Police v Valaauina [2009] WSSC 21 (6 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

ELENI VALAAUINA, female of Tufuiopa
Defendant

Counsels: Mr. F. Lagaaia for the prosecution
Defendant unrepresented

Sentence: 6 March 2009

SENTENCE

The defendant appears for sentence on nine (9) counts of theft as a servant and as related in the summary of facts, each count carries a maximum penalty of 7 years imprisonment.

She is a 28 year old married mother of Tufuiopa with children and is currently pregnant. She was employed from 11 April 2008 to 20 June 2008 by the complainant company T & N Toleafoa Company Limited as a receptionist and accounts clerk. In that position she handled payments from customers and received cash takings from employees of the various parts of the business. According to the police summary of facts which has been read to and accepted by the defendant she misappropriated during the term of her employment with the complainant company the following sums:

(1) on 10 June 2008 the sum of $2,734.40 from the company’s banking, this is the subject of charge S1240/08;

(2) on 12 June 2008 the sum of $130.00 from cash received from a customer for the purchase of two tyres, this is the subject of charge S1239/08;

(3) the following week on 16 June the sum of $31.30 was taken by her from the coin takings for the day of the company’s service station, this is the subject of charge S1241/08;

(4) three days later on 19 June 2008 she took the sum of $31.00 by altering the pump reading at the company service station, this is the subject of charge S1242/08;

(5) the next day Friday 20 June 2008 she took the sum of $300.00 from the takings of the service station for that day, see charge S1245/08;

(6) the same day 20 June 2008 she took the sum of $300.00 from monies received from a customer for payment for rental vehicles, see charge S1246/08;

(7) again on the same day 20 June 2008 she took the sum of $250.00 from a payment received from a customer for a company rental vehicle, see charge S1240/08;

(8) again on 20 June 2008 from the daily takings of one of the company’s buses, she removed the sum of $250.00, this is the subject of charge S1244/08;

(9) the final charge S1211/08 also relates to 20 June and she is charged with taking the sum of $350.00 from the company’s general monies received that day.

The total monies misappropriated by the defendant is $4,376.70.

The summary of facts further relates these monies were applied for the defendant's personal use and it appears none of the monies have been repaid to the complainant company. It is clear from a reading of the Probation Office pre-sentence report that the defendant has no means to repay the monies and although there is an unverified suggestion that her parents may be willing to repay it no such repayment has occurred.

In the defendants favour is her first offenders status as well as her early guilty plea to the charges. I also note her current physical condition of an expectant mother but she would not be the first expectant mother that has been sentenced to a term of imprisonment and there are facilities at the prison to cater for such eventualities.

Against the defendant are the aggravating factors of her offending. Firstly the breach of her employers trust for personal gain; secondly the consequences that her offending has had on her employer as outlined in their letter dated 23 July 2008 to the office of the prosecution. These consequences are related in paragraph 8 (d) of the prosecutions submission:

(d) Due to the unknowing involvement of other employees in the company, suspicion was aroused as to their honesty/trustworthiness and created a discredit to their service.

The defendant’s dishonest service while at the company has also tarnished the reputation of the company’s service and efficiency.

Also, in reference to a letter from the company regarding the impact that the defendant’s actions has had on the company:

- there were disruptions in the cash flow of the company;

- rental refundable bonds were never recovered creating the company’s loss of revenue and customers;

- there was a loss of diesel profit during the first two months of Eleni’s employment; and

- the Manager in charge of the business was placed under continual pressure and stress.

Further aggravating factors are the short time span within which the offending occurred and the fact that had she not been caught on the 20 June 2008 it is likely her offending would have continued; the large sum of money involved in these offences; the variance of the methods used in her thefts which were no doubt designed to camouflage what she was doing thus indicating the thefts were committed in a premeditated fashion.

The courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is to not only deter the offender himself/herself from such future behaviour but also others who may be tempted to follow his/her example. There are no exceptional circumstances present in this case to depart from the normal sentencing practice and the only question for me how long is an appropriate term for these offences.

The prosecution have helpfully provided a number of cases involving comparable offending and these have proved most useful.

Considering all the factors in this case and making allowance for those that are in your favour as well as those that have been raised in your pre-sentence report and also having regard to the apology you have made today to the court and your expression of remorse for your offending, the following penalties will be imposed:

In respect of information S1240/08 which involves the largest amount of $2734.40 you will be convicted and sentenced to 12 months imprisonment. In respect of information S1239/08, S1241/08 and S1242/08 for smaller amounts, you are convicted and sentenced to 3 months imprisonment. In respect of the remaining information S1245/08, S1246/08, S1240/08, S1244/08 and S1211/08 for the mid range amounts, you are convicted and sentenced to 6 months imprisonment. All these terms will be served concurrently so that you will only serve 12 months altogether.

JUSTICE NELSON