Police v Isaraelu [2012] WSSC 63 (6 August 2012)

SUPREME COURT OF SAMOA

Police v Isaraelu [2012] WSSC 63

Case name: Police v Isaraelu

Citation: [2012] WSSC 63

Decision date: 06 August 2012

Parties: POLICE v EMILY ISARAELU, female of Vaiusu-uta

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution

Ms R V Papalii for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

EMILY ISARAELU, female of Vaiusu-uta.
Defendant

Counsel: Ms L Taimalelagi for prosecution

Ms R V Papalii for defendant

Sentence: 06 August 2012

SENTENCE

This is also a theft as a servant case. The defendant is a 22 year old single female. Her history before the court shows she has received a good education after which she joined the workforce to work and support her family. She joined BOC gases in 2008 and after 2 years had worked her way up to the position of Accounts Clerk Receivables. As such she was responsible for debt collections, customer accounts, daily reconciliations and banking of company monies.

The police summary of facts indicates that these charges arise out of monies she collected in respect of two of the company delivery trucks and the company Gas and Gear Shop.

On 18 separate occasions during the months of April and May 2012 she took cash collected from customers. She applied this for her own personal use and then used cheques from customers to cover up her thefts. This course of offending involved also falsifying company records. As a result she has been charged with and pleaded guilty to 18 counts of theft as a servant. The prosecution and defence agree that the total amount involved is $5020.00.

The defendants family have made full restitution of this money to BOC Gases. As well the defendant has personally apologized to the company manager who in a letter dated 27 July 2012 to the court said the following:

“Miss Isaraelu apologized for her actions and showed extreme remorse during her apology. She also expressed her realization that her actions have affected not only BOC Samoa Limited but also her family and herself.”

And the manager said he has accepted the defendants apology and was extremely pleased to see her and her family make an effort to meet and discuss the matter in person. The letter goes on to confirm payment of the sum of $5020 as restitution in this matter.

This is a case therefore of a defendant who as a first offender has pleaded guilty to 18 counts of theft as a servant. Each count carries a maximum of 7 years in prison. As will be apparent from previous decisions of this court the policy that is applied normally in theft as a servant cases is to invariably impose terms of imprisonment. Because of the seriousness of such offending and because of its prevalence in our community. It is so prevalent that this court has likened such offending in the past to a tsunami of criminal conduct.

It is always sad to see bright and educated young women come before the court on such matters. This defendant is not the first and I am sure would not be the last to appear on such matters. The court must remain consistent in its policy in relation to this particular kind of offending.

Defendants counsel has strongly argued that in this case a different approach should be taken and a non-custodial penalty should be imposed. And has urged the court to invoke its powers under the Community Justice Sentencing Act 2008. I have considered carefully the case of this young lady and what her lawyer has said on her behalf. In particular the circumstances of her offending.

Unfortunately for her this is not a one-off incident. The offending represents a pattern of sustained dishonesty that was carried out over a two month period. It was conduct engaged in by the defendant not once or twice or three times but eighteen times.

It also cannot be overlooked that the offending involved falsification of records to cover the defendants activities. Furthermore that she was entrusted by her employer to perform her duties properly and with honesty a trust which she has broken. Because of these matters I therefore cannot accede to counsels request. And there are no exceptional circumstances that would justify a departure from the normal sentencing policy for these matters. Restitution by itself in not such a factor.

Prosecution in this case are seeking a 12 month imprisonment penalty be imposed by the court. I agree that accurately reflects the aggravating and mitigating factors of this offending. But in recognition of the fact that your family has made full restitution of the monies you stole from your employer I will make a deduction of 50% of that sentence. The deduction is in my view warranted because it represents a significant sum.

In respect of these matters Emily you will be convicted in relation to each charge of theft as a servant and sentenced to 6 months imprisonment on each charge but all your terms are to be served concurrently.

JUSTICE NELSON