Police v Falaniko [2011] WSSC 28 (28 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IMELETA EASTER FALANIKO
female of Moamoa Faleasiu.
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Ms T Atoa for defendant

Sentence: 28 February 2011

SENTENCE

The defendant appears for sentence on a charge that between 01 April and 29 October 2010 while a servant of the Samoa Commercial Bank she did steal $18,100.00 in money the property of her employer. The police summary of facts state that she is 26 years old, single and a female from the villages of Moamoa and Faleasiu and that she was employed at the bank as an international teller. At the end of each daily shift she was supposed to hand over her daily cash takings to her supervisor to verify. However on occasions during the period in question the defendant removed amounts of cash from her daily cash takings without the knowledge and authorization of the supervisor or her employer. By the 29 of October 2010 the monies removed by the defendant had accumulated to the sum in the charge of $18,100.00. As a result of all this she has been charged and pleaded guilty to the charge of theft as a servant which carries a 7 year maximum penalty at law.

The courts approach to theft as a servant cases is well documented from previous decisions and should be well known to all by now. Because of the seriousness and prevalence of this sort of offending usually a penalty of imprisonment is imposed. As stated in Police v Valaauina [2009] WSSC 21 the only time it is not imposed is if there are exceptional circumstances requiring some other form of treatment for the offence. The reason for such an approach is not only to deter the offender himself or herself from such future behaviour but also others who may be tempted to follow his or her example. Theft by servants of amounts in the 10 to 20 thousand tala bracket usually attracts all things being equal penalties in the 18 month to 2½ year range. That is because the offending usually involves like this case a substantial breach of the trust afforded to a worker by his or her employer. Here the defendant was an international teller and as such handled large cash transactions on a daily basis on behalf of her employer. That is a large responsibility.

The summary of facts indicates that she tried to cover up her thefts when she was close to being discovered. It is also significant that this is not one-off offending but the circumstance shows it to be offending that occurred over a 6 month period of time. In the defendants favour is the fact that she is a first offender, her guilty plea which has saved the courts time and resources, her expression of remorse and apology to the managing director of the complainant bank but not the issue of financial hardship as argued by her counsel. Neither is the Police v Thomas Rudnick (unreported) 25 May 2010 case a comparable situation to the present one because different circumstances prevailed there.

You are not the first young lady to stand in that dock and sadly probably not the last facing this sort of charge. But I have looked at your case carefully and there is no reason to depart from the normal policy of the court. Considering all the circumstances of your case a 2 year penalty of imprisonment is the appropriate penalty to impose. However I note that there has been full restitution made in this matter as confirmed by a letter from the complainant bank dated 17 December 2010 to the police. That restitution should be given some weight by the court.

The court has stated on previous occasions that restitution does not save a defendant from a penalty of imprisonment, if imprisonment is required by the circumstances of the offence. Because to follow a different course of action would mean that employees can steal from their employers, pay it back and then come to court and say we should be let off because we have paid the money back. That would be a wrong message to send to the community and there will be little deterrent value in such an approach. So while restitution does not save you from the penalty of imprisonment Imeleta it still is relevant to the sentence of the court. And I note that the amount that has been restituted is a large amount.

Accordingly the court reduces your penalty by half. You will be convicted and ordered to serve 12 months in prison for this offence.

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