Police v Betham [2009] WSSC 66 (26 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

LITIA BETHAM
female of Tufuiopa.
Accused

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

Sentence: 26 June 2009

SENTENCE

The charges

1. Counsel for the accused told the Court that the accused had initially entered a not guilty plea because she disputed some of the charges against her. When the disputed charges were withdrawn, the accused changed her plea of not guilty to one of guilty to the remaining four charges. The accused now appears for sentence on those four charges.
   

The offending

2. According to the summary of the facts which was confirmed by the defence, the accused is a 37 year old female who is married with children.
   
3. She commenced employment with her former employer, the Embassy of the United Sates in Samoa, in March 2005. She resigned in December 2006 and migrated to New Zealand.
   
4. The accused’s job as a cashier with her former employer involved arranging for bills received by her employer to be paid in cash and receiving invoices from such payments. Upon receipt of a bill, the accused would stamp the bill with three stamps. The paid stamp is affixed by the accused, the other two stamps are approved by her supervisor. The "paid" stamp is an indication that payment has been made. The accused would then create a voucher, attach with it the original bill and forward it to the supervisor for his signature and approval. These documents are later sent to the United States Embassy in Wellington, New Zealand, to be entered in their financial system.
   
5. In February 2007, after the accused had resigned from her job, the new casher discovered discrepancies in one of the electricity bills from the Electric Power Corporation to the Embassy. According to the system used, several of the bills appeared to have been paid but were in fact still outstanding. The matter was accordingly reported and internal investigations were conducted.
   
6. From the investigations, it was discovered that the accused had recorded some of the bills as being paid by entering details into the system to reflect that those bills had been paid when in fact they had not.
   
7. It was also discovered that on four separate occasions the accused had taken monies, without authority, from her employer for her personal use. These four occasions were:
   
   • (a) between 30 September 2006 and 1 November 2006, the accused took $5,768.00 from her employer;
     
   • (b) between 31 October 2006 and 1 December 2006, the accused took $11,260.80 from her employer;
     
   • (c) between 30 November 2006 and 1 January 2007 the accused took $5,878.80 from her employer; and
     
   • (d) between 30 November 2006 and 1 January 2007 the accused took $8,335.20 from her employer.
     
8. The total amount of the money which the accused took from her employer without her employer’s authority was $31,243.20.
   

The accused

9. Counsel for the accused in his submissions in mitigation told the Court that the accused had effectively pleaded guilty at the first reasonable opportunity to the remaining charges when the charges she disputed were withdrawn by the prosecuted. Counsel also told the Court that the accused is a first offender.
   
10. It was also submitted on behalf of the accused, that the accused and her five children had lived with her husband’s family. But when the accused and her husband separated, the accused and her children moved out and rented at another place paid for by the accused. At the same time, the accused had to provide for her children.
    
11. Counsel for the accused also submitted that the accused was under financial pressure at times from her family for faalavelave.
    
12. It was also pointed out by counsel that the accused had intended to repay the monies she took from her employer and had tried to repay $5,000 two months ago but that was rejected by the accused’s employer. He also said the accused is truly remorseful. In a letter dated 23 June 2009 from the Embassy of the United States in Apia to the Court, it is there stated that the Embassy never intended to turn down the offer to repay but simply had to make sure the correct procedures were followed, both for the protection of the accused and the accountability responsibilities of the Embassy’s casher and management.
    

Aggravating factors

13. One of the principal aggravating factors in cases of theft submitted by an employee is the breach by the employee of his/her employer’s trust. In this case, the accused was at the material times employed by her employer as a cashier which is a position that involves financial trust. She abused her employer’s trust by defrauding her employer of monies on four separate occasions before she resigned and migrated to New Zealand.
    
14. The total amount of $31,243.20 which the accused took was also not insignificant.
    

Mitigating factors

15. The plea of guilty by the accused as described by defence counsel and the fact that she is a first offender are two of the mitigating factors in this case. So is the attempt by the accused to repay $5,000 of the total amount she took.
    
16. I also take into account the accused’s personal circumstances submitted by her counsel. However, I do not consider family faalavelave as a mitigating factor. As part of our custom, most Samoans have family faalavelave. But that does not justify stealing from one’s employer; nor do I accept family faalavelave as a mitigating factor for the purpose of criminal sentencing. It would have to be an extraordinary situation before family faalavelave may be considered a mitigating factor.
    

The decision

17. In assessing the criminality of the accused’s offending, I refer to the text Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner where it is stated at p.343:
    

"In assuming 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.

18. Bearing in mind the above sentencing guidelines, the aggravating and mitigating circumstances, and applying the totality principle of sentencing, the accused is sentenced to 2 years imprisonment on each of the four charges against her. Those sentences are to be concurrent.
    
19. Anytime the accused has already spent in custody is to be deducted from that sentence.
    

CHIEF JUSTICE

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