Police v Vaovasa [2011] WSSC 161 (5 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

VILIAMU VAOVASA male of Malie
Defendant

Counsels: Ms R Titi for prosecution
Mr D Clarke for defendant

Sentence: 05 December 2011

SENTENCE

There are two charges that this defendant appears for sentence up on: first is S2280/09 that on the 13 September 2008 while a servant of Tradepac Marketing Limited he stole $1,007.60 from his employer thereby committing the crime of theft as a servant. The second charge S2279/09 states that on the 04 September 2008 while working for the same employer the defendant stole $2,400 being monies belonging to his employer.

The police summary of facts state that the defendant is a 36 year old male of Malie, married but with no children. At the relevant time he was employed by Tradepac as a sales representative. As such he was assigned a delivery truck and was responsible for the sale and delivery of goods using the truck as well as collection of sale monies. Charges arise out of fact that on two occasions the defendant received sale funds which he kept for his own personal use. The total amount involved in these thefts is $3,407.60. The complainant company has now confirmed that no restitution of this money has been made. And that the payments made by the defendant as claimed as restitution were in respect of other unaccounted for monies. The company has also indicated that they refused to accept the defendants apology as it was only tendered recently. In fact it seems to have been tendered the date the defendant was due to be sentenced for these charges. Apologies tendered on the day of judgment do little for a defendant.

Each of these two charges carries a 7 year maximum penalty at law. Theft as a servant is not an uncommon offence in this country. We see far too much of it in the courts. The courts policy towards such offending is well documented. As stated in Police v Valaauina [2009] WSSC 21 because of the seriousness and prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other type of treatment. The reason for such imprisonment penalties is to not only deter the offender himself or herself from such future behaviour but also others who may be tempted to follow his or her example.

I have reviewed your case carefully Viliamu there are no exceptional circumstances present. The normal sentencing policy for theft as a servant must be applied. But I do take into account what your lawyer has submitted in mitigation of penalty namely your guilty plea which was entered when the charges were finalized by the prosecution, the fact that you are a first offender with a good previous background, the fact that you have previous good character and service to your family and village as well as your church. I also agree with your lawyer that given the amount involved in this offending a short term of imprisonment is more appropriate for your matter. Had there been full restitution of the amounts involved that period would have been even shorter but the correspondence that has been tendered indicates otherwise.

Taking all matter into consideration Viliamu for each of these charges you will be convicted and sentenced to 9 months in prison on each charge, terms to be served concurrent.

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