they are too young to go to school. The only children who could be attending school are the accused’s two daughters aged 10 years and 8 years from her first marriage.

The decision

As this case involves three counts of theft as a servant, I would have to apply the totality principle and look at the overall gravity of the total offending. Having regard to the degree of criminality involved in this case and the other aggravating features as well as the need for deterrence in this type of offending, I will take 18 months imprisonment as the starting point for sentence. I will deduct 15% or 2½ months for the accused’s delayed plea of guilty. That leaves 15½ months. I will deduct another 3½ months for the other mitigating features. That leaves 12 months.

The accused is sentenced to 12 months imprisonment on each of the three counts of theft as a servant. All sentences to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Stevenson & Tuala Law Office