Police v Faamausili [2013] WSSC 123 (22 August 2013)

SUPREME COURT OF SAMOA

Police v Faamausili [2013] WSSC 123

Case name: Police v Faamausili

Citation: [2013] WSSC 123

Decision date: 22 August 2013

Parties: POLICE (prosecution) and TOGA FAAMAUSILI male of Malie

Hearing date(s): 9 – 12 July 2013 and 15 July 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
E Niumata for prosecution
T I Ponifasio for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss. 85, 86(g)

Cases cited:
Police v Milo [2001] WSSC 45
Police v Ah Sue [2001] WSSC 15
Police v Toomalatai [1999] WSSC 23
Police v Samu [2008] WSSC 22
Police v Laifa Vaoiva
Police v Falaniko (28 February 2011)
Police v Joan Smith (6 September 2011)
Police v Luma Sua (8 April 2013)
Police v Tevaga [2012] WSSC 35

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

TOGA FAAMAUSILI male of Malie

Defendant

Counsel: E Niumata for prosecution

T I Ponifasio for defendant

Hearing: 9 – 12 July 2013 and 15 July 2013

Reasons for Decision: 22 July 2013

Sentence: 22 August 2013

Charge: Theft AS a Servant (11 Counts)

SENTENCE OF SLICER J

1. Toga Faamausili has been convicted, following trial of eleven charges, of theft as a servant, contrary to the Crimes Ordinance 1961 sections 85 and 86 (g). He was acquitted of other charges on the basis that the prosecution was unable to prove those components of a circumstantial case.
2. The amount involved is $28,674.27 following acts of dishonesty on eleven occasions.
3. The facts giving rise to the convictions have been stated in the Reasons for Judgment delivered on 23 July 2013, and require no detailed re-examination. The conduct was a breach of trust, and the nature of the repeated acts of criminal conduct said to be prevalent within Samoa.
4. The prosecution referred to a number of cases which provide guidance for the appropriate penalty. They are:

Milo [2001] WSSC 45. A term of imprisonment of eighteen months (consistent with Ah Sue [2001] WSSC 15) for theft within a range of $8,000 to $15,000.

Toomalatai [1999] WSSC 23. Eighteen months imprisonment.

Samu [2008] WSSC 22. The appropriate range was considered to be:

$10,000 - 2 years imprisonment; and

$2,000 - $4,000 - 18 months imprisonment; minor amounts but multiple offences – 12 months imprisonment.

Laifa Vaoiva. Theft of $16,013.90, a sentence of one year and eight months imprisonment on a plea of guilty.

Falaniko (28 February 2011). Theft of $18,000 on a plea of guilty but where restitution had been made a sentence of one year imprisonment.

Joan Smith (6 September 2011). Theft of $20,000 on a first offender already punished by the fono; two years imprisonment.

Luma Sua (8 April 2013). Thirty-five counts of theft involving $18,375 involved a starting point of four years and sentence of two and a half years imprisonment.

5. Here the prosecution submits that the actual term of imprisonment be no less than three and a half years. That submission takes into account the matters of aggravation already referred to, and assumes some degree of mitigation.
6. Here the defendant was involved in an employment with high responsibility and control.
7. The Court accepts that a suitable commencing point is three and a half years imprisonment. In Tevaga [2012] WSSC 35, the Court imposed a sentence of imprisonment of four and a half years for acts of dishonesty over a period of two years. This case is not as serious as that. In Falaniko (supra) the defendant was entitled to the benefit of a plea of guilty and had made full restitution. This case falls between the two.

Mitigation

8. The defendant is not entitled to the benefit of a plea of guilty. Nor is he entitled to allowance given for restitution. He made no apology and when the investigation commenced he simply did not return to work.
9. He has been provided with a strong reference by a senior officer of a government department which says that he is a hard worker and contributed to his church and community.
10. He is aged thirty-one, married with two children. He is the sole provider for his family, including his mother. He was unable to complete his education because of a serious illness. He is a first offender.
11. The Court will discount the commencing point by eighteen months and he will be sentenced to two years imprisonment.

ORDERS:

(1) Toga Faamausili be convicted of the crime of Theft As a Servant.
(2) Toga Faamausili is sentenced to a term of imprisonment for a period of two years, such sentence to commence as and from 21 August 2013.

....................................

(JUSTICE SLICER)