Police v Faatoia [2011] WSSC 7 (31 January 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

1. FAAFETAI FAATOIA female of Malifa.
2. MARIA ANA PALETASALA LEMANA female of Vaimea.
Defendants

Counsel: Ms F E Niumata for prosecution
Ms T Atoa for 1st defendant
Ms T Toailoa (on behalf of Ms RV Papalii) for 2nd defendant

Sentence: 31 January 2011

SENTENCE

These defendants were at all material times employees of the Samoa Housing Corporation and they appear today for sentence on charges of theft as servants of that corporation. The defendant Faafetai Faatoia faces seven counts of theft as a servant. The defendant Maria Ana Paletasala faces eleven counts of theft as a servant.

In respect of the defendant Faafetai she is a 24 year old married female of Malifa and she was at the time employed as a cashier. Her duties were the normal duties of a cashier primarily to receive cash and payments from clients of the corporation and attend to reconciliations and banking in respect of thoe monies. The police summary of facts indicates that what this defendant did was not to bank all the money that was collected. But to keep and then share it with her co-defendant who was a senior finance officer of the corporation. The amounts involved ranged from the lowest of $30.00 to the highest of $14,000.00 odd tala for a one month period. And the police summary indicates the total amount involved in respect of this defendant was $20,005.00 stolen over a 12 month period.

In respect of her co-defendant the police summary relates that she is likewise also married and is 32 years old from the village of Vaimea. At the time of this offending she held the more senior position of senior finance officer and she too was involved in misappropriation of monies from the corporation. The summary and charges refer to shortages ranging from the lowest of $547.53 to the highest of $9,978.69. The total amount involved and attributed to her was $43,322.59 spread over a 10 month period.

Both the defendants are first offenders and I am satisfied that they pleaded guilty when the prosecution eventually finalised its charges and are therefore entitled to full credit for their guilty pleas. Again as stated in previous sentencings, theft as a servant is among the most prevalent offences in this community. And the courts sentencing policy is to impose a penalty of imprisonment unless there are exceptional circumstances requiring some other penalty. Prosecution in their submission have quoted a number of similar cases for example Pol v Amani [2008] WSSC 26 a theft of $32,000 resulting in a 2 year prison term, Pol v Betham [2009] WSSC 66 a case involving theft by a servant of $31,000 odd tala also resulting in a two year prison term. In the case of Pol v Samu [2008] WSSC 2 where some $22,000 odd tala was involved a penalty of 2 years was imposed by the Honourable Chief Justice. Comparable cases that were heard earlier this afternoon resulted in penalties of 2 years 4 months in prison.

The thefts involved in these cases are serious. In terms of its criminality and the gross breach of trust involved as well as in the scale of offending and involving as it does multiple theft as a servant charges. There is no question in my view that it requires penalties of imprisonment but the penalty should reflect the different circumstances of each of the two defendants. The second matter the penalty should reflect for this case is the fact that full restitution of the amounts in the charges has been made. In the case of Faafetai the full $20,000 has been repaid to the Housing Corporation and in the case of Ana Maria the full amount of forty three odd thousand involved in her charges has also been repaid to the Samoa Housing Corporation. Defendants have also made personal apologies to the Chief Executive Officer of the Corporation and this is all confirmed in writing to the court by the said chief executive officer.

There is no doubt that this is a significant restitution to an organization such as the Samoa Housing Corporation which is funded by the tax payer and which serves the needs of the general public. As both counsel have referred to in their written submissions to the court the impact of the restitution upon the corporation cannot be understated and has resulted in a net nil financial loss to the corporation. And no doubt because of this the corporation has petitioned the court for leniency and to spare these defendants imprisonment. This petition however cannot be granted.

As a matter of principle restitution while being a factor that must be taken into consideration cannot operate to save offenders from prison if prison is the appropriate sentence for their offending. The reason for that is restitution comes after the fact and does not operate to absolve the commission of a crime that has been committed. It only serves to mitigate the punishment for the crime that has been committed. Furthermore it would be quite wrong for offenders to be able to avoid the consequences of the criminal law by simply repaying money that they deliberately and calculatingly stole from an employer. Because this would only serve to reward those who can afford to repay and would leave those who cannot with going to prison. It would also amount to a drastic departure from the previous sentencing policy of this court in other cases. But as stated it is a factor to be considered and particularly in this case where the amount involved and the effect of its repayment to the complainant organization is substantial. It is not however of itself an exceptional factor or here considered together with the other circumstances be capable of amounting in total to exceptional factors that would justify a departure from the courts normal sentencing policy.

I believe this approach to be consistent with the guideline set down by the Court of Appeal in Chong Wong v Police [1991] WSCA 3; [1980-1993] WSLR 451 referred to by counsel in their submission the relevant of passage from which is as follows:

"In this context it is necessary to consider not only the aims but also the objectives associated with the sentencing process. The primary function, of course, is to protect the community while at the same time acting with an appropriate measure of mercy that the circumstances would justify. Just as important, however, in this sentencing process is the applicability of those principles associated with retribution relative to the gravity of the criminal conduct; the degree of culpability of the appellant; the impact of deterrence both on the appellant and as well on the community; and finally whether considerations of reparation and rehabilitation should be factors to be applied in the sentencing process."

The penalty therefore for this matter is as follows: in respect firstly of the defendant Faafetai who held the position of cashier in the complainant organization. For a first offender who pleads guilty to thefts of similar amounts the penalties in other cases have been around 18 months to 2 years in prison. I will take the lower level of 18 months considering the circumstances of this matter. That would normally have been the penalty of the court but I reduce that by 50 % to 9 months to take into account the large restitution that has been made. This defendant is therefore convicted and sentenced to 9 months in prison.

In respect of the co-defendant Maria Ana she held a more senior position and was a supervisor. Her theft involved larger amounts and a larger breach of trust and she faces a larger number of charges compared to her co-defendant. A penalty of around 2½ years in prison would have been appropriate in the normal course of events for your offending Maria but likewise to take account of the significant restitution that has been made I reduce that by half to 1¼ years in prison. In the exercise of general leniency I round that off to 12 months in prison for this matter, you are convicted and sentenced to 12 months in prison.

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