Police v Fareed [2012] WSSC 53 (30 April 2012)

Supreme Court of Samoa

Police v Fareed [2012] WSSC 53

Case name: Police v Fareed

Citation: [2012] WSSC 53

Decision date: 30 April 2012

Parties:

Police and Arshed Fareed, male of Pakistan and Fugalei.

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution

S Leung Wai for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Miti

Police v Faiga [2007] WSSC 43

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Informant

AND:

ARSHED FAREED male of Pakistan and Fugalei.

Defendant

Counsel: Ms L Taimalelagi for prosecution

Mr S Leung Wai for defendant

Sentence: 30 April 2012

SENTENCE

Alnima Motos Limited was a Samoan company formed on 19 August 2008 by a group of Pakistani businessmen residing overseas to supply and sell right hand drive vehicles. The defendant who is also a Pakistani was employed as the in-country manager whose responsibility it was to oversee and run the business on behalf of the absentee owners who periodically visited Samoa. The company operated from rental premises at Lepea and judging by the turnover of stock, it was doing well. Without the knowledge of the absentee owners of Alnima Motors Limited the defendant on 04 June 2009 in partnership with local accountant Laulu Dan Stanley incorporated a rival car dealership called Singapore Motors Limited.

Singapore Motors operated from premises at Savalalo and later from the Elava Motel site at Fugalei. From that point on vehicles began to be removed from the Alnima Lepea yard and sold from the Singapore Motors premises as Singapore Motors stock. The defendant also wound down his involvement with the Lepea car yard and spent most of his time at the Singapore Motors yard. But according to company records he continued to draw his salary from Alnima until at least October 2009. And as noted in the courts decision in this case he continued to run and operate Alnima as before making sales, dealing with clients, negotiating payments and payment terms, ordering and authorizing payments for shipments, clearing and uplifting car shipments and so forth. As late as 29 December 2009 he was signing company cheques for substantial amounts. For example a payment that date of $58,314.14 to the Westpac Bank for a shipment of vehicles.

It seem clear from the evidence the court heard that the defendant was having his cake and eating it too. While employed by Alnima he was selling vehicles paid for by Alnima as stock of the rival Singapore Motors. And handing over the proceeds of sale to Singapore Motors Limited which was the new venture he was involved in.

When the Alnima owners visited in February 2010 they were shocked to find that the defendant had closed the Lepea yard and was running the Singapore Motors operation. He had also without their knowledge cancelled his work permit from the Samoa Immigration authorities to be employed by Alnima and substituted it with a new work permit allowing him to be employed by the new business venture Singapore Motors Limited. He represented to the Immigration authorities that there were new investors involved in Singapore Motors Limited.

By decision dated 10 February 2012 this court found the defendant guilty of theft as a servant of 25 vehicles from Alnima Motors Limited over the period June 2009 to February 2010. The vehicles had an average value of around $20,000 and in total were valued at $512,000. This was a large fraud and theft by any standard. In Police v Faiga [2007] WSSC 43 the court observed as follows;

"In assessing the severity of the conduct, the amount of money or value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued and the amount of restitution are important considerations. The degree of trust given to the defendant is a particularly important factor so that cases of employment in a position of financial trust are more seriously regarded than cases of employees who are not so employed but steal in the course of their employment. In cases of abuse of a position of trust, good character and an absence of prior convictions are typical and have little weight because of the expressed need for a general deterrent sentence.”

In that case a sentence of 4 years imprisonment for each of the 17 theft as a servant charges was imposed on a bank officer who misused his position of trust to steal over $100,000. A similar penalty of 4½ years was imposed in Police v Miti on a senior financial officer of the Ministry of Police who pleaded guilty to 97 counts theft as a servant of some $300-odd thousand tala from Ministry of Police over a two year period.

It will be seen from the many other decisions of this court that theft a servant invariably results in imprisonment sentences particularly where the offending involves a grave breach of financial trust, multiple incidents of offending, substantial sums and premeditated acts of dishonesty. Factors which are all present in the instant case.

The prosecution in this case have sought that the court impose a 6 year prison term. However in all the circumstances I do not consider that justifiable. But this was a systematic organized fraud by the most senior in-country officer of Alnima Motors Limited. The degree of trust placed on Mr Fareed by his employers was the highest. In this country he sat at the top of the Alnima pyramid. His primary responsibility was to protect the business, that was what he was recruited for, that is what he was paid to do. If he indeed had any legitimate complaints against his absentee employers there were any number of ways he could have dealt with the matter. Not in the manner chosen by him.

A 6 year start point is appropriate considering all the circumstance of this offending. From that I deduct 6 months because the defendant is a first offender at least in this country where he has resided for the past 4 years. That leaves a balance of 5½ years. I recognize that the defendant because of his nationality and religious beliefs will suffer imprisonment more than a local offender. That entitles him in my view to an exercise of some leniency. 12 months for a local would probably seem twice as long for someone foreign to the country and this environment. In recognition of that fact I will shorten the defendants term by a further 12 months deduction that leaves a balance of 4½ years.

Restitution of 11 cars was referred to in defence counsels submissions but that was not brought out in the evidence at trial and no reference to this is contained in the documents before the court. I therefore must disregard that as a mitigating factor. And I note that the courts ruling at the trial was to dismiss those charges in respect of which theft was not established. Thus 6 of the 31 charges were dismissed leaving the 25 currently facing the defendant.

The defendants medical condition was also referred to by defence counsel in his written submissions. But diabetes is a treatable condition, the medical report attached to counsel submissions notes that. I am also conscious that the Prison Authorities generally are careful to provide prompt medical assistance to prisoners. This condition does not require any special allowance be made, no deduction should be made in that regard.

On each of these 25 charges Mr Fareed you will convicted and sentenced to 4½ years in prison but all terms will be served concurrently.

JUSTICE NELSON