Police v Choi [2008] WSSC 4 (20 February 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

IMELDA CHOI
female of Vaiala & Vaitele-fou.
Accused

Counsel: K Koria for prosecution
R Papalii for accused

Sentence: 20 February 2008

SENTENCE

The charges

1. The accused appears for sentence on 38 counts of falsifying accounts pursuant to s.99 of the Crimes Ordinance 1961 each of which carries a maximum penalty of 5 years imprisonment. To those counts the accused has entered a delayed plea of guilty.

The offending

2. According to the summary of facts, the accused was at all material times an employee of Chang Holdings Ltd working as a supervisor at her employer’s petrol station at Matautu-uta.

3. From 6 November 2004 to 8 January 2005, the accused, together with other employees at the said petrol station participated in a system whereby they would fraudulently take money from customers of the petrol station. The system used involved the said employees overcharging customers for petrol and taking the overpaid amounts. The accused received only monetary tips given to her by the principal offender, a shift supervisor.

4. The accused’s involvement was in falsifying the accounts of the company in order to conceal the thefts that were taking place. In that way, thefts of amounts varying from $90 to $400 were concealed on 38 separate occasions from 6 November 2004 to 8 January 2005. The total of the amounts falsified by the accused is $7,977.83.

The accused

5. The accused is a married woman with four young children aged between one and three years. She is now close to 30 years of age but was about 27 years of age at the time of these offences. She left secondary school at Year 12.

6. The accused is a first offender. She has apologised to her employer and has repaid the sum of $580.

Some relevant sentencing considerations for theft and fraud in the course of employment

7. In Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner, the learned author says at para 12.205 at p 341:

"Some 71 cases of stealing in the course of employment were found in the 1990-2000 period. In many of these cases counts of fraud and forgery were covered by the global sentence. 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."

8. In respect of the effect of a sentence on the offender’s family, Professor Kate Warner in Sentencing in Tasmania (2002) 2nd ed says at para 3. 704 at p.115:

"Hardship to the offender’s family is usually given very little weight as a mitigating factor; it is regarded as part of the price to be paid for committing a crime. So, in Sullivan 91975), it was stated that where the public interest requires a prison sentence, substantial or otherwise, that sentence must be imposed despite the regrettable hardship which innocent members of the family will suffer. But exceptional hardship other than financial may be relevant, and where the offender is a single parent or the imprisonment of both parents would have children without parental care, Courts have adapted a more sympathetic attitude. The circumstances, however, must be truly extreme or exceptional."

The decision

9. Bearing in mind the above circumstances, I take into account for sentencing the fact that the accused was a supervisor and the breach of trust involved, the total amount of money fraudulently taken and which the accused tried to conceal by falsifying her employer’s accounts, and the number of occasions the accused falsified her employer’s accounts. I also take into account the fact that the accused made some financial gain from her unlawful actions even if by way of tips. This was really a systematic series of crimes committed by the accused even though she says other employees were also involved and she was not the principal offender.

10. On the other hand, I give limited credit for the accused’s delayed plea of guilty. I also take into account the amount of $580 repaid by the accused and the fact that she is a first offender.

11. Taking all those matters into account and bearing in mind the need for deterrence in fraud cases, the accused is sentenced to 10 months imprisonment on each of the charges which involved $200 up to $400. On every other charge which involves less than $200, the accused is sentenced to 9 months imprisonment. All sentences are to be concurrent.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Toa Law, Apia for accused