Police v Esau [2012] WSSC 92 (8 October 2012)

SUPREME COURT OF SAMOA

Police v Esau [2012] WSSC 92

Case name: Police v Esau

Citation: [2012] WSSC 92

Decision date: 08 October 2012

Parties:
THE POLICE v VILIAMU ESAU, male of Luatuanuu and Lotopa

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
Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Valaauina [2009] WSSC 21

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

VILIAMU ESAU, male of Luatuanuu and Lotopa.

Defendant

Counsel: Ms L Taimalelagi for prosecution

Defendant unrepresented

Sentence: 08 October 2012

SENTENCE

The police summary of facts which the defendant has admitted to states as follows; he is a 50 year old married male of Lotopa with four children. He was at the time of this offending employed at the Sanalele Complex as a security guard working daylight hours. Like any security guard his primary duty was to ensure the security of the complex as well as the prevention and deterrence of crime.

On the night of Thursday 6 September 2012 at about 11:00 pm after a night out at the clubs the defendant went to the complex and there met up with an accomplice. The defendants accomplice was also a security guard for the complex and he was the one on duty that night. On duty together with one other security guard.

The defendant and his accomplice first checked to see what the other security was doing and found out that the other security was fast asleep. So the defendant and his accomplice made their way to the main office of the complex where they removed the louvers of the office and entered through the front door. While the accomplice kept watch at the door the defendant picked up a tool and made his way towards the cash box. The defendant used the tool to break open the cash box and to remove all the envelopes with cash inside therein.

The two men then left the premises and shared the proceeds of the cash box which amounted to Samoan Tala $7000. The following morning the general manager of the complex was informed of the break in and he referred the matter to the police. The defendant and his accomplice were identified as having done some shopping at a nearby store and accordingly were apprehended by the police and taken in for interview. During the interview the defendant admitted to entering the office premises and breaking open the cash box with the tool and with his accomplice stealing the contents of the cash box. The defendant was duly charged and has pleaded guilty to a count of theft as a servant of the sum of $7000 from his employer. He told the probation office when interviewed that only $1500 was in fact stolen by him but the victim impact report from his employer states otherwise and confirms the amount is $7000. And I note the defendant has pleaded guilty to a charge of theft of $7000 not $1500. He must therefore be sentenced on the basis of the amount that he has pleaded guilty to stealing.

The position of the courts in relation to theft as a servant has been stated on many occasions in cases such as Police v Valaauina [2009] WSSC 21:

“The courts attitude to theft as a servant is well documented and should be well-known to the public by now. Because of the seriousness and the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is to not only deter the offender himself or herself from such future behaviour but also others who may be tempted to follow his or her example.”

As outlined in the prosecution submission in this case the general penalties imposed in respect of first offenders who have pleaded guilty to stealing monies around the $7000 mark have been penalties of around 12 months in prison. That takes into account the seriousness of the offending and also the mitigating factors in their favour. Such as the fact that they are a first offender and they have pleaded guilty. There is no reason Esau to treat you case any differently from those cases. For this matter you will be convicted and sentenced to 12 months in prison. Time spent in custody awaiting sentence is to be deducted from that.

.........................
JUSTICE NELSON