Police v Tolovaa [2012] WSSC 119 (17 September 2012)

SUPREME COURT OF SAMOA

Police v Tolovaa [2012] WSSC 119

Case name: Police v Peniamina Faagai Tolovaa

Citation: [2012] WSSC 119

Decision date: 17 September 2012

Parties: POLICE (prosecution) and PENIAMINA FAAGAI TOLOVAA male of Alafua

Hearing date(s): 27 August 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
P Chang for prosecution
K Ainu’u for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss.85, 86(g)

Cases cited:
Police v Ah Sue [2001] WSSC 15
Police v Samu [2008] WSSC 2
Police v To’omalatai [1999] WSSC 3
Police v Uele
Police v McCarthy (21 August 2010)
Police v Reti (20 December 2010)
Police v Rimoni (1 August 2011)
Police v Satoa (21 May 2012)

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
PENIAMINA FAAGAI TOLOVAA male of Alafua
Defendant

Counsel: P Chang for prosecution

K Ainu’u for defendant

Hearing: 27 August 2012

Sentence: 17 September 2012

Charge: Theft As a Servant

SENTENCE OF SLICER J

1. Peniamina Tolovaa (“Tolovaa”) has pleaded guilty to 58 charges of Theft As a Servant, contrary to the Crimes Ordinance 1961, sections 85, 86(g). He was an employee of the Westpac Bank Limited (“the Bank”) and the amount stolen was $13,730, committed over the period from 2009 until 2011. He was initially charged with 79 charges. Before the hearing, on 23 January 2012 the prosecution advised that it would withdraw 12 Informations.
2. The case was listed as a defendant hearing by the learned Chief Justice on 23 August 2012 for hearing on 27 August. On 24 August, the prosecution advised the Registrar that the defendant had indicated that he would plead guilty to 58 of the original 78 charges and it would withdraw the remaining 21 charges.
3. The defendant is entitled to the benefit of his plea but not to an early plea. He made no admissions in his caution statement made on 29 November 2011.
4. Tolovaa had been employed by the Bank since 1989. At the time of the offences, he was employed in the retail section of the Bank.
5. The method used by the offender involved the dealing with bank cheques. The client would provide the money which would be checked by a supervisor and the cheque prepared. The bank cheque would be presented to the supervisor and then countersigned by another supervisor and handed to the client.
6. The documentation would then be presented to Tolovaa who was acting as team leader of the section. He was then responsible for the delivery of the cash or client cheque to the teller. One method used was the failure to stamp and number the documentation.
7. The bank cheque docket was retained by the defendant together with the payment which would be balanced against the bank cheque register by the defendant who would deliver the documentation to a bank teller for processing into the bank system.
8. An attempted reconciliation revealed that some 58 cheques were received but not handed to or processed by the tellers.
9. The offences were serious breaches of trust given the position of the defendant.
10. The defendant manipulated the system in a way which allowed him to make false entries and receive the amounts of cash left over through his manipulation. Many of the sums stolen in this way were for $190.00 showing the use of a standard method of defalcation. The sum of $190.00 was the usual fee required by New Zealand immigration for visa registration and the like.
11. The prosecution submits as a commencing point of not less than 18 months imprisonment. It relies on cases such as:
    • - Ah Sue [2001] WSSC 15, involving $9,000 resulting in a sentence of 18 months;
    • - Samu [2008] WSSC 2, where the amount was $22,700 and a 2 year sentence;
    • - To’omalatai [1999] WSSC 3, $15,800 and an 18 months sentence;
    • - Uele, 11 counts amounting to $14,316 and a 2 year sentence; and
    • - more recently, McCarthy (21 August 2010), Reti (20 December 2010), Rimoni (1 August 2011) and Satoa (21 May 2012), which involved a range of sentences between 12 months and 30 months (Satoa involved theft and false accounting).
12. But those sentences were the ones actually imposed with allowance made for mitigating matters. They do not represent a commencing point.
13. The submission of the prosecution here suggests an actual end sentence rather than a commencing point.
14. The Court will adopt as a commencing point a period of 3 years, before taking into account mitigating matters. There has been no restitution although the defendant has, through counsel, promised to do so.
15. He has no previous convictions.
16. The pre sentence report states Peniamina is aged 41, is the youngest of 12 children and completed his education at Waitakere College in 1988. He returned to Samoa in 1989 and commenced working as a bank clerk reaching the position as a team leader for retail banking, a position he held for some 10 years.
17. He is single and resides with his family. Following his dismissal by Westpac Bank Limited, he obtained employment with an investment company, receiving a weekly salary of $400 which is used as a support for his family.
18. He is regarded as a trusted and loving member of his family.
19. The conduct was prolonged and a grave breach of trust.
20. The defendant advances as mitigating matters:
    • - his plea of guilty;
    • - remorse; and
    • - he is a first offender.
21. The commencing point of 3 years will be reduced to 18 months.

ORDERS:

(1) Peniamina Tolovaa is convicted of 58 charges of Theft As a Servant, namely Informations 47 – 50/12, 52 – 56/12, 66 – 72/12, 75/12, 257/12, 2594/11, 2775 – 2807/11, 2809 – 2812/11, 2814 – 2817/11, 2819 – 2829/11 and 2831 – 2837/11.
(2) The remaining Informations are dismissed.
(3) Peniamina Tolovaa is sentenced to a term of imprisonment for a period of 18 months, such sentence to commence as and from 17 September 2012.

..............................

(JUSTICE SLICER)