Police v Tevaga [2013] WSSC 35 (21 May 2013)

SUPREME COURT OF SAMOA

Police v Tevaga [2013] WSSC 35

Case name: Police v Tevaga

Citation: [2013] WSSC 35

Decision date: 21 May 2013

Parties: POLICE and IOANA TEVAGA, female of Samatau and Lalovaea

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order: (sentence)
Representation:
Edelma Niumata for prosecution

Accused in person

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

IOANA TEVAGA female of Samatau and Lalovaea

Accused in person

Counsel:

Edelma Niumata for prosecution

Accused in person

Sentence: 21 May 2013

S E N T E N C E

1. The defendant pleaded guilty to 26 charges of theft as a servant committed between September 2012 and January 2013 whilst the defendant was employed by the Ministry of Revenue.
2. According to the summary of facts which the defendant did not contest, the defendant on 26 separate occasions received applications from business owners for business licenses. Sums of $220 which accompanied each application were also received which the defendant did not issue receipts. She kept these monies for her personal use.
3. To avoid detection of her criminal activities the defendant tampered with the computerised system of the Ministry which recorded the business licence holders and their tax information numbers (TIN). She then issued business licences to the 26 new applicants using TIN already issued to other business licence holders.
4. An internal investigation within the Ministry was launched in January 2013 when the Principal Officer of the division discovered the apparent mismatch in the TIN and the licence holders.

The Defendant

5. The defendant is a 32 year married woman with two young children aged 1 and 2 years old. They reside at the husband’s family at Moata’a. As a result of her offending she has been confined to care giving for her children.
6. She is depicted in the pre-sentence report as an intelligent woman whose original educational pursuits were interrupted by her mother’s ill health and death.
7. She was employed by the Ministry of Revenue in 2003 as an assistant customs officer. She also undertook part time studies and worked herself up the ranks within the Ministry.
8. Attached to the pre-sentence report is a testimonial and character reference from the Deputy Chief Executive Officer of the Ministry testifying to her reliability, honesty and her achievements during her 10 years of service. Part of that letter reads:

“She had apologised many times and was very remorseful but unfortunately for her, we have policies we must abide with.

However I wish nothing but the best for Ioana and better luck in whatever other endeavour she will choose for her future career. I am confident of Ioana’s determination and capability to perform any duties assign to her with integrity and commitment, with high hopes that the misfortune she had gone through would make her a better person, make her more aware of the risk of being negligence ...”

Aggravating factors

9. The prosecution says the aggravating features of the defendant’s offending includes:
   • (i) The breach of the trust which the Ministry placed on the defendant;
   • (ii) The amount of $5,270 stolen according to Samoan standards is a substantial amount;
   • (iii) The offending was committed 26 times over a period of 4 months
   • (iv) The thefts were premeditated with a plan to conceal the dishonesty;
   • (v) And lastly the crime of dishonesty by employees continue to be on the rise and the need for deterrent sentence is justified.

Mitigating factors

10. It is conceded by the prosecution that the defendant’s early guilty plea and first offender status are mitigating factors.
11. The court requested the prosecution to verify the claim by the Probation Service that $2,420 was recovered in January 2013 when 11 business licences were in fact paid leaving a balance of $3,300 before the defendant’s service with the Ministry was terminated. Confirmation has been given.
12. The defendant also told the court that she has made arrangements with the Ministry to pay the balance owing and the prosecution was requested to check with the Ministry, during the adjournment, the arrangements relayed by the defendant. Prosecution did not verify and I accept the defendant’s undertaking to repay the $3,300.

Discussion

13. The prosecution suggests a term of imprisonment of not less than 12 months imprisonment given the aggravating factors of the offending and the sentences imposed in the past for comparable offending.
14. It has been said many times that people who hold positions of trust must realise that a betrayal of that trust has serious unpleasant consequences. At the time the breach of the trust was knowingly and intentionally committed, the defendant knew she will be dealt with severely.
15. It is true as the prosecution submitted that the culpability of the offending was aggravated by the 26 occasions in which the defendant stole the monies over a period of 4 months and more particularly her efforts in concealing her criminal activities by manouvering the computerised system of the Ministry. But when the investigations were launched, completed and charges laid, the defendant had in fact repaid $2,420 so that the 26 incidents of theft had in fact been reduced to 15, an indication that she did not intend to permanently deprive the Ministry of the amounts she took and she did intend to pay it back.
16. There is also suggestion from the pre-sentence report and the testimonial by the Ministry that some if not most of the monies stolen were not for the defendant personally but unauthorised borrowings by other employees of the Ministry who due to the defendant’s easy access to cash, pressured the defendant into taking money and attempted to cover up the illegal taking by tampering with the system. The defendant acted stupidly by giving in to the demands of those employees.
17. Although custodial sentences must always be considered for offences involving dishonesty by those who were placed in positions of trust, sentence to be passed in each case must be considered primarily in the circumstances surrounding the offending. Undoubtedly this defendant at the age of 32 has committed her first and most serious mistake in her lifetime. She has ruined her employment opportunity to advance within the Ministry.
18. I am satisfied she is genuinely remorseful. She has arranged to pay back the balance owing. A custodial sentence as suggested by the prosecution is not warranted.
19. The defendant is convicted and placed on probation for 18 months on conditions:
    • (i) She will pay to the Ministry through the Probation Service the sum owing of $3,300 by monthly installments of $200 commencing on the 30^th May 2013.
    • (ii) She will perform 60 hours community service.
    • (iii) She will attend any programme recommended by the service.
      

JUSTICE VAAI