Police v Smith [2013] WSSC 4 (15 February 2013)

SUPREME COURT OF SAMOA

Police v Smith [2013] WSSC 4

Case name: Police v Smith

Citation: [2013] WSSC 4

Decision date: 15 February 2013

Parties: Police and Bolivia Smith

Hearing date(s): 21, 22, 23 February 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

1. On all 34 charges of theft the defendant is convicted and placed on probation for 18 months. She will perform 60 hours of community work as directed by the Probation Service. She will also attend any programme or course as directed by the Probation Service.
2. She will also through the Probation Service pay costs to the prosecution of $2,000 by monthly instalments of $200, first payment to be made on the 29^th March 2003.

Representation:
Edelma Niumata for prosecution

Semi Leung Wai for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

BOLIVIA SMITH female of Vaiala

Defendant

Counsel:

Edelma Niumata for prosecution

Semi Leung Wai for defendant

Sentence: 15 February 2013

SENTENCE

1. The defendant was employed by Computer Services Ltd (CSL) as a junior engineer in 2006 to 2009. She was 23 years of old at the time she committed the crimes of theft for which she was dismissed and for which she now stands for sentence.
2. After a defended hearing the defendant was found guilty of 34 informations alleging theft. The total sum of money involved was $6,818, stolen over a period of just over 12 months.
3. She deliberately ignored the standard procedures of CSL which each technician was instructed to follow; contrary to those instructions she received and accepted payments from customers of her employer which she used.
4. Although the method employed by the defendant to steal cannot be classified as sophisticated it nonetheless involved time consuming investigations to detect and the legal process was also time consuming and fairly expensive. Culture of dishonesty within the system would have continued if it was not detected.
5. Prosecution suggests a term of imprisonment of not less than two years. It emphasized that the sentence should denounce her conduct, to hold the defendant accountable for her actions and the harm done to the victim, to deter the defendant and other like minded people, and to protect the business community.
6. The defence on the other hand emphasised a community based sentence is more appropriate given the age of the defendant, her impeccable record and her obvious remorse.
7. Undoubtedly the most serious aggravating feature of the offending is the numerous incidents of theft over a relatively short period of time, and the stealing would have continued if it was not discovered.
8. Breach of trust implicit in the offending, the amount misappropriated, and the steady rise in this brand of offending should also factor in the consideration.

The Offender

9. At the age of 26, this obviously intelligent defendant lives with her relatives at Vaiala whilst her parents reside in New Zealand.
10. She is currently employed. A written testimonial from her church youth group co-ordinator describe the defendant as not only an active member, but she also exhibits leadership skills.

Discussion

11. It is blatantly obvious from the evidence during the defended hearing that the defendant was not acting alone. Some of the cashiers who have also been dismissed by CSL were also involved in some of the thefts. When the defendant joined CSL there were also other engineers who did not comply with instructions.
12. In considering the appropriate sentence, the court must not only look at the circumstances surrounding the offending, it must also take account of sentences imposed in the past for similar offending.
13. After considering her educational background and personal and family circumstances the probation service recommends a community based sentence if the court wishes to consider an alternative sentence to imprisonment.
14. The Community Justice Act 2008 emphasises that the court, in considering sentence for an offence punishable by imprisonment, must have regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
15. In my view there are exceptional circumstances which justify the court to depart from imposing a custodial sentence. In the first place, the defendant prior to her offending had an impeccable record. With her educational achievements and skills she can contribute beneficially to society. Keeping her away from prison will be consistent with the purpose and principle of the Community Justice Act. She is no threat to the safety of society and the business community.
16. Secondly when she entered the service of CSL as a young woman technician, in fact the youngest and most junior, she was introduced into a system for which others have been and were dismissed from service. Her youth, inexperience, lack of parental guidance, and family pressure probably led her to commit the offences.
17. This defendant needs guidance. Through the probation report she has exhibited that she can respond genuinely. Her church and the probation service will adequately provide that supervision.
18. The court is informed that the defendant and parents have paid compensation of $8,000 and apologised to CSL.

Sentence

(1) On all 34 charges of theft the defendant is convicted and placed on probation for 18 months. She will perform 60 hours of community work as directed by the Probation Service. She will also attend any programme or course as directed by the Probation Service.
(2) She will also through the Probation Service pay costs to the prosecution of $2,000 by monthly installments of $200, first payment to be made on the 29^th March 2003.

____________________

JUSTICE VAAI