Police v Joseph [2010] WSSC 142 (19 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

ENOKA JOSEPH, male of Moataa.
Defendant

Counsels: Ms F. Vaai for prosecution
Ms T. Atoa for the defendant

Sentence: 19 July 2010

SENTENCE

The defendant in this case appears for sentence on 15 charges of theft as a servant committed while he was employed as a ticketing officer in the ticket office of Polynesian Airlines Apia. The amounts involved in the thefts were mainly in excess of $1,000 but there are three charges that relate to lesser amounts, two of them around $100 and one for $550 odd tala.

The Polynesian Airlines ticketing system is not complicated. Once travel arrangements for a client are confirmed the office computer generates an itinerary which contains among other things the charge for the airfare. The client then pays this amount to the ticketing officer who passes it on with a copy of the itinerary to the cashier whose function is then to issue a receipt. The receipt is given to the ticketing officer and eventually to the customer.

According to the summary of facts which the defendant has accepted through counsel, between 18th November 2009 and 15th December 2009 the defendant collected monies from customers but failed to pay them to the cashier. Instead of giving receipts to the clients, what the defendant did was to give them the copy of the itinerary which showed that their travel was confirmed but instead of requiring receipts the customers involved in these particular transactions seemed to have accepted the itinerary as sufficient proof of payment. The defendant was able to keep these thefts undetected until the finance section of the airline discovered that his daily sales reports did not all match up with the travel booked and confirmed by him and investigations revealed these misappropriations. The defendant was accordingly dismissed from his employment and the matter reported to the police. The total amount the defendant misappropriated from his employer was $22,792.46. And like many thefts of this nature if the matter was not discovered it is likely that they would have continued to have been committed.

I have already referred in the earlier sentencing of Police v Gasegaseivao the employee of the Ministry of Justice and Courts Administration to the relevant considerations in theft as a servant matters. I am sure the defendant has heard those and the same considerations and remarks apply to his matter. But the degree of criminal culpability in his case is not in my view as severe and neither was the degree of sophistication and planning. For this matter therefore I use a lesser start point namely 4 years.

From that should made deductions as correctly pointed out by your counsel of one-third for your guilty plea. Tthat leaves a balance of 32 months. A deduction should be made for the fact that you are a first offender and the other mitigating factors referred to by counsel as well as those contained in your probation office pre-sentence report. For that I deduct 12 months leaving a balance of 20 months.

I also accept according to what I have read the remorse expressed by this defendant is genuine and it was expressed at the time the offending was detected and in respect of the whole of the offending. People who are genuinely sorry for the wrong they have committed must be given credit for that by the criminal law. I note that there has been an effort made at restituting the companys loss so that the sum of $1,300 has been to date paid by this defendant to the company. There is also an agreement in place aimed at an attempt to repay the balance but the defendant must understand the court cannot give credit for something that has not occurred yet. However for the remorse and these other matters I have referred to I will deduct a further 3 months bringing the defendants balance down to 17 months.

Defence counsel has urged that a lesser period of imprisonment be imposed for you Enoka and has cited Police v Falemaa [2009] WSSC 121 and Police v Samu [2008] WSSC 2. However with respect to counsels arguments I cannot accept them because Falemaa for example involved a considerably lesser amount namely the sum of $8,500 stolen over a 9 month period and Samu does not assist either because in that case the amount was $22,700 and the penalty was 2 years. The defendant accordingly does not qualify for any other deductions from the term that has been calculated by the court and considering the amounts involved in these thefts and the other circumstances of his case a period of 17 months is consistent with like cases.

Accordingly in respect of all charges the defendant will be convicted and sentenced as a total sentence to a period of 17 months in prison.

JUSTICE NELSON