Police v Feepo [2011] WSSC 123 (25 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MULIIPU FAALOUA FEEPO male of Vailoa Faleata and Vaitele-fou.
First Defendant

AND:

IVA PESETA male of Lalovaea.
Second Defendant

Counsel: Ms T Toailoa for prosecution
Ms S Ponifasio for first defendant
Ms T Leavai for second defendant

Sentence: 25 July 2011

SENTENCE

Late last year the court sentenced two employees of the accounts division of the Ministry of Police and Prison to jail terms for their part in a scheme that defrauded the public purse of a substantial amount of money. The scheme involved the issuing and payment of fictitious invoices supposedly for goods and services supplied to the Ministry of Police and Prisons. At one end of the scheme were the two employees of the accounts division of the Ministry of Police and Prisons and at the other end were the two present defendants who were then employees of the accounts section of the Ministry of Finance.

The defendants role was to approve the fictitious invoices and to facilitate payment thereof. Which they were able to do because the defendant Muliipu Feepo was a senior accounting officer in the Ministry of Finance and his co-defendant Iva Peseta an assets officer of the same ministry. They held senior positions in the Ministry. Muliipu would ensure approval of the relevant invoices and Iva would uplift the payments. In this way illegal payments totaling some $102,000 were processed and for this the defendants were paid bribe monies by the offenders in the Ministry of Police. The amounts of bribes paid is not entirely clear but it is clear that they derived substantial financial benefit from these thefts.

This has led to thirty counts of official corruption against the defendant Muliipu Feepo and twenty eight counts of official corruption against his co-defendant Iva Peseta. Charges to which they have pleaded guilty. Official corruption is an offence pursuant to section 35 of the Crimes Ordinance and it exists where

"(a) the holder of any office, whether judicial or otherwise, in the service of the Independent State of Samoa, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself, herself or any other person any bribe, that is to say, any money or valuable consideration whatever, on account of anything done or to be afterwards done by that person in an official capacity; or

(b) Corruptly gives or offers to any person holding any such office or to any other person any such bribe as aforesaid on account of any such act."

In using the words "corruptly accepts or obtains any bribe" the section imports the mental element of corrupt intent. And "Corrupt" is defined in the Oxford dictionary as inter alia "dishonest, crooked, untrustworthy". Clearly the offence has an element of dishonest and untrustworthy behaviour and intent about it. The section also specifically requires that a bribe viz "money or other valuable consideration" be part of the offence. I make mention of these matters in passing because counsel for the defendants have made certain submissions in relation to the nature of the offence. But it is not necessary to embark on an in depth analysis of the requirements of the section as the defendants have pleaded guilty to corruptly accepting bribes to do certain things. In other words they accept they have offended section 35 of the Crimes Ordinance the maximum penalty for which is imprisonment for a term not exceeding 5 years.

There is no doubting the seriousness of this offending. The defendants were essential ingredients of the defrauding scheme. Without them in Treasury the fraud would not have been possible. The victim impact report from the Ministry of Finance relates that the financial impact of this offending was estimated at around $400,000. It also goes to note that although the defendants have apologized to the Ministry Chief Executive Officer the total funds can never be recovered. It correctly notes that the actions of the defendant have affected the trust given by the general public especially in relation to finance and the handling of public funds. The report also states that the Ministry hopes any decision of the court will have an impact on other public servants who have given oaths to look after public funds to refrain from engaging in behaviour like this.

Of this offending the court in sentencing one of the police personnel involved in Police v Miti on 02 August 2010 stated that:

"Although the amounts of the individual thefts fell into the $1,000, $2,000, $3,000 and $4,000 range the total was substantial and the offending was able to be undertaken and covered up for a two year period."

As I said in that case:

"These thefts represented a deliberate and nefarious scheme to defraud the people of this country of a substantial amount of money and to divert such money to the personal use of the defendants."

I accept the prosecution submission that for this kind of offending a term of imprisonment is appropriate and indeed required. And the term must be commensurate with the criminality of the conduct of the defendants. Similar to theft cases it must also reflect the gross breach of the trust involved in the positions that the defendants held; the prolonged repetitive nature of the offending; the fact that the defendants were an essential part of a pre-planned and systematic scheme that defrauded the public of a significant amount; and it must reflect that the offending has had an effect on the trust and confidence vested by the public in those officials responsible for public monies. Such monies are not an officials personal possession. They are accountable for its safe administration and disbursement. There is also a need for a deterrence sentence to apply in cases where public servants have accepted bribes to facilitate theft of public monies.

I am mindful that the defendants appear for sentence not of charges of theft as a servant but official corruption. While official corruption is not an offence that has often arisen in the courts of this country there are precedents for it within jurisdiction. There was a case in the District Court a number of years ago of a Senior Sergeant of police who accepted a money bribe from a drug defendant. He was sentenced to 3 years imprisonment reduced from 4 years for mitigating factors in his favour. There was also the case of a defendant who tried to bribe two judges of the courts before whom he had cases and he received a penalty of 4 years imprisonment.

The present case may be the first one where an offence arises in respect of bribes accepted by public servants purse but the approach to dealing with this case should not be any different to what has been adopted previously. I do however take into account the submission by defendants counsels in mitigation in assessing that penalty.

The defendants pleas though entered late were only done when these charges were finalized by the prosecution and they are therefore entitled to the benefit of a discount for their guilty pleas. I also note that a trial would have been long and complicated given the nature of this matter and that the guilty pleas have by-passed that thus saving the courts valuable time and limited resources. It is also in your favour gentlemen that you are first offenders, that you have previous good character as testified to in your pre-sentence probation office reports. Your lawyers have also stated that the bribes you took may have been for low amounts and that should be taken into consideration in mitigation. But against that must be weighed other factors such as the scale of the offending that was the product of your bribes and the long time period over which your criminal activities continued. You both could have withdrawn from this scheme at any time but chose not to do so. Accepting by public servants of bribes to facilitate a criminal activity has the effect of making the bribe an integral part of the criminal activity. As surely as an aider and abettor of the activity. I therefore cannot accept your counsels other argument that the level of criminality in this matter is low and justifies a non-custodial sentence.

Taking into account all factors including those matters in your favour I consider a 3 year term is appropriate for this offending. And that it sends out to all public servants the right message. Namely that a culture of taking bribes for doing your job is not acceptable and taking bribes to facilitate thefts from the Government purse will land you in prison. At best, it receives stern treatment from the court.

For this matter each defendant is sentenced as a total sentence in respect of all these charges to 3 years imprisonment.

JUSTICE NELSON