Police v Maselusi [2010] WSSC 128 (2 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

MURRAY MASELUSI,
male of Vaovai and Tafagamanu Lefaga.
Defendant

Counsels: Ms T. Nelson & Mr G. Patu for prosecution
Ms RV. Papalii for the defendant

Sentence: 2 August 2010

SENTENCE

This defendant also appears for sentence on charges of theft as a servant, 65 counts in all. The defendant is a 31 year old male of Vaovai Falealili and Lefaga. He was formerly employed by the ANZ Bank and had been so employed since 2001. From 2005 onwards he was team leader for the transaction processing centre and was subsequently promoted to supervisor for the same division. In that capacity he supervised all staff of the transaction processing centre and supervised the transfer of funds from various bank accounts.

The summary of facts submitted by the police relates that what the defendant did was to transfer various sums of money over the period May 2007 to November 2007 to an account that was set up in his sisters name. The account was originally inactive but the defendant borrowed the access card for the account from his sister and was thus able to access the account. He used the account to transfer monies into and withdraw monies therefrom for his own personal purposes. The funds deposited to the account ranged from amounts less than $1,000 to amounts in excess of $2,000 and in one instance an amount of $5,691.23. The total amount the defendant stole during his 6 month crime spree was $75,992.12 a substantial sum by any measure. The summary of facts also relates that at various times the defendant changed the name of the account owner in order to avoid detection. And he avoided detection until an internal investigation was launched and revealed the defalcations.

Again this is a case of offending involving a person in a high position of trust abusing his office for personal gain. He betrayed the confidence that was expressed in him by his employers in elevating him to the position that he held. His offending was such that elements of sophistication and concealment were no doubt involved. And as a team leader his abuse of authority was gross, deliberate and extensive.

Again there is no question as his counsel has rightly conceded that imprisonment is necessary and appropriate. The real question is how long. No doubt the defendant has heard the comments I have made in the previous sentencing of Police v Miti, they are of equal application to his case. I take into account in his favour the fact that he is a first offender as well his guilty plea which was entered when the prosecution finalized its charges, a plea which Ms Papalii correctly points out saved the necessity of what would otherwise have been a long and drawn out trial and inquiry. I also accept in his favour that an attempt has been made by him at restituting the damage he has done to the bank. It has been confirmed by the Probation Office pre-sentence report that $3,000 has been repaid. That leaves a substantial balance which based on what I have seen clearly the defendant is not able to pay or become able in the short term to pay given his current financial situation and outstanding liabilities. And as noted in the earlier passage referred to in the last sentencing the making of restitution is a factor to be given some weight only. His expression of remorse must also be balanced by what is in the victim impact report filed by the Attorney Generals office that his original not guilty pleas caused undue stress to all concerned and necessitated a full internal investigation with his employer having to fly in an investigating team from head office overseas.

Police in this case are seeking a 3½ to 4 year term of imprisonment. Again I think that given the circumstances of your case that is a little on the high side and is also not consistent with penalties imposed by this court in other like cases. However the penalty must always reflect the criminality of the offending.

Accordingly on the charges of theft as a servant involving sums of $4,000 upwards the defendant is convicted and sentenced to 3 years in prison, on charges in the $2,000 to $4,000 range defendant will be convicted and sentenced to 2 years in prison, on the charges in the $1,000 to $2,000 range defendant will be convicted and sentenced to 12 months in prison. On all other charges the defendant will be convicted and sentenced to 6 months in prison. All these terms will be served concurrently so that you will only serve a total period of 3 years in prison.

JUSTICE NELSON