Police v Tialino [2014] WSSC 179 (6 October 2014)

IN THE SUPREME COURT OF SAMOA
Police v Tialino [2014] WSSC 179

Case name:	Police v Tialino
Citation:	[2014] WSSC 179
Decision date:	06 October 2014
Parties:	POLICE (Prosecution) UILI TIALINO male of Tafaigata and Talimatau. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Accordingly in respect of these 47 charges of theft as a servant you will be convicted and sentenced to an additional term of 12 months imprisonment additional to your five years that you are currently serving. That in my view is an accurate reflection of the criminality of your action and the scale of your offending and the other circumstances of your case. It also sends the appropriate message to the community in relation to large scale thefts of this nature from your employer. In taking that position I must say that I was not aware of the full circumstances of this matter until I read the file hence my indication to your counsel that a sentence would be concurrent. But having read the document in this matter it is clear that a concurrent sentence would not be appropriate. I apologise if I have made that indication earlier when you made your submissions counsel but it was not clear to me from your submissions what we were dealing with. So convicted and sentenced to 12 months cumulative to existing term.
Representation:	O Tagaloa and L Tavita for prosecution T Leavai for defendant
Catchwords:	Theft as a servant – principle of totality – criminality of your action -
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

UILI TIALINO male of Tafaigata and Talimatau.
Defendant

Counsel: O Tagaloa and L Tavita for prosecution
T Leavai for defendant

Sentence: 06 October 2014

SENTENCE

1. This defendant appears for sentence after pleading guilty to forty seven (47) counts of theft as a servant. The summary of facts which he has through his lawyer accepted states he is a 57 year old male of Talimatau and is currently serving a term of imprisonment for similar offending as that he appears for sentence on today. The victim company who employed the defendant at the relevant time is Gold Star Limited at Matafele.
2. The defendant was the chief accountant for the company and as such was responsible for the normal duties of a chief accountant including making payments to overseas creditors and the bankings for the company. He was also at one stage given authority to countersign Gold Star cheques.
3. The defendants method of stealing money was to deduct monies from the cash sale bankings and keep it for his own personal use. He would then instruct the accounts clerk to use the cash from the following day to make up the shortage. He did this on 47 separate occasions over the period January 2010 to July 2011. In this way he stole substantial sums of money ranging from the lowest of $2,000 to the highest of over $35,000. Total amount involved in the current charges is $370,642.60 as detailed in the 47 charges. The defendant also made out cheques from his personal account to try and cover the shortages. But most of those cheques were dishonoured by the bank.
4. The offending was discovered in November 2011 when the company received complainants from overseas suppliers that the defendant was not issuing payments. When the company manager made enquiries with the companys auditors they were told the audit could not be completed because the defendant have not completed and forwarded financial accounts for 2010/2011. From these audits the offending was discovered and the matter reported to the police.
5. This is obviously a very large theft over an 18 month period. It is calculated and sustained offending. It has heavily impacted on the companys financial position as detailed in the victim impact report. The defendant through his counsel has said that these monies were used to finance an overseas investment. But that he had been duped by scammers in relation to the investment and accordingly lost all the money.
6. Well that may be so but the point remains that the defendant did not use his own money. He used monies belonging to his employer. There is no doubt the seriousness of the offending requires to be met by a penalty of imprisonment. The maximum by law for each charge of theft as a servant is 7 years in prison. Because this offending was carried out under the old Crimes Ordinance 1961 and not the new Crimes Act 2013.
7. Considering all the relevant factors including the fact that the defendant held a prominent position in the company and therefore a large breach of trust occurred in this theft. Having regard also to the scale of the offending. This involves hundreds of thousands of tala as well as the planned and pre-meditated nature with which the offending was carried out. And the defendants effort to avoid discovery of what he was doing including the fact that this is a case of multiple offending not one off offending over a lengthy period of time.
8. A 6 years start point for sentence is quite appropriate. I decline however to uplift that start point to take into consideration defendants previous conviction. Because he is still serving his prison term and an uplift would have the effect of punishing him twice for the same offence. And also because it is apparent that the thefts here are from the same company that he stole from before for which he was sent to prison. As well the current lot of offending seems to cover the same time period. It is not clear why these charges were not dealt with previously. But I can only assume it was because the defendant pleaded guilty to some charges and not guilty to others. Not guilty pleas which he has now changed to guilty when this subsequent lot of charges was finalized.
9. I will however make a deduction for the defendants guilty plea of one-quarter of sentence because his guilty plea has avoided lengthy and complicated litigation. As well it expresses his remorse to some extent. That is a deduction of 18 months leaves a balance of 54 months in prison.
10. In relation to whether a deduction should be made regarding his first offenders status and his good background I note that he is not a first offender at this point in time but he was at the time he committed the offences. And up to that point he had a good background of service to his family and his community and a good background generally. I will make a further deduction of 3 months from the balance of sentence leaves 51 months.
11. The real question is whether this term should be cumulative to your current sentence of imprisonment. Your current term being 5 years in prison. Making these 51 months cumulative means that your total term of imprisonment for this offending would be 9 years and 3 months. I am of the view that would infringe the principle of totality of sentencing. Because while this is a large theft close to half a million tala all up the sentence of 9 years and 3 months would be excessive and in excess of the maximum that would have been imposable had all these charges been dealt with at the same time.
12. The courts approach in such matters is to deal with the offending as if all the charges had been dealt with at the same time. From that point of view as well a cumulative sentence is not appropriate. However I do not believe it would appropriate either to leave your sentence as it currently stands. Because that sentence reflects only the theft of some one hundred odd thousands tala whereas it is now apparent that your theft is close to half a million tala. In order to properly reflect the criminality of what you did Uili your sentence must be adjusted so that you receive a total sentence proportionate to your culpability. Had these matters all been dealt with together a 6 year term would have been quite appropriate.
13. Accordingly in respect of these 47 charges of theft as a servant you will be convicted and sentenced to an additional term of 12 months imprisonment additional to your five years that you are currently serving. That in my view is an accurate reflection of the criminality of your action and the scale of your offending and the other circumstances of your case. It also sends the appropriate message to the community in relation to large scale thefts of this nature from your employer.
14. In taking that position I must say that I was not aware of the full circumstances of this matter until I read the file hence my indication to your counsel that a sentence would be concurrent. But having read the document in this matter it is clear that a concurrent sentence would not be appropriate. I apologise if I have made that indication earlier when you made your submissions counsel but it was not clear to me from your submissions what we were dealing with. So convicted and sentenced to 12 months cumulative to existing term.
    

JUSTICE NELSON