IN THE SUPREME COURT OF SAMOA
Police v Eneliko [2012] WSSC 44

Case name: Police v Eneliko
Citation: [2012] WSSC 44
Decision date: 20 February 2012
Parties: Police and Pauline Eneliko
Hearing date(s): -
File number(s): -
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order:
Representation: 
Delma Niumata for prosecution
Accused in person 
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:

POLICE
Prosecution

PAULO aka PAULINE ENELIKO male of Faleasiu and Faleula 
Defendant

Counsel:	
Delma Niumata for prosecution
Unrepresented

Sentence:	20 February 2012

S  E  N  T  E  N  C  E 

1.	Prior to his being employed as a petrol pump attendant, the defendant was living with the petrol pump proprietors (the complainants) who had cared for and treated the defendant as their own son.  He was then assigned to work at the petrol pump to attend to refilling and receipting cash sales.
2.	On Monday 28th November 2011 he and others worked the early morning shift commencing at 6 o’clock.  By 10 o’clock the fuel sales collected amounting to $1,869 was taken by the defendant to town for banking.  He was not authorized to do any banking.  He nonetheless told his co-workers that his instructions were to bank the money.
3.	Instead of banking the money the defendant went on a shopping spree including dying his hair and renting a motel room.  He then proceeded to the Mulifanua wharf the following day where he bought cannabis before he caught the ferry to Savaii.
4.	The petrol pump supervisor who was informed by the defendant’s co-workers in the meantime had advised the complainants who in turn alerted the police.
5.	The defendant was arrested on arrival at the Salelologa wharf and was promptly returned to Apia.  He admitted to stealing and to possession of narcotics.
6.	He has been in custody since the 30th November 2011.  On his first court appearance on the 12th December 2011 he pleaded guilty to both charges of theft as a servant and for possession of narcotics.  He has been remanded in custody since for a probation report and sentence.  He was released on bail on the 3rd February 2012 to allow the prosecution to inquire whether monies were recovered by the police.
7.	He is 25 years of age and is a first offender.  He is also known amongst his peers as Pauline.
8.	According to the probation report, the complainant informed the probation service that some of the money stolen was recovered by the police.  The cash retrieved by the police is not stated in the summary of facts and the prosecution sentencing memorandum.
9.	Indeed neither the summary of facts nor the sentencing memorandum refer to any monies recovered by the police despite the fact that summary of facts specifically says the defendant was bodily searched inside the ferry on arrival at Savaii and drugs found on him.  It is the probation report which refers to a statement by the complainants that monies were recovered by the police from the defendant.
10.	Drugs found on the defendant are estimated to produce fifteen (15) marijuana joints.
11.	Sentencing was deferred to enable counsel for the prosecution to inquire into any items recovered by the police.  It has been confirmed that $130 and other items were recovered.
The defendant
12.	He was born in 1987, attended school until year 12.  It appears he left home and lived elsewhere and finally lived with the complainants who took him as one of their own.
13.	The defendant has apologized to the complainants.  In their victim impact statement, the victims state in final paragraph:
“Paulo is a good person and his family depends on him for food and money.  We felt sorry for him by the time we stay as a family, and he was sorry too, he apologises to us at the police station before he was taken to prison and also on the phone by the time he found that he was lonely and fell left out in prison, we forgive him, and we want him to learn his lesson, because we see him as one of our son in our family, but that depends on the Supreme Court decisions and your policies.”
14.	The defendant is truly remorseful.
15.	He told the probation service that on the morning he committed the offence some youths who came on a bus to the petrol station gave him a joint which they shared.  He felt weird and awkward.  He hopped on the same bus with all the money he collected at that time and went on a shopping spree in Apia.
16.	If that is true it means it was the first time the defendant had tasted narcotics.  There is nothing before the court to suggest the defendant had prior contact with drugs.
Submissions by the prosecution
17.	For the theft as a servant charge the prosecution seeks a term of imprisonment of not less than 9 months and for possession a 6 months custodial sentence is sought.
18.	Aggravating features highlighted in the theft charge include the breach of trust, the negative effect of the offence on the business community and the need for deterrence.
19.	For the possession charge the aggravating factors are the prevalence of the offence, the need for deterrence, the impact of the offence on the community.
Discussion
20.	Both charges are very serious and very prevalent in our community.  It is also true that deterrent sentences have always been imposed but it must also be said that the court cannot deliberately turn a blind eye to other factors such as rehabilitation when considering the appropriate sentence.  Imprisonment sentences were therefore not and will not automatically be imposed if the circumstances surrounding the offending does not warrant it.
21.	The degree of culpability involved in the theft as a servant charge is significantly less serious than most other cases which this court has dealt with which normally involved deception, premeditation, dishonestly and falsifications over a period of time.  Dishonestly by the defendant here is without doubt on the lower end of the scale.  His out of character offending can be described as simply stupid.  
22.	It was not difficult for the police to trace and apprehend the defendant.  He immediately admitted the offences of stealing and possession.  He also apologized to the complainants at the police station before he was placed in custody.  He also telephoned the complainants while he was in custody.
23.	The complainants have forgiven the defendant and they are prepared to re-employ him to pay back the money he has stolen.  They still treat him as one of their own and they have accepted the apology.  To repay the stolen money the defendant has agreed to resume work for the complainants.
24.	Restorative justice outweighs all other considerations.  The culpability or the aggravating and mitigating factors surrounding the offending by the defendant does not warrant a custodial sentence as suggested by the prosecution.
25.	In respect of the charge of possession, the defendant purchased the narcotics for his personal use.  The quantities of narcotics were minimal.  Again, contrary to the submissions by the prosecution, a custodial sentence is not warranted.
26.	For both offences the defendant is convicted and placed on probation for a period of 2 years on the following conditions:
(a)	he will live and reside as directed by the probation service.
(b)	he will resume to work for the complainants under the supervision of the probation service
(c)	part of his salary as determined by the Probation Service shall be deducted to compensate the complainants for the money stolen less the cash recovered and the value of the goods retrieved as determined by the probation service.
(d)	under the supervision of and through the probation service he will pay cost of prosecution of $600.

JUSTICE VAAI