Police v Iaseto [2011] WSSC 150 (4 October 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IOSEFO IASETO male of Papaloloa.
Defendant

Counsels: Ms L Taimalelagi and FE Niumata for prosecution
Ms T Atoa for defendant

Sentence: 04 October 2011

SENTENCE

This defendant appears for sentence on 3 counts of theft as a servant. The first is S2017/10 involving the theft on 19 April of $78.70 the property of his employer Tradepac Marketing Company Limited. The second is also a theft as a servant charge S2016/10 on the same day but involving theft of $63 from his employer. The primary charge is S2012/10 which is a charge that between the 13 November and 08 December 2009 the defendant stole $8,191.33 from his aforesaid employer. Each charge carries a maximum penalty of 7 years according to law.

The police summary of facts which the defendant has admitted through his counsel states that he is 33 years of age, married with 3 children. He was employed by Tradepac Marketing Company Limited as a delivery salesperson responsible for deliveries of his employers goods to customers. Procedure was that at the end of the day the defendant would return from his deliveries hand over his cash and the company would record all the goods that were delivered that day. On 08 December 2009 the company did a stock take to check the quantity of goods on the defendants truck. It was discovered that goods to the value of $8,191.33 were missing from the defendants truck. And the defendant failed to provide an explanation as to what happened to these goods.

In respect of the other two charges the summary records that on 19 April the defendant when he handed in his cash at the end of the day failed to turn in the cash for two receipts the one for the $63 and one for the $78.30. It appears that the defendant misappropriated those sums for his own purposes.

The matter was reported to the police and after investigation the defendant was charged and has pleaded guilty to the 3 counts of theft as a servant. The guilty pleas were entered at the first available opportunity after the prosecution had finalized its charges in this matter. The fact of that guilty plea and the fact that the defendant is a first offender are obviously factors in his favour as pointed out by his counsel.

The courts sentencing policy for offences of theft as a servant is well known. Invariably the penalties are terms of imprisonment because of the seriousness of the crime and its prevalence in this community. Charges of theft as a servant involving a total amount of around $10,000 usually attracts a penalty of 18 months in prison on a first offender guilty plea basis. I note the amount here totals $8,191.33 in respect of the primary charge which is a little less than $10,000.

In the defendants favour his counsel has referred to the issue of restitution of some of the stolen money. According to the defendants counsel the amount of $3,580.10 was deducted from the defendants wages while he was employed by the complainant company and such deduction was applied towards restitution for the goods that he stole in this matter. Counsel therefore submits the fact of that restitution must be taken into consideration when the court comes to assess a suitable penalty for this defendant. I agree with counsel for the defendant that restitution in any case of theft is an important matter to be taken into consideration in sentencing.

The difficulty in this case is that the advice put forward by counsel is contradicted by what is in the defendants probation office pre-sentence report. Page three thereof refers to a conversation held between the probation office and the manager of the complainant company and reports that the manager advised them that the defendant did not make any repayments of the amounts owing to the company and furthermore that the company is not interested in restitution in this matter. If that advice is in fact the case then restitution should be ignored. As explained to counsel rather than adjourning the matter once again to clarify this issue I propose to deal with it now in his sentencing.

In looking at the circumstances of your case Iosefa, there are no factors justifying departure from the usual sentencing policy of the court in relation to this theft as a servant you committed. This was a systematic theft of a large amount of goods by you as a trusted employee of the company. The quantity involved is considerable and it is not a one-off theft, there are 3 counts before the court. If restitution of any of this has not been made then this amount represents a total loss to the company.

In respect of the primary charge of S2012/10 the theft of the $8,191.33, taking all factors into consideration including what your lawyer has said and the fact that you are a first offender who has pleaded guilty, you will be convicted on that charge and sentenced to 16 months in prison. That is a sentence on the basis that no restitution of any kind has been made. If however Iosefa restitution can be established as put forward by your counsel in that the sum of $3,580.10 was deducted from your wages by the complainant company and applied towards the missing goods, if that is established then I order that the 16 month imprisonment term be reduced to one of 10 months imprisonment. I leave this matter to your counsel and the police together with the probation office to resolve and to ultimately advise the court as to the position so that your records can be properly noted.

In respect of the two lesser charges of S2017/10 and S2016/10, you will convicted and on each charge sentenced to 1 month in prison but those terms are to be concurrent to your term on the primary charge.

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