Police v Kuini [2013] WSSC 109 (23 September 2013)

SUPREME COURT OF SAMOA

Police v Kuini [2013] WSSC 109

Case name: Police v Kuini

Citation: [2013] WSSC 109

Decision date: 23 September 2013
Parties:
POLICE (Prosecution) v FUGALAAU KUINI, female of Vaoala and Saasaai Savaii (First Defendant) and SIUFOFOGA KOLENI, female of Vaitele-uta and Puipaa. (Second Defendant)

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
L Taimalelagi for prosecution
F K Ainuu for first defendant
M V Peteru for second defendant

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Police v Valaauina [2008] WSSC 21
Police v Vaigafa [2008] WSSC 4

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

FUGALAAU KUINI, female of Vaoala and Saasaai Savaii
First Defendant

AND:

SIUFOFOGA KOLENI, female of Vaitele-uta and Puipaa.
Second Defendant

Counsel: L Taimalelagi for prosecution
F K Ainuu for first defendant
M V Peteru for second defendant

Sentence: 23 September 2013

SENTENCE

These two defendants appear for sentence on charges of theft as a servant. Fugalaau Kuini faces 298 charges. Her co-defendant Siufofoga faces 8 charges. The police summary of facts states Fugalaau is a 43 year old female of Vaoala and Saasaai in Savaii presently working. Her co-defendant Siufofoga Koleni is 41 years old of the village of Vaitele-uta and Puipaa also presently working.

Fugalaau was at the time of these offences employed as a senior accountant in the Finance Division of the National Health Services stationed in Savaii. Her function was to primarily monitor and control all revenue collecting activities for Savaii. Her co-defendant Siufofoga was appointed National Health Service Principal Revenue Officer in April 2009. Her main function was to supervise revenue collection for all outputs in both Upolu and Savaii. She was Fugalaaus supervisor.

In relation to Fugalaau the summary of facts says that on 290 separate occasions from August 2010 to May 2011 she received monies from various District Hospitals in Savaii. She failed to account for the collection in accordance with general practice and procedure. She failed to bank the collections and instead kept the funds for her own personal use. Details of her thefts are the subject of 290 of the 298 theft as a servant charges. They involved amounts as small as $5.00 up to amounts in excess of $1,000.00. The monies were stolen over the October 2010 to March 2011 period when the thefts came to light. During this 7 month period she stole $59,638.50.

This is a case of an employee systematically stealing in excess of $50,000.00 tax payer monies. Stealing a small amount almost on a daily basis over a lengthy period of time without being detected. It is an astounding reflection of the inadequacy of the accounting controls under which she worked. And it does not inspire confidence in the safety of National Health Service public monies. Clearly the National Health Services internal control and accounting processes need to be re-visited by those responsible for its administration.

In January 2011 Fugalaaus supervisor Siufofoga became involved in Fugalaaus illegal activities. The police summary says that on eight (8) occasions between January and March of 2011, Siufofoga asked Fugalaau if she could borrow money from the Savaii collections. Acting on this Fugalaau removed money from the Savaii revenue collections and deposited it into Siufofogas personal bank account. Money which Siufofoga applied for her own personal use. The details and amount of such thefts are the subject of the eight (8) theft as servant charges which both these defendants face. The two of them jointly stole $2,400.00 in this fashion.

I have considered whether there should be a separation of sentence in respect of the two defendants. Given that one stole over $60,000.00 and the other only $2,400.00. But it is clear from the facts that they colluded and acted together in relation to the eight (8) charges that they shared. For those eight (8) charges there is no justifiable basis for treating them separately.

The courts policy in relation to theft as a servant is well documented and has been applied in many previous cases. Because of the seriousness and prevalence of this kind of offending usually imprisonment is imposed. Unless there are exceptional circumstances warranting some other penalty. The reason for such imprisonment penalties is to deter not only the offender but others who may be tempted to do this sort of thing. See Police v Valaauina [2008] WSSC 21

In relation to the offender Fugalaau first: the circumstances of her offending require a penalty of imprisonment. She stole from the people of this country and did it while holding a senior position in the National Health Service. This is a not a case of one-off offending it is multiple offending carried out over a lengthy period of time. The offending involved a significant sum and a high degree of planning and concealment.

You have been prosecuted under the previous Crimes Legislation which prescribes a maximum penalty of 7 years imprisonment. Considering your position in the National Health Service and all the other factors of your offending I agree with the prosecution a 5 year imprisonment start point is appropriate for your case.

I will discount from that the mitigating factors that your counsel has referred to, such as your good previous background and your record of service to your family and village; and also to take into account the character references attached to your probation report. In respect of those matters I will allow a deduction of 6 months from the beginning sentence. Leaves a balance of 4½ years in prison. Your guilty pleas to all 290 charges has saved the court a lot of time and resources and also shows to some extent your remorse for your offending. For your guilty plea I will deduct a period of one (1) year from your balance of sentence. That leaves a balance of 3½ years.

There are no other deductions Fugalaau that can be made in respect of your sentence. As a total sentence for the 290 charges of theft as a servant you are convicted and sentenced to 3½ years in prison.

In respect of the eight (8) charges of theft as a servant where you are jointly charged with Siufofoga you will be convicted and sentenced to 18 months in prison but those terms are to run concurrent with your other term of imprisonment.

Siufofoga although you face a lesser number of charges your offending is aggravated by the fact that you were Fugalaaus supervisor. You therefore held a higher position of trust than her in the National Health Services. As my brother judge said in Police v Vaigafa [2008] WSSC 4 case “the worst aggravating factor in this matter is the serious breach of trust.” Within a period of less than two months you stole a total of $2,400.00.

The start point attached to your sentence should be lesser than your co-defendant. Because your theft involved a smaller amount over a lesser period of time and fewer charges. But there is no question that a penalty of imprisonment must be imposed for your offending.

Start point in my view appropriate to your case is 2½ years imprisonment. From that you are entitled to a deduction for your guilty plea and for that I deduct 6 months from your sentence leaving a balance of 2 years. In respect of your good references and your previous good character referred to in the probation office report a further deduction of 6 months. Leave a balance of 1½ years. Full restitution has been made and the necessary receipt has been provided to confirm that. That warrants a further deduction of 6 months from your sentence leaving a balance of 12 months.

For the eight (8) charges of theft as a servant Siufofoga you will be convicted and sentenced to 12 months in prison as a total sentence for all charges.

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