Police v Maalo [2011] WSSC 117 (19 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IONATANA MAALO male of Elise-fou.
Defendant

Counsels: Ms L Su'a-Mailo for prosecution
Mr T S Toailoa for defendant

Sentence: 19 September 2011

SENTENCE

After a defendant hearing, the defendant was found guilty of stealing USD$22,700 (approximately ST$54,000) the property of his employer FEXCO Western Union Money Transfer. The defendant was then working as a supervisor of the Western Union airport branch. The defendant's defence raised at trial was that he came home on the night in question with the money but it was stolen out of his unlocked vehicle parked outside their house in the early hours of the morning of the relevant day. He had forgotten about the money because he was preoccupied with a marital dispute with his wife over allegations that she had made to him over the telephone previously that evening.

After hearing and considering the evidence that was called at trial this defence was rejected and he was found guilty as charged of the offence of theft as a servant which carries a maximum penalty at law of 7 years imprisonment. The normal penalty for cases of theft as a servant is one of imprisonment because of the seriousness of the offending and its prevalence in our community. There are many previous decisions of the court setting this out and the principles upon which such sentences are pronounced. There have been cases where non-custodial penalties have been imposed but those are usually because relatively small amounts are involved and special circumstances existed in a particular case justifying such a penalty.

Defendants counsel has strongly urged the court to impose on his client a non-custodial sentence arguing that the victim in this case is a non-natural person; it is a corporation with no feelings or physical existence; it feels no pain or loss, and he has pointed to a passage in the Probation Office pre-sentence report which states under the heading Reconciliation that the Managing Director of Western Union confirmed in a telephone interview that the defendant had already apologised to him personally, and that the Managing Director also confirmed he has forgiven the defendant and that he was willing to find a suitable way to employ the defendant in order to pay back the sum of money that went missing. Counsel also reminded the court that all cases are different and that a custodial sentence would not result in the money in this case being repaid to the complainant and that it would only impose a further burden on the State in incarcerating and having to care for the defendant. He also pointed to the defendants good background and young family and argued that imprisonment would be a lose-lose scenario.

The court has considered counsel for the defences ingenious argument but unfortunately cannot accept it. Firstly, in addition to the pre-sentence report there is also a victim impact statement which has been submitted to the court signed by the General Manager of FEXCO Samoa Limited, the complainant in this matter. It states that there have been promises by the defendant and his family to repay the funds involved in this matter but none of these have eventuated. It also states that the offending has had a deep financial impact on their business, not only in terms of the money lost but the cost of security measures that had to be put in place. Further that employees had to miss several hours of work to attend court proceedings. It also states that the emotional and financial impact of the offending will be felt for years to come and that in the end, through the acts of dishonest employees even honest employees will not be trusted by managers and owners and the defendant should be held accountable for his actions. It ends by stating no apology was sought until last week which apology has not been accepted and there has been no reconciliation. Lastly that the company consents to tender of this statement in court proceedings. It is signed by Molio'o Matafeo Pio as General Manager of the complainant. This is clearly at odds with what is in the probation office pre-sentence report.

The second point is that even though the employer in this matter is a corporation, it would be incorrect to therefore conclude that it feels no pain. Because a financial loss is a very real corporate blow as painful as any physical blow to a natural person, and a large one like this involving some USD$20,000 would undoubtedly affect any companys financial position. And lastly, the nature and scale of the offending committed by the defendant in this case requires in my respectful view the application of the normal policy of the court. There are no exceptional circumstances present justifying any other approach.

You as defendant held in this case a position of considerable trust in the companys airport branch operations. You grossly abused this trust by stealing a substantial amount of money from your employer. The facts disclose that the defendant said nothing about what had happened to his employer and the theft only came to light as a result of an audit of the Companys airport operations. The natural inference to be drawn is that the defendant tried to cover up what he had done.

However I do take into account that the defendant is a first offender and also have some regard to his personal circumstances as canvassed by his counsel and outlined in the probation office report, and your counsel is quite correct, every case is different and the penalty must revolve around the particular circumstances of a proceeding.

Considering all the relevant circumstances of your matter the defendant will convicted and sentenced to a period of 2 ½ years imprisonment.

............................
JUSTICE NELSON