Police v Falema'a [2009] WSSC 121 (1 December 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MASELOTA FALEMA’A,
Defendant

Counsels: Ms. F. Vaai for the prosecution
Mr TRS. Toailoa for the defendant

Sentence: 01 December 2009

SENTENCE

This defendant appears for sentence on 14 counts of theft as a servant committed while he was employed by the ANZ Bank in Apia. His responsibilities included receiving monies from clients for repayments of loans and for lease payments. His modus operandi in this matter was to withhold lodging certain payments received from clients and to misappropriate these for his own personal use. The amounts involved ranged from $500 to $800 and the total amount which is the subject of the charges is $8,500. These monies were stolen over a nine month period in 2004.

This is not the first case of theft of a substantial sum by an employee of a bank. Sadly it probably will not be the last either. But in all cases of this nature that have come before the courts with very rare exceptions the court has imposed a sentence of imprisonment to enforce the deterrent aspect of sentencing. As stated recently in Police v Taofia (unreported) 19 October 2009:

"What is necessary is for the penalty to send out the deterrent message that if you steal from your employer you will likely go to jail. And if you do it sixteen times you will certainly go to jail because the degree of criminality requires no other sentence. The real question is how long is appropriate."

That case involved 16 counts of theft as a servant, this case involves 14.

The aggravating factors of the defendants offending have been correctly summarized in the prosecution submission. The breach of trust, the fact that it was not one off offending but was done fourteen times over a 9 month period, obviously the defendant also went to lengths to conceal his offending and it was only revealed according to the police summary of facts when he resigned from his employment. A large amount is involved and such thefts do affect the reputation and confidence people have in financial institutions such as banks which play a significant role in the commerce and well being of any community.

As noted in cases like Chan Kay 19 June 2009 and Samu 11 February 2008, thefts as a servant around the $10,000 to $12,000 mark usually attract a sentence of 18 months imprisonment on a guilty plea first offender basis. The amount involved here is of course less and the degree of criminality of the defendants offending as far as I can determine is also arguably less. Counsel for the defendant has quoted the Court of Appeal decision in Chong Wong 7 November 1991 which summarises the applicable approach. In arguing for a lower penalty, counsel also cited the Court of Appeal decision in Faleatua (unreported) 2 December 2002, where a 6 month prison sentence for similar offending was upheld on appeal. However as noted by the Court of Appeal in its judgment that was a case involving special circumstances. The penultimate paragraph of the judgment reads:

"There are special circumstances in this particular case. We are satisfied that this is an exceptional case in which the lenience recommended by the Probation Service and the mitigating features of the case taken into account by the Chief Justice justified the mercy shown to the respondent."

That precedent should be confined to its unusual and special facts.

In arguing the matter on behalf of his client, counsel also advanced a breadwinner argument because the defendant supports a young family but as noted in cases like Taofia and other authorities, the harm that imprisonment does to people who rely on the defendant as a breadwinner is regrettable but an inevitable effect of the offending of the defendant himself and is to be given limited weight.

All in all I am of the view 18 months is too severe a penalty for your offending. Considering all the circumstances of this matter you are therefore convicted and sentenced to 12 months imprisonment on each charge but all terms are to be served concurrently.

JUSTICE NELSON