Police v Smith [2011] WSSC 121 (26 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

JOAN SMITH
female of Moamoa and Salelologa.
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Mr A Su'a on behalf of L T Masipa'u for defendant

Sentence: 26 September 2011

SENTENCE

This defendant is a 23 year old female of Salelologa, single and lives with her parents and attends to the normal domestic functions and responsibilities a girl her age does in a very typical Samoan family. She was educated to a year 13 level. And no doubt because of that she was able after school to obtain good employment with a company in Salelologa. That company was Oceanic Communications Limited and the summary of facts which the defendant through her counsel has accepted states that she was employed there from late January 2009 to January 2011 when the present matter came to light. She was initially employed as a Data Entry Operator but later appointed as a Cashier/Finance Officer for the Savaii branch of the company.

Her primary responsibility was to collect and reconcile monies from sales representatives derived from the sale of Digicel top-up cards. She was required to lock these in a safe overnight and deposit them into the company bank account the following day. Once the monies were banked the defendant was charged with preparing a daily sales report for the Upolu main office which reflected the daily sales of each sales rep. These records would then be cross checked online with the amounts banked by the defendant.

On or between 29January 2011 and 05 February 2011 the defendant collected monies from a number of sales reps of daily sales of the top-up cards. The defendant failed to bank these monies in accordance with the usual practice and instead kept them for her own personal use. The amount taken by the defendant without the knowledge or prior authorization of her employer is said to be $20,000. As a result the defendant was charged with and has pleaded guilty to stealing $20,000 from her employer the said Oceanic Communications Limited.

The maximum penalty for stealing from your employer or theft as a servant is 7 years in prison. Again this is a sad case of a bright young woman who could not resist temptation and stole her employers monies. According to the charges the theft was committed over a one week period between 29 January and 05 February 2011. The summary of facts is very unhelpful in its failure to identify what the defendant did with this $20,000 which is an extraordinarily large amount of money stolen over a very short period. The probation office pre-sentence report does not assist either. The court is left with the bare assertion that the defendant kept these monies and applied it for her own "personal use".

But the prosecution memorandum does helpfully set out the relevant sentencing principles applicable to theft as a servant cases. Which are to the effect that the prevalence and seriousness of such offending invariably means a term of imprisonment is imposed, gender notwithstanding. Indeed Tafaigata is full of young women serving terms for this sort of crime. The real question for me is how long is appropriate to the circumstances of this case and the circumstances of this particular defendant.

The maximum penalty as I have stated according to law for this offence is 7 years in jail. But as your lawyer has correctly pointed out that term should not be imposed on you because of the following factors. Firstly you pleaded guilty to the charge and have saved the courts time and scarce resources. Secondly you are a first offender, you come from a good background and history and have a clean record. Your counsel has submitted that a third factor should be the apology that you gave to your employer. And your lawyer refers to this in his submissions. However the difficulty with that Joan is that on the file is a letter from Oceanic Communications Limited signed by its Country Manager Mr Philip Yam saying that no form of apology or reconciliation has been made to them. This conflict between what your lawyer says and what is in this correspondence means the court cannot give you credit for an apology made to your employer. What the letter does stress is the financial loss to the company caused by this theft and it confirms no restitution of any kind has been made. If there had been such restitution credit could have been given for that matter as well.

The police in this case have sought a 2 year penalty be imposed for this offence. That is consistent with sentences that this court has imposed in cases similar to yours. Considering all circumstances, I will accept that recommendation. The term also accords with the large amount of money involved in this theft.

For this matter you will be convicted and sentenced to a period of two years in prison.

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