Police v Rudnick [2010] WSSC 48 (25 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

THOMAS JOHANNES RUDNICK,
male of Australia and Alafua
Defendant

Presiding Judge: Justice Slicer

Counsel: F Lagaaia for the Prosecution
L R Schuster for the Defendant

Sentencing: 25 May 2010

Charge: Theft As A Servant

SENTENCE

1. Thomas Johannes Rudnick has pleaded guilty to five (5) charges of Theft as a Servant contrary to the Crimes Ordinance 1961, sections 85, 86.
   
2. The defendant was employed as a sales representative by a reputable company. He stole monies on five occasions between 7 April and 3 July 2009 to an amount of SAT$4,100.00. His thefts were discovered and he was interviewed and charged on 27 July.
   
3. The company has been harmed by his dishonesty, its proprietor stating that the fraud has damaged the company's reputation and made it more difficult to retain the confidence of customers.
   
4. The defendant aged 51 has no prior convictions. He has repaid his employer in the sum of SAT$4,970.00, more than that stolen but presumably compensation for the cost of rectification and damage caused. He had received money from customers and used that money to repay personal loans.
   
5. Rudnick is entitled to the benefit of his plea although it was entered late, on 3 May. He has received many favourable written testimonies and character references from respected persons. He has expressed remorse for his conduct.
   
6. A pre-sentence report states that the offender claims that he now has his financial circumstances under control. It confirms that he is a person of good character.
   
7. Ordinarily theft by a servant warrants the imposition of an immediate custodial penalty (Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12; Police v Tevaga [2008] WSSC 58; Police v Talatonu Filiga [2006] WSSC 16 (16 January 2006). The Court is entitled to take into account the relatively small amount of money taken. I agree generally with the observation of the Court in Tevaga that a sum of SAT$1,203.00 was not a small amount by Samoan standards but also acknowledge that the assessment of loss is relative both to the amount of money handled by a large commercial enterprise and a small trader. In the case of the latter the harm caused is far greater.
   
8. The acts of dishonesty were those of a breach of trust. The Court must also take into account prevalence and the need for general public deterrence. In favour of the defendant is his repayment of the money and the fact that a long term of imprisonment would cause him to lose his current job and harm any prospects of future rehabilitation.
   
9. Consistency in sentencing is an important part of any imposition of sanction and this Court ought pay regard to the cases cited above. However, the Tevaga case involved a more serious breach of trust since it involved financial dishonesty by an internal audit consultant within the Ministry of Revenue. The Court should respect and apply the sentencing regime unless there are special reasons to depart from consistency. Here the defendant, aged 51, has managed the journey through life without conviction. He has three children aged between 5 and 14. His wife went back to work, despite illness, to help repay the obligation to the employer. His father-in-law honoured him with a title. He has helped the government of Samoa in financial matters and is highly regarded by a Minister of State. His current employer has given him managerial responsibilities knowing of the defendant's dishonesty. The case permits an exception to the general sentencing regime. However an alternate sentence is required.
   
10. Here the pre-sentence report suggests as an option an effective suspended sentence achieved by way of section 113.
    
11. Here there are five (5) charges and the Court will impose a composite penalty intended to provide deterrence but allow for future control of the defendant's conduct.
    

ORDERS

1. Thomas Rudnick is convicted of the crime of Theft as a Servant.
   
2. In relation to information S1773/09, Thomas Rudnick is ordered to undertake 100 hours of community service.
   
3. In relation to informations S1946/09 and S1948/09, Thomas Rudnick is fined the sum of SAT$1,000.00.
   
4. In relation to informations S1949/09 and S1951/09, Thomas Rudnick is to appear for sentence if called upon within a period of two years. It is a condition of the order that he commit no crime or offence involving dishonesty within that period.
   

JUSTICE SLICER