Police v Nofoaiga [2011] WSSC 94 (5 August 2011)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

KAMUTA NOFOAIGA aka SESILI NOFOAIGA
male of Vaitele-fou and Savaia
Defendant

Counsel: Ms. Tanya Toailoa for prosecution
Ms. Tima Leavai for defendant

Hearing: 9 June 2011
Submissions: 18 July 2011
Sentence: 5 August 2011

SENTENCE

1. The defendant appears for sentence on 5 counts of theft as a servant to which he originally pleaded not guilty to.
   
2. During the course of the hearing and after the prosecution has called all its witnesses the defendant changed his plea from not guilty to guilty. The evidence disclosed between March and July 2010 the defendant stole on five occasions reels of wire from his employer Yazaki EDS and sold them to either Pacific Recycle or Demolition.
   
3. These copper wires were removed by the defendant from the warehouse and placed them inside the rubbish bins closed to the warehouse. At the end of his shift the defendant and his co-defendant removed the copper wires from the rubbish and threw them over the fence. After stripping the covers of those wires the defendants took the copper wire and sold them to the two companies I have earlier refer to.
   
4. The defendant's co-accused pleaded guilty to his offending and is serving 12 months imprisonment.
   
5. Now the aggravating factors of the offending are that these offences were pre-conceived by him and his co-offender. Despite what the defendant told the probation service I am convinced that these offences were initiated by the defendant because they would not have been committed if the defendant have not moved the copper wires from the store room to the rubbish bins. I say that because the co-offender who was a security officer had no access to the warehouse where the defendant obtained the copper wires.
   
6. There has been a serious breached of trust by the defendant in committing these offences especially so when he has been working for the same company for 7 years before the commission of the offence.
   
7. The purpose of the sentence to be imposed is to deter the defendant and others who may be minded of committing the same offence. The only mitigating factor for the defendant is that he is a first offender. I do not find his late guilty plea to be a mitigating factor because he has already put the prosecution through calling witnesses. I see no reason why his sentence should be different from the one imposed on his co-offender.
   
8. Before passing sentence I did ask the prosecution to obtain from the police why the receivers of the stolen goods have not been charged. I have now received the written memorandum to explain why those two companies have not been charged. One of the reasons is that the records of both companies were searched and it does not match the explanation given by the defendant. Well obviously those two companies are not going to keep records, which will subject them to police prosecution. They will not make correct entries in their books from which the police can initiate prosecution; they have outwitted and outthink the police. I am quite certain that there are other reasons why the police have not charged these people. The defendant and others will continue to steal if they know that there is a ready market out there to receive the stolen goods.
   
9. The sad thing about is that while a small thief goes to jail the bigger criminal making the big buck out of these crimes goes free.
   
10. For these offending the defendant is sentenced to 12 months imprisonment. The time that he has served in custody will be deducted from the term of imprisonment.
    

_________________

JUSTICE VAAI