Police v Samau [2011] WSSC 67 (4 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TAUMAFAI SAMAU
male of Leone and Lefagaoalii and VISESIO ASO male of Matautu-uta and Laulii
Defendant

Counsels: Ms T Toailoa for prosecution
Defendant unrepresented

Sentence: 04 April 2011

SENTENCE

The first defendant in this case Taumafai Samau was at the relevant time an employee of the complainant company a Supermarket with a branch at Matautu-uta. This offending occurred because he procured theft by the second defendant of money belonging to his employer. He thus appears for sentence on a charge of theft as a servant of $11,910.05 being property of his employer company. The eleven thousand odd tala being the amount of money stolen by the second defendant.

The first defendant is a 28 years of age of Leone and was at the time employed as a delivery man by the complainant company. The second defendant was not employed by the complainant company and appears to be the first defendants friend. He is a 21 year old male of Matautu-uta but originally from Laulii and Falelatai. He is the one who actually did the stealing of the money from the company supermarket. He therefore appears for sentence on one charge of burglary or breaking and entering the companys premises and one charge of theft of the $11,910 odd tala.

The second amended summary of facts upon which the defendants are being sentenced relates that on Sunday 30 January 2011 the supermarket had collected a total of $11,910.05 for daily sales which money was locked in the companys safe. Only the head cashier of the supermarket had keys to the safe. The first defendant however as an employee of the company knew there was money in the safe and was familiar with the normal procedures of the company. Using this knowledge he procured the second defendant to break into the safe by recruiting his help to execute the break in, by explaining to the second defendant where in the supermarket the monies were kept and how he could break into the supermarket after hours. He also aided the second defendant by transporting and driving the second defendant to the supermarket to carry out the break in. And by giving the second defendant the tools necessary for entry into the supermarket and the safe. These tools being a wire cutter, screwdriver and a lug wrench or a "talapa'u".

The summary which the defendants have admitted also states that he gave the second defendant a mobile phone and that while the second defendant was inside the supermarket carrying out the break in activities he was outside keeping watch via the mobile phone. When the break in was completed the second defendant joined him in the vehicle and he drove them away from the scene of the crime. The summary states that he picked him up from behind the Mormon Church located near the supermarket and drove to the government building at the Eleele-fou where the two men together with two other accomplices divided the money that had been stolen. Taumafai indicated to the court that he only received $800 from this theft but I give that little weight because he can say anything he likes as to how much he received, no one really knows. What is however clear is that this was a well planned, well organized and relatively sophisticated break in and theft from a local supermarkets safe.

The maximum penalty for theft as a servant is 7 years in prison and for breaking and entering 5 years and theft 5 years. In respect of the offence of theft as a servant the court has stated in case before like Pol v Valaauina [2009] WSSC 21 that the attitude of the system of law in this country to theft as a servant should be well known to everyone. Because of the seriousness and prevalence of such offending in our community usually a penalty of imprisonment must be imposed. The penalty must not only serve to deter the particular offender but must also send out a message to other people who may be tempted to engage in this sort of break in and stealing money from a company safe in the middle of the night.

Here the first defendant played a significant role in organizing and carrying out the offending. He was an employee of the company and was in breach of the trust given to him by the company in giving inside information to a third party in order to enable the third party to commit theft of company funds. Not only that he supplied the equipment to enable the break in and theft to occur and stood guard outside the company premises while it was occurring. He was the older of the two offenders and he probably thought that if anyone was to be caught it would be the younger offender inside the premises and not him who was outside. The case only goes to show that there is no honour amongst thieves.

There is no question Taumafai that the seriousness of your offending requires a significant imprisonment penalty. The prosecution have sought an imprisonment term of no less than 3 years be imposed. I agree with them, I think that is an appropriate term considering the circumstances of your offence and sends the right message out to the community and to anyone thinking of doing this. For this matter Taumafai you will be convicted and sentenced to 3 years in prison but your remand in custody time awaiting sentence is to be deducted.

Visesio you face lesser charges but your role in this matter is equally significant. You were the one who actually carried out the break in and stealing of the money. For the purposes of the record you will be treated as a first offender even though you have a previous conviction because your previous conviction was for a trivial matter and was for a different kind of offence. I also consider Visesio that to some extent you were probably led into this offending by your older co-offender who was the employee of the company concerned. In respect of this matter therefore it is appropriate you receive a lesser penalty. You will be convicted and sentenced on each of the burglary and theft charges to two years in prison, concurrent terms and your remand in custody time is to be deducted from that sentence.

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