Police v Vaifale [2010] WSSC 60 (15 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TANIELU VAIFALE,
male of Vailuutai
Defendant

Counsels: Mr M. Lemisio for the prosecution
Defendant unrepresented

Sentence: 15 March 2010

SENTENCE

Tanielu you appear for sentence on charges of theft as a servant. The summary of facts which you have admitted as correct relates that you are a 45 year old male of Vailuutai and the registrar will now read into the record paragraphs 2 to 8 which represent the facts of this offending:

The defendant was employed as a truck driver at Ah Liki Wholesale. As a truck driver, the defendant was responsible for the delivery of goods from the Ah Liki Wholesale Warehouse to various local stores. Once goods were delivered and handed over to the store owner (the "customer"), the defendant issued an invoice listing the various items purchased. The invoice would also record the total balance (the "balance") which was to be paid by the customer once goods were handed over.

As a general company policy, customers of Ah Liki Wholesale paid the balance either in full or by part payments. When a customer made full payment, the defendant issued a separate receipt which recorded the actual amount he received. If the balance was paid in part, the defendant would also note this on the receipt together with the balance still owing. This receipt was then signed by the defendant in the presence of the customer, a copy of which the customer retained.

The defendant collected the remaining balance from the customer either on the following day or the next delivery date. A second receipt was then issued by the defendant to confirm that the balance was paid in full, and the customer did no longer owe anything. This receipt was also signed by the defendant and a copy was given to the customer.

At the end of the day's deliveries, the defendant was given a summary sheet (the "summary"), and was required to list the invoices he issued, the debts he collected (from the invoices that were paid in part) as well as the invoices not yet paid. The amount recorded by the defendant under the "debts collected" section of the summary did not match the amount he recorded on the receipts issued to the customer upon receipt of payment. The amount recorded by the defendant on his summary was less than the amount he wrote on the receipt and that which he received from the customer.

On seven (7) separate occasions between the months of April and June 2007, the defendant being a servant of Ah Liki Wholesale Company Limited, stole money in the above manner and fashion. The details of these incidents are as follows:

Info #	Date	Customer	Balance owing and paid by customer (as per receipt)	Amound Recorded on the Defendants Summary under 'debts collected'	Difference
S602/07	19/04/07	Louise Westerlund	$1,700.00	$1,000.00	700.00
S603/07	21/04/07	Louise Westerlund	$1,300.00	$1,200.00	100.00
S604/07	24/04/07	Louise Westerlund	-		$1,000.00
S605/07	19/05/07	Louise Westerlund	$4,700.00	$4,400.00	300.00
S606/07	24/05/07	Louise Westerlund	$6,311.85	$6,211.85	100.00
S607/07	26/05/07	Louise Westerlund	$4,249.15	$4,049.15	200.00
S608/07	2/06/07	Louise Westerlund	$6,900.00	$6,400.00	500.00

The total amount of money stolen by the defendant was $2,900.00SAT. At all material times, the defendant acted without the knowledge and authority of his employer.

Like drug offending, theft as a servant is one of the most prevalent offences in our community and because of that and the seriousness of such offending and its consequences to a small community, the court has evolved a normal sentencing policy for such offences of imprisonment unless there are strong reasons why a case should be treated differently. And for repeat offenders, come knowing that nothing will save you from prison.

The defendant satisfies all these categories. He stole a substantial sum of money over a very short period of time from his employer and he is a repeat theft offender. There is no question Tanielu imprisonment is necessary for your case, the only question is how long. You should be aware that theft as a servant carries a maximum penalty of 7 years in prison but the range of previous sentences for thefts like the thefts you committed with values similar to what you stole lies in the 9 to 18 months area. Prosecution has cited two such cases Police v Vaigafa [2008] WSSC 24 where a period of 1 year and 3 months was imposed for a theft of $3,200.00 and Police v Valaauina [2009] WSSC 21 where a defendant received a 12 month prison sentence for stealing a total of $4,376.70.

Considering all factors the appropriate range of sentence to be imposed for your thefts Tanielu is in the 12 month imprisonment period. What I am not sure about and what is not clear is the extent of your previous convictions for theft. The position regarding your previous conviction is that the prosecution are only able to verify a ten year old conviction for theft. While that shows you are a repeat offender, because it is an old conviction with a light penalty, I do not propose to increase your sentence above the 12 months that should be imposed. But if it were more recent, I would have. You are convicted and sentenced to 12 months imprisonment in respect of all the charges.

JUSTICE NELSON