Police v Stowers [2011] WSSC 23 (15 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

VASELISA STOWERS
female of Apia and Alafua.
Accused

Counsel: R Titi for prosecution
Accused in person

Sentence: 15 March 2011

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on two charges of forgery brought by the police under s.107 of the Crimes Ordinance 1961. The accused pleaded guilty to both charges at the earliest opportunity. The maximum penalty for forgery is 5 years imprisonment.
   
2. Normally, a charge of forgery when it is not accompanied by a charge of theft as a servant is preferred in the District Court. Perhaps it is because of the unprecedented nature of the forgeries in this case that the police decided to bring these charges before this Court. Whilst that is understandable, the normal practice is to prosecute charges of forgery unaccompanied by any charges of theft as a servant in the District Court which has jurisdiction to deal with them.
   

The offending

3. One of the two forgeries with which the accused is charged, namely, the forgery in 2004, was the subject of civil proceedings in this Court in 2010. Some of the circumstances which came up in the evidence in those civil proceedings are not mentioned in the summary of facts provided by the prosecution. To the extent that those circumstances are relevant in mitigation, I will refer to them in addition to what is set out in the summary of facts. I will also refer to some of the statements of fact in the pre-sentence report prepared by the probation service to show the circumstances the accused was in at the time she committed the forgery which occurred in 2004.
   
4. In 2002, the accused was about 36 years old. Her husband left her and their seven children for another woman. The accused then found employment as a housekeeper at a hotel. She had difficulties looking after and taking care of her children from her wages. She was financially hard-up. She then met a man who became a friend. In 2004, they were in a de facto relationship.
   
5. According to the summary of facts, on a date close to the end of 2004, the accused and her de facto partner went to the land registry office to search the title of some lands which belonged to one of the accused's relatives. This was actually a relative of the accused's husband who had separated from her.
   
6. At the land registry office, according to the summary of facts, the accused and her de facto partner searched the land register for details of the lands which belonged to the accused's relative. They found the said lands to be under the name of Theresa Taufau Stowers of Alafua. In actual fact, Theresa Taufau Stowers has been residing in New Zealand for a number of years. The papers for the said lands were then given to the accused's partner presumably by the accused or a staff member of the land registry office.
   
7. On 24 December 2004, the accused's partner called the accused for them to meet at the Ioane Viliamu Building at Tamaligi. When the accused arrived at the Ioane Viliamu Building, her partner told her to accompany him up to a lawyer's office. At the lawyer's office, the accused was given a file and was told to sign the papers inside the file. Those papers were actually a deed of conveyance and duplicates transferring the said lands from Theresa Taufau Stowers, the true owner, to the accused's partner. The accused then signed the name of Theresa Taufau Stowers on the deed of conveyance as if she was that person.
   
8. On another occasion in 2007 when the accused had just returned from New Zealand, she was again contacted by her partner for them to meet at the same lawyer's office at the Ioane Viliamu Building. When they met at the lawyer's office on 10 August 2007, the accused was given another deed of conveyance to sign. This deed of conveyance related to land under the name of Rosita Burke of Alafua another relative of the accused's husband. The accused then signed the name of Rosita Burke being fully aware that she is not that person. Apparently, this deed of conveyance also transferred the land of Rosita Burke to the accused's partner.
   
9. The areas of the lands involved in these fraudulent conveyances and their values are not evident from the summary of facts. Neither is any financial gain to the accused from those conveyances.
   
10. When the accused was interviewed by the police, she readily and fully admitted to her fraudulent actions.
    

The accused

11. As already mentioned, at the time of the first forgery in 2004 the accused's husband had left her and their seven children. She was financially hard-up even though she was employed as a housekeeper at a hotel. She must also have been under emotional stress due to the fact that her husband had left her for another woman.
    
12. The accused then met another man in 2002 and they entered into a de facto relationship in 2004 which was the year in which the accused forged the first deed of conveyance transferring lands which belonged to her relative Theresa Taufau Stowers to her partner. Evidently, the accused was in a vulnerable financial and emotional position and she might have been taken advantage of. However, this does note excuse the crime she committed.
    
13. It would also appear from the summary of facts and pre-sentence report that the accused was still in the same vulnerable position when she committed the second forgery in 2007.
    
14. As it appears from the pre-sentence report, the accused told the probation service that in the course of her de facto relationship with her partner, her partner persistently enquired about her family's lands at Alafua. Subsequently, they went and searched the land register which was followed by their visit to the lawyer's office where she forged a deed of conveyance transferring the lands of her relative Theresa Taufau Stowers to her partner. In similar circumstances, she again in 2007 forged another deed of conveyance transferring the land of her husband's relative Rosita Burke to her partner.
    
15. As it has also been mentioned earlier, the accused co-operated with the police when she was interviewed about this matter. She also expressed deep remorse to the probation service. A letter from a daughter of the said Theresa Taufau Stowers says that the accused had apologised on her hands and knees outside of the Courthouse to her mother begging forgiveness in front of a crowd of people and her mother forgave the accused.
    
16. The accused has also pleaded guilty at the earliest opportunity to the charges against her which shows genuine remorse and acceptance of responsibility for her wrongdoing.
    
17. The accused is also a first offender. She has agreed to give evidence for the police in the pending prosecution against her partner.
    

Impact of the offending on the victims

18. It is evident from the letter of the daughter of the said Theresa Taufau Stowers that her mother has suffered emotionally and psychologically as a result of being defrauded of her lands. A few weeks after their return to New Zealand after the civil case in 2010, her mother suffered a massive stroke which has robbed her of much of her memory and some of her ability to take care of herself.
    
19. Theresa Taufau Stowers and her family have also run up substantial costs for legal fees and for travel and accommodation expenses when they came from New Zealand to Samoa for the civil case last year.
    
20. It is not clear whether Theresa Taufau Stowers will recover her lands as the accused's partner had mortgaged the said lands to a bank to secure a loan.
    
21. The impact of the second forgery on the victim Rosita Burke is not evident from the summary of facts. But it is safe to assume that she, too, must have suffered emotionally and psychologically from the loss of her land. Whether she will be able to recover her land from the accused's partner is also not clear.
    

Aggravating factors

22. The nature of the forgeries in this case are without precedent in this country. This is the first time criminal charges have been laid by the police which involve the forgeries of deeds of conveyance to deprive the owners of their lands. It is the type of criminal conduct which will be strongly condemned in any civilized society. It was not one deed of conveyance that was forged by the accused depriving an owner of her lands but two deeds of conveyance depriving two owners of their lands.
    
23. The impact of the accused's offending on the victims, especially Theresa Taufau Stowers, is also an aggravating factor. So is the loss to both victims of their lands. Given the personal circumstances of the accused, it will be inappropriate to make an order of reparations against her.
    

Mitigating factors

24. In mitigation, the accused was evidently in a position of vulnerability at the times of both offences. She was financially hard-up, her husband had left her for another woman, and she was having an affair with her partner who apparently tempted her and was allegedly the real beneficiary from the conveyances for which the accused is now appearing for sentence.
    
25. I also accept that the accused is genuinely remorseful. She apologised unreservedly in public to the victim of the first forgery. She pleaded guilty at the earliest opportunity. She will also assist the police by agreeing to appear as a witness for the police in the prosecution of her partner. She is also a first offender.
    

The decision

26. In setting a starting point for sentence in this case, two considerations need to be borne in mind apart from the aggravating and mitigating factors relating to the offending. These two considerations are the relevant objectives of sentencing and the maximum penalty for forgery. The relevant sentencing objectives in this type of case are accountability, denunciation, and deterrence: see, for example, R v McKelvy [2006] NZHC 785, para [32] which was a case that involved real property fraud and forgery. Accountability in the sense of holding the accused accountable for the harm her offending has caused to the victims. Denunciation for the purpose of demonstrating society's disapprobation and condemnation of this type of offending. And deterrence to discourage the accused as well as potential offenders from committing the same or similar offences in the future. The maximum penalty for forgery, as already mentioned, is 5 years imprisonment.
    
27. Having regard to the aggravating and mitigating factors relating to the accused's offending as well as the relevant sentencing objectives and the maximum penalty for forgery, I will take 3½ years as the starting point for sentence for the first charge of forgery. From the accused's plea of guilty, I will give her credit for the full 1/3 discount. That leaves 2 years and 4 months.
    
28. For the other mitigating factors relating to the accused apart from her plea of guilty, I will deduct 1 year and 4 months. Here I have also decided to show mercy on the accused because of the position of vulnerability she was in at the times of these offences. That leaves one year. The accused is sentenced to one year imprisonment on the first charge of forgery.
    
29. For the second charge of forgery that occurred in 2007, I have also decided to impose a sentence of one year imprisonment. As the circumstances of the two forgeries are quite different involving two different victims and the first being committed in 2004 and the second in 2007, this is an appropriate case for making the sentences cumulative.
    
30. It follows that the accused is sentenced to one year imprisonment on each of the two charges against her. The sentences are to be cumulative which means the accused will serve a total of 2 years imprisonment.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, for prosecution