Police v Fogatia [2010] WSSC 112 (21 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

ROSATINO FOGATIA
aka ROSIE FOGATIA
female of Luatuanuu.
Defendant

Counsels: Ms F. Vaai and Ms T. Nelson for prosecution
Mr R. Schuster for the defendant

Sentence: 21 June 2010

SENTENCE OF NELSON J.

The defendant appears for sentence on charges of theft as a servant. She was at the relevant time employed by one of the local banks as a supervisor in the Lending Administration section and as such she misused her position to commit these offences. It appears from the summary of facts that the amounts involved are substantial although the totals that are given in the summary do not necessarily reflect the actual financial gain to the defendant as a result of the offending. This amount is referred to in a certain deed of agreement made between the defendant and the complainant bank dated 13 February 2009 whereby the defendant undertook to make payments of restitution of the amounts therein stated to the complainant bank.

Approximately 12 months ago the court departed from its usual practice because of a special plea put in by the complainant bank and because of the other special circumstances surrounding the defendants offending to allow her time to make partial or full restitution. Not in an effort to avoid imprisonment because the seriousness of the offending requires an imprisonment penalty but in an effort to allow the defendant an opportunity to reduce the term for reasons of remorse and restitution.

The current situation however is that the defendant has been by and large unable to give effect to that restitution for reasons which she has put in a letter to the court dated 15 May 2010 which I have had placed before me. I can understand from that letter the reasons why restitution has not been possible and only a small amount has in fact repaid.

It is now the function of the court to pronounce sentence on the defendant for her offences and I take into account the submissions made by her counsel that she is a first offender who has pleaded guilty and she has demonstrated remorse in this matter. I do not propose to delve into the courts sentencing policy for cases of this nature. They have previously been referred to this afternoon in a theft as a servant sentencing carried out by the court and the reasons for such policies are well publicised. The breach of trust occasioned by the defendant who at the material time was a supervisor and the premeditation and well planned nature of the offending over a long period of time being also factors that must be taken into consideration.

The maximum penalty for these charges individually is 5 years imprisonment. Considering the nature of the offending that you undertook, a starting point of 4 years is appropriate. From that period I will deduct one-third for your guilty plea because that guilty plea not only expresses your remorse for what you did but also avoids what otherwise would have been on what I have seen an onerous and complex criminal trial that would have taken a lot of time. You should therefore receive the full credit for your guilty plea. In addition to the one-third deduction I will make a further deduction of 12 months for the fact that this is your first offence and the fact that there has been repayment of comparatively speaking a small amount of what was involved. For that fact and your first offenders status and also the other factors in your favour, the court deducts 12 months. That leaves a balance from the original start point of 20 months and for these offences you are convicted and sentenced to 20 months in prison on each charge but all terms will be served concurrently.

JUSTICE NELSON