Police v Viliamu [2009] WSSC 52 (29 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SAWEJ VILIAMU a.k.a SAUESI VILIAMU male of Siumu.
Accused

Counsel: L Su’a-Mailo for prosecution
R Schuster for accused

Sentence: 29 May 2009

SENTENCE BY SAPOLU CJ

The charges

1. The accused was originally charged with five individual counts of theft as a servant, one joint count of theft as a servant with a co-accused, and one count of false pretence. To those charges he pleaded guilty at the earliest opportunity. The accused was not represented by counsel at that time.
   
2. The accused was then remanded for a pre-sentence report and sentence. On the day of sentence the accused appeared with his former counsel who applied to have the accused’s plea of guilty withdrawn. A series of adjournments then followed for reasons which should be known to counsel.
   
3. Finally, the application to have the accused’s plea of guilty was heard by this Court. On 5 September 2008, the Court stated its conclusion dismissing the application. A full written judgment was delivered to counsel on 8 September 2008.
   
4. That judgment was appealled by the accused who was still being represented by his former counsel. That appeal was heard by the Court of Appeal at its sitting on 28, 29 April and 1 May 2009. On 1 May 2009, counsel for the accused applied to withdraw from the appeal. His application was granted by the Court of Appeal. Counsel who is now representing the accused then appeared for the accused and withdrew the appeal.
   
5. The case was then remitted back to this Court for sentence. Counsel for the prosecution then sought leave to withdraw one of the theft as a servant charges against the accused. Leave was granted accordingly. So only six charges now remain against the accused.
   

The offending

6. As it appears from the amended summary of facts that was produced by the prosecution, the accused was at all material times employed by the Electric Power Corporation (the EPC) as an Asset Accountant.
   
7. On four separate occasions in December 2007, the accused without the knowledge and authority of the EPC sold scrap metals belonging to the EPC and kept the monies received for his own personal use. In executing those sales, the accused by false pretence induced the company called Pacific Recycles Ltd to accept a document as official confirmation for the sales.
   
8. It appears from the summary of facts that what had happened was that following a tender by the EPC in 2007, a particular company was awarded the job of weighing scrap metal materials that were to be sold overseas. The accused was instructed to supervise that job for the EPC.
   
9. On Tuesday 4 December 2007, the accused hired a truck from another company with instructions to the driver that the scrap metals ware to be taken to two companies, namely, Cash 4 Metal at Faleata which had been awarded the tender and another company Pacific Recycles Ltd at Tafaigata.
   
10. On Wednesday 5 December 2007, the hired truck took one load of transformers to Pacific Recycles. However, when the truck arrived at Pacific Recycles, the assistant general manager of that company asked the accused for an official confirmation from the EPC that Pacific Recycles was authorised to weigh the scrap metals.
    
11. The accused then pleaded with the assistant general manager of Pacific Recycles to hold on to the scrap metal whilst he obtained official confirmation from the EPC. Later on the same day, the accused returned with a quotation with an "approved" stamp on it. This induced the assistant general manager to accept the quotation as official confirmation from the EPC that Pacific Recycles was authorised to weigh the scrap metal. The accused was then given $177 as part payment.
    
12. Between 4 and 9 December 2007, the accused took another load of transformers to Pacific Recycles and it was accepted by the assistant general manager. The total quantity of scrap metals for those two loads was five transformers. The accused was given $347 as final payment. So the total amount paid to the accused was $524.40.
    
13. On Saturday 8 December 2007, the accused went to the EPC store room at Vaitele and asked his co-accused for three sets of streets lights which he took to his house without the knowledge and authorisation for the EPC. The said street lights were the property of the EPC and were worth $1,500.
    
14. On Tuesday 11 December 2007, upon instructions by the accused, another load of scrap metals was delivered to Pacific Recycles. This load consisted of two 25 KVA transformers, one 15 KVA transformer, and one PVC Ali Cable. For that load the accused was paid $639.30.
    
15. On Wednesday 12 December 2007, upon instructions by the accused, another 25 KVA transformer was delivered to Pacific Recycles. The accused was paid $388.80.
    
16. On the same date, upon instructions by the accused, another load of scrap metals which consisted of one stainless steel, one Cleen Ali, and one PVC Coffer Ali was delivered to Pacific Recycles. The accused was paid $398.40.
    
17. The total amount received from the proceeds of the unauthorised sales was $4,371.30. The total amount that was taken by the accused was $3,451.30.
    

The accused

18. At the material times, the accused was about 28 years old and holds a degree in commerce and a certificate in management from the National University of Samoa. He is married with two young children.
    
19. Following the actions of the accused and other staff members alleged to have been involved in the theft of EPC transformers, the EPC lodged a complaint with the police on 14 December 2007.
    
20. After the police had successfully investigated the complaint and recovered the stolen properties, the in-house solicitor for the EPC wrote to the police by letter dated 4 January 2008 requesting withdrawal of the EPC’s complaint by saying:
    

"We hereby ask to kindly consider that the same staff have apologised and truly regretted taking part in the alleged deed. We have also accepted their apology considering that the stolen properties have been recovered.

"[Some] of the staff in question have been with the Corporation for years and their contribution and service have been significant. All of them have proven to be hardworking and committed to their respective jobs. EPC is sad to see these good workers as they have been disciplined by termination of their employment. We are of the view that these men have learnt their lesson and that they would not want a repeat of such situation.

"We thereby seek your kind indulgence in allowing a withdrawal of the EPC complaint against the men who were purportedly involved in the above case".

21. When this case was previously before Vaai J for sentencing in 2008 after the accused had pleaded guilty to the charges, the general manager of the EPC wrote to the Court by letter dated 4 March 2008 saying:
    

"[I] would like to bring to your attention the fact that the Electric Power Corporation (EPC), the former employer of Mr Viliamu, has previously withdrawn its complaint against the same in a letter dated 4 January 2008...

"[I] hereby humbly and respectfully request your Honour to kindly consider leniency towards the above-named as the matter has been resolved and settled between the EPC and Mr Viliamu.

"For your information, Mr Viliamu confessed to the misdeed and was dismissed from his job..."

22. Pacific Recycles, one of the two victims in this matter, has also by letter dated 24 May 2009 written to this Court saying:
    

"We have been personally approached by Mr Sawej Viliamu and has apologised to us for what he did. We have accepted his apology in its totality and sincerity and we noted that Mr Viliamu is truly remorseful of what happened".

23. Pacific Recycles also says in the same letter that the accused has agreed to work for them on a voluntary basis every Saturday under its rubbish collection programme and that will save the company extra expenses.
    
24. The pre-sentence report dated 6 March 2008, shows that he accused had shown deep remorse for his actions. The pre-sentence report also notes that there had been reconciliation between the accused and the EPC and Pacific Recycles. However, it is also noted in the pre-sentence report that the assistant general manager of Pacific Recycles had informed the probation service that the accused had agreed to pay back within three months starting April 2008 the amount of $3,600 the company had lost as a result of the police investigation which recovered the stolen properties.
    
25. It appears from the letter dated 24 May 2009 from Pacific Recycles that only part of that mount has been paid.
    
26. The accused through his present counsel also apologised to the Court and expressed deep remorse for his actions.
    
27. The accused is also a first offender and it appears from the pre-sentence report and the testimonial from his father that he was a person of good character prior to the commission of these offences.
    

Aggravating factors

28. The primary aggravating factor in this case is that the accused was employed in a senior position of responsibility when he abused the trust and confidence his employer had entrusted in him.
    
29. This was also not a one off incident of theft but five separate such incidents.
    
30. The total financial gain obtained by the accused from his offending is also not insignificant.
    

Mitigating factors

31. The accused’s plea of guilty to the charges at the earliest opportunity is an important mitigating factor. Even though he later sought through his former counsel to withdraw his guilty plea and this case even went to the Court of Appeal where the accused’s appeal was withdrawn by his present counsel, when the case came back to this Court for sentence, counsel for the prosecution withdrew one of the theft as a servant charges. As I understand counsel for the prosecution, that was the one charge which caused the accused to seek a withdrawal of his guilty plea to all charges.
    
32. It also appears from the two letters from the EPC, the accused’s former employer, that the accused readily confessed to his misdeeds and this matter was settled between him and his former employer. All of the stolen properties have been recovered.
    
33. The accused also apologised to Pacific Recycles and his apology was accepted. He has paid back part of the money he obtained from that company and has offered to work part time under the company’s rubbish collection programme on a voluntary basis.
    
34. The fact that the accused is a first offender and was a person of good character prior to the commission of these offences is also a mitigating factor.
    
35. The forgiveness of the accused by his former employer as well as the letter by his employer to the police to withdraw its complaint and the letter to Vaai J seeking leniency for the accused when passing sentence are also very important mitigating factors.
    

The decision

36. Having considered the aggravating and mitigating factors, I have come to the view that this is not an appropriate case for a custodial sentence.
    
37. The question then is what would be an appropriate non-custodial sentence. The criminality of the offending is serious. But the mitigating factors have made it inappropriate to impose a custodial sentence.
    
38. I bear in mind that the accused is still relatively young. I also bear in mind that the accused must not quickly forget the seriousness of his offending in case he commits the same type of offence again. The accused has to realise at heart the seriousness of his offending so that he will not re-offend.
    
39. In the circumstances, I have decided to convict the accused on the remaining charges and placed him on probation for 18 months on such conditions as directed by the probation service. One of those conditions may be to work part time for Pacific Recycles on a voluntary basis under its rubbish collection programme as the accused has already agreed to do. The probation service to determine a fair and appropriate length of period for such voluntary service.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Schuster Law Firm