Police v Iteli [2009] WSSC 12 (23 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

VICTORIA SHIAOLIN ITELI female of Lalomanu and Toamua.
Accused

Counsel: T Faumuina-Tuuga for prosecution
Accused in person

Sentence 23 February 2009

SENTENCE BY SAPOLU CJ

The charge

1. The accused appears for sentence on the charge of theft as a servant which carries the maximum penalty of 7 years imprisonment. A plea of guilty was entered by the accused to the charge at the earliest opportunity.

The offending

2. The accused is a 26 year old female. She was employed as a salesperson by Computer Services Limited (CSL) at the time she committed the offence for which she is now appearing for sentence.

3. On or about 3 March 2008, the accused was on her lunch break whilst one of her colleagues covered her duties at the front desk. The accused’s colleague discovered that there was a shortage in the Digicel Flex cards supply. So she ordered some cards. She was advised by the Financial and Administration Officer of CSL that there should be a sufficient supply of Digicel Flex cards.

4. The accused was subsequently questioned about the shortage in the Digicel Flex cards. She explained that she had sold them. However, this did not correspond with CSL’s records. The matter was therefore reported to CSL’s management.

During the audit investigation by CSL’s management which followed, it was discovered that between 1 February and 31 March 2008, Digicel Flex cards to the value of $865.00 and one Digicel Sim card valued at $30.00 were missing whilst under the care of the accused. It was also discovered that $8.40 sene in cash was missing from the cash register operated by the accused and $300.00 was short in the accused’s sales banking.

6. The total value of the properties plus the monies taken by the accused from her employer was $1,203.40 sene. The accused’s employment was accordingly terminated and the matter was reported to the police.

The accused

7. According to the pre-sentence report, the accused has a husband and they have two children aged one year and four years.

8. The accused told the probation service that she started working with CSL in 2006. At the time of the present offending, her duties included selling Digicel Flex cards, taking stock lists, and balancing the till at the end of the day.

9. She also told the probation service that she used $600 of the money she took to pay off a bank loan. The rest of the money was used on her other commitments.

10. The pre-sentence report also states that the accused had submitted a letter of formal apology to her former employer and has made full restitution to her former employer. This has been confirmed by the accused’s former employer.

11. The accused also apologised to the probation service for what she did. She has also expressed remorse to the Court.

12. The accused is a first offender. The pre-sentence and the character testimonials on the accused show that she had been a person of good character prior to the commission of this offence.

Sentencing guidelines in cases of theft as a servant

13. The sentencing guidelines which are relevant to cases of theft as a servant were set out in Police v Ulupoao [2007] WSSC 21 where this Court cited from R v Barrick (1985) 81 Cr App R 78 at pp 81-82 and Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner at p 343.

14. Sentences imposed in comparable cases of theft as a servant may also provide relevant guidance: Also see Police v Ulupoao [2007] WSSC 2.

15. I need not set out those guidelines again. They are all to be found in Police v Ulupoao [2007] WSSC 21.

Mitigating features

16. The mitigating features in this case are (a) the accused’s plea of guilty at the earliest opportunity, (b) full restitution has been made by the accused, (c) remorsefulness on the part of the accused, and (d) the fact that the accused is a first offender.

Aggravating features

17. The aggravating feature which is common in all cases of theft as a servant is the breach by the accused of the trust imposed in him or her by his or her employer. In this case, the accused was entrusted by her employer with selling Digicel Flex cards and balancing the till at the end of the day. However, she dishonestly sold some of the Digicel Flex cards and took monies from the till for her own use.

18. I bear in mind, however, the value of the cards and the amount of money taken by the accused and the level of her position in her former employer’s business.

The decision

19. In general, this Court has imposed terms of imprisonment in cases of theft as a servant except where the amount of money or the value of the goods taken is "small". By Samoan standards $1,203.40 is not a "small" amount even though it is also not a very large amount.

20. I also have to bear in mind the need for deterrence in this type of offending.

21. Taking 12 months as the starting point for sentence, I will deduct a 1/3 discount for the guilty plea at the earliest opportunity. That leaves 8 months. I will deduct a further 2 months for the other mitigating features. That leaves 6 months.

22. The accused is sentenced to 6 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution