Police v Setu [2013] WSSC 146 (4 December 2013)

THE SUPREME COURT OF SAMOA

Police v Setu [2013] WSSC 146

Case name:	Police v Setu
Citation:	[2013] WSSC 146
Decision date:	04 December 2013
Parties:	THE POLICE (Prosecution)and TAVITA SETU, male of Afega (First Defendant) and USUMANUTOMASI also known as KALOLO TOMASI, male of Leauvaa (Second Defendant) and FALEUPOLU FALE, female of Foailalo (Third Defendant) and SIALA UTUMAPU, male of Fogatuli and Foailalo (Fourth Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Tagaloa for prosecution R V Papalii for first defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

TAVITA SETU, male of Afega

First Defendant

AND

USUMANUTOMASI also known as KALOLO TOMASI, male of Leauvaa

Second Defendant

AND

FALEUPOLU FALE, female of Foailalo.

Third Defendant

AND

SIALA UTUMAPU, male of Fogatuli and Foailalo.

Fourth Defendant

Counsel: O Tagaloa for prosecution

R V Papalii for first defendant

Sentence: 04 December 2013

SENTENCE

1. The four defendants appear for sentence on various charges to which they have pleaded guilty. The primary defendant Tavita Setu on information S786/13 has pleaded guilty to stealing $4,490.00 being the property of his employer the complainant company. The second defendant Usumanu Tomasi as well as the third defendant Faleupolu Fale and the fourth defendant Siala Utumapu have all pleaded guilty to information S806/13 which charges them with aiding and abetting Tavita in the above theft of $4,490.00. Usumanu has also pleaded guilty to S807/13 which is a count of intentional damage of a padlock. The padlock was at the back of the delivery truck where the money was kept. Usumanu has also pleaded guilty to S801/13 but that is a duplicate charge and should be dismissed. His two co-defendants Faleupolu and Siala have also however pleaded guilty to S808/13 which is a charge of aiding and abetting Usumanu to intentionally damage the padlock of the truck.
2. The police summary of facts which all defendants admit says that the first defendant Tavita is 32 years old of Afega in a defacto relationship with 5 children. At the time of these offence he was employed as truck driver for the complainant company. The second defendant Usumanu is 38 years old single of Leauvaa also works as a truck driver for the complainant. Third defendant Faleupolu Fale is 39 years old of Fualalo married with three children. Fourth defendant Siala is 42 years old of Fogatuli and Fualalo in a defacto relationship and works at the District Hospital in Fualalo.
3. The police summary says that what happened here was Tavita and Usumanu were driving the complainants trucks. On the night of Thursday 30th of May this year the two trucks were parked at the house of the defendant Faleupolu in the village of Fualalo. Faleupolu is apparently a friend of the owner of the complainant company. Accompanying the delivery trucks were the Chinese supervisors for the company. They were also spending the night with the trucks at Fualalo. While the supervisors were sleeping Tavita and Usumanu were drinking beer at Faleupolus house. Tavita and Usumanu then plotted to break into the truck because they were dissatisfied with the company paying them low wages and not paying them enough for overtime. Usumanu asked Faleupolu for a hacksaw “iliuamea” and she gave him one. All defendants went to the delivery truck and Usumanu used the hacksaw to cut the padlock at the back of the truck. Once the padlock was cut Tavita went into the truck, opened the money bag and took out $4,490.00. Came out of the truck and this money was shared amongst the defendants. Including the fourth defendant Siala Utumapu who seems to have been at the premises. The breakin was discovered the next day by the Chinese supervisors and the matter reported to the police. Investigations led back to the defendants hence their court appearances.
4. It is appropriate to deal with the two primary offenders first namely Tavita and Usumanu. Tavita is charged with one count of theft as a servant which carries a maximum penalty under the new Crimes Legislation of 10 years in prison. Theft as a servant is one of the most prevalent offences within this country so that the court has evolved a sentencing policy. Offenders can expect imprisonment as a deterrent to the offender personally and to the public generally. In Tavitas case it is even more required because he already has a previous conviction for this particular offence. In 2009 he was convicted of theft as a servant and was fined. He failed to learn from that experience and has reoffended.
5. Considering the circumstances of this matter an appropriate penalty for Tavita should be around 3 years in prison. That should be upgraded to 4 years because of his previous conviction. However Tavita you have pleaded guilty to this offence and saved the courts time and the need for a trial. I therefore deduct 6 months from your start point of 4 years in prison. Leaves a balance of 3½ years. I also note that all the money that was taken was recovered by the police including the money that was given out to your co-defendants. Court considers that a significant mitigating factor and deducts 6 months from the balance of your term leaving 3 years in prison. Had you been a first offender with a good record that term could have been further reviewed but as noted you have a previous conviction for this sort of offending. No deduction can therefore be made for that matter. Tavita you will be convicted and sentenced to 3 years in prison.
6. In respect of the second most prominent offender that is Usumanu. You also were an employee of this company. But you have not been charged as a primary offender you have been charged with aiding and abetting Tavita. So while you should still receive an imprisonment penalty it should not be as heavy as Tavita. Because you played a lesser role and also because in your case Usumanu you are a first offender and you have a good background. In addition to that you are entitled to credit for your guilty plea. Your penalty should reflect the fact that the money that you helped steal has been recovered. Weighing all those considerations an appropriate penalty for your role in this theft Usumanu would be a period of 9 months in prison. On the charge of aiding and abetting Tavita you will convicted and sentenced to 9 months in prison. In respect of the damage to the padlock you will be convicted and sentenced to 2 weeks in prison but that is to run concurrent with the other term.
7. The remaining two defendants have also pleaded guilty to their part in aiding and abetting Tavitas theft. But it is clear that your role in aiding and abetting Tavita was considerably less than that of Usumanu. What you did Faleupolu and Siala was still extremely serious. And the fact that some of this money was recovered from your possession by the police indicates that you had a share in the stolen proceeds. The court has therefore given careful consideration to what penalty should be imposed on the two of you. In considering all the circumstances of this matter I have come to the conclusion that a penalty of imprisonment should not be imposed on either of you.
8. Ae masalo o lena ua lua silafia le lē talafeagai o le tulaga lea na lua faatinoina i le mataupu lenei. A faapea e telē atu le lua aafia i le mataupu lenei semanu tou te nofo falepuipui faatasi ma leisi toalua lea na faatinoina le solitulafono. Ae ona o tulaga ia ua tolaulau atu e le faamasinoga ma o lea foi faatoa molia mai oulua i luma o le faamasinoga. O loo lelei foi le talaaga o oulua soifuaga i le lipoti a le ofisa faanofo vaavaaia ma ona o lea ua lua vave ioe i le solitulafono ua sefe ai foi le taimi o le faamasinoga. Maua le lua avanoa i le mataupu lenei, aemaise o lea ua toe maua le tupe a le kamupani. Ae aua le toe faia se mea faapea. Aua a toe molia mai oulua ia o le mea lea na tupu ia Tavita o le mea tonu lena e tupu ia oulua. A toe aumai oulua i luma o le faamasinoga i ituaiga moliaga faapenei ua tasi loa le faaiuga ua tatau ona faataatia atu. Ua manino ia tulaga Faleupolu ma Siala? (Defendants indicated they understood).
9. In respect of the defendant Faleupolu she will be convicted and fined $200 on information S806/13 which is the aiding and abetting. She will also pay police costs $50 probation office costs of $50 that is a total sum of $300 on that information. That is to be paid within 7 days in default 3 months imprisonment. In relation to the other charge of aiding and abetting the intentional damage of the padlock I note Faleupolu that you were the one who provided the hacksaw. On that matter you will be convicted and fined $200 that also is to be payable within 7 days in default one month imprisonment. Ua e malamalama i faaiuga o mataupu ia e lua faasaga ia oe Faleupolu? (defendant indicated she understood). O lona uiga e $500 lau tupe e tatau ona saili i totonu o le fitu aso, ae a faaletonu ua tatau ona e alu e tuli lau faasalaga e 4 masina i le falepuipui.
10. In respect of the last defendant Siala he seems to have played the smallest role in this matter. Siala you will be convicted and fined $200 plus $100 for costs. Total sum of $300 also payable within 7 days in default 3 months in prison. On the other charge of aiding and abetting the intentional damage to the padlock it seems you played no role in that. You are convicted and discharged without penalty on that matter. O lona uiga pau lau tupe e te alu e saili o lau $300 i le moliaga autu Siala e tatau ona totogi i totonu o le 7 aso a leai 3 masina i le falepuipui. Ua e malamalama i le faaiuga o lau mataupu? (Defendant said yes).
    

JUSTICE NELSON