Police v Tagoai [2013] WSSC 60 (24 June 2013)

SUPREME COURT OF SAMOA

Police v Tagoai [2013] WSSC 60

Case name: Police v Tagoai

Citation: [2013] WSSC 60

Decision date: 24 June 2013

Parties: POLICE (prosecution) and IESILIKA TAGOAI female of Patamea and Tafuna, American Samoa.

Hearing date(s):

File number(s): S2060/12, S2092/12

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:

Catchwords:

Sentence, theft as a servant

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S2060/12, S2092

BETWEEN

POLICE

Prosecution

AND:

IESILIKA TAGOA’I female of Patamea and Tafuna, American Samoa.

Accused

Counsel: F E Niumata for prosecution

P T Masipa’u for accused

Sentence: 24 June 2013

SENTENCE

The charges

1. The accused appears for sentence on four charges of theft as a servant to which she had pleaded not guilty but was found guilty at trial. The total amount for which the accused was charged in those four charges was $1,202.30.

The offending

2. The accused started working in June 2012 as the customer officer for the National Pacific Insurance (NPI) at its Salelologa branch in Savaii. She was the only employee working at the Salelologa branch of the NPI. As such, she performed all the tasks at that branch of the NPI. It was a multi-task job. Amongst the tasks the accused had to carry out were receiving money from customers and issuing receipts as well as doing the daily banking using a lodgment book.
3. At intervals, the country manger of the NPI at its main office in Apia would visit the Salelologa branch for spot-checks. On one such spot-check by the country manager on 27 September 2012, it was discovered that the sums of $1,000, $100, $52.30, and $50 had been received by the accused on 11 September 2012 from four different customers and receipts were issued. However, none of that money had been banked.
4. When the NPI country manager questioned the accused about the money, she replied that she received the four sums of money from four different customers on 11 September 2012 between 3:30pm and 4pm in the afternoon. At that time, the bank at Salelologa had already closed for the day. At the same time, she received a phone call from her family in American Samoa that her son in American Samoa had been involved in an accident. That made her very upset. She then put the money and copies of the receipts in an envelope, placed the envelope with other documents on her desk, locked her office, and went home. She then completely forgot about the money until 27 September 2012 when the NPI country manager came to Salelologa and did a spot-check. The accused also testified that when customers came to see her in the office, they would sit in front of her desk facing her. Sometimes when serving a customer she would leave her desk. The envelope containing the money was within arm’s reach. The accused was evidently trying to give the Court the impression that perhaps a customer who had come to see her might have reached over and took the envelope containing the money which had been left on her desk without her knowledge as she would sometimes leave her desk.
5. I decided not to accept the evidence of the accused and the explanation she had given to the NPI country manager. It is simply unbelievable. In the first place, it is unbelievable that for more than two weeks between 11 and 27 September 2012 she had completely forgotten about the envelope in which she had put the money and copies of the receipts when that envelope was placed on the very desk at which she did her work. In other words, if what the accused had said is true, then the envelope must have been lying on her desk right in front of her the next day when she returned to work and until the day the envelope was taken by a customer who came to see her whenever that day was. There was also no evidence that someone had entered the office between the time the accused went home on 11 September 2012 and the next day when she returned to work. Secondly, up to the time of the spot-check on 27 September 2012, the accused had with her the receipt book which should have reminded her of the money she received on 11 September 2012 and the lodgment book which should have reminded her that the money had not been banked. Thirdly, after the accused’s employment was terminated on 27 September 2012, the envelope mentioned by the accused was found in the office together with the copies of the receipts it contained but without the money that was in it. So the envelope could not have been taken by a customer who came to see the accused in the office, as the evidence given by the accused seems to insinuate.
6. On the day the accused’s employment was terminated, she repaid in full the money with which she has been charged.

The accused

7. The accused is a 39 year old female of Salelologa and American Samoa. She is single but has an adopted 8 year old son who lives under the care of her parents in American Samoa. She is well educated as she holds a degree in science and business accounting. She is also a first offender and it appears from her pre-sentence report that she had been a person of good character prior to the commission of these offences.

Aggravating factors

8. With this case, as with other theft as a servant cases, the principal aggravating factor relating to the offending is the breach by the accused of the trust and confidence of his/her employer. There is no aggravating factor relating to the offender.

Mitigating factors

9. The mitigating factors relating to the offender in this case are the fact that shortly after the discovery of the missing money, the accused repaid it in full. The accused is also a first offender. I also take into account the personal circumstances of the accused as set out in her pre-sentenced report.
10. I do not consider, however, that the accused is truly remorseful as she is still denying her guilt as it appears from her pre-sentence report.

The decision

11. In passing sentence, I take into account the aggravating factors relating to the offending, the high prevalence of this kind of offence, the need for deterrence in this kind of case, the mitigating factors relating to the accused, the personal circumstances of the accused set out in her pre-sentence report, the amount of money involved, and the relevant parts of the plea in mitigation by defence counsel. Applying the totality principle to the four charges of theft as a servant, I have decided to sentence the accused to 3 months imprisonment on each of those charges. All sentences to be concurrent so that the sentence to be served by the accused is 3 months imprisonment. Any time the accused has already spent in custody pending the outcome of this matter is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution

Vaai, Hoglund and Tamati Law Firm for accused