Police v Asia [2014] WSSC 187 (10 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Asia [2014] WSSC 187

Case name:	Police v Asia
Citation:	[2014] WSSC 187
Decision date:	10 November 2014
Parties:	POLICE (Prosecution) ASIA ASIA male of Maagiagi. (Defendant) AND SELULO AMETO male of Vaitele-uta and Faleula. (Second Defendnat) AND UNASA MASOE MOORS male of Vaivase-tai (Third Defendant) AND LUSIA JOHN female of Siusega and Lalovaea. (Fourth 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:	In respect of this matter as a total sentence for all charges, each of you defendants first, second and third is convicted and sentenced to 4 years in prison. Remand in custody time, however, is to be deducted from that 4 year period. The fourth defendant is charged with only one charge reflecting the fact the she received only one load of the stolen diesel. Her culpability therefore is much lesser. Having given due consideration to the circumstances of her offending and what is in her pre-sentence report as well as Lusia what your lawyer has said on your behalf and noting that the prosecution are not seeking a prison term penalty. I have come to the conclusion your matter can be dealt with by way of a monetary penalty. But make no mistake Lusia what you did was serious because without people like you people who steal would have nowhere to sell their stolen goods. This should be a very valuable lesson to you because next time I doubt you will receive leniency from the court. Your counsel has on your behalf indicated you are able to make restitution which means that you are able to meet monetary penalties. You will therefore be convicted and ordered to pay the following sums: firstly a fine of $500.00; secondly court costs of $100.00; police costs of $100; probation office costs of $100. That total sum of $800.00 is to be paid by 4:00 p.m. tomorrow, Tuesday 11 November in default 6 months imprisonment. In relation to restitution you are ordered to make full restitution of $2,054.24 payable to the probation office as restitution. That is to be paid by 12:00 p.m. Friday this week, 14 November in default you will serve a further 6 months imprisonment.
Representation:	O Tagaloa for prosecution S Ponifasio for first defendant T Atoa for second defendant Mr Toleafoa for third defendant T Leavai for fourth defendant
Catchwords:	-
Words and phrases:
Legislation cited:	Crimes Ordinance 1961
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ASIA ASIA male of Maagiagi.
First Defendant

AND:

SELULO AMETO male of Vaitele-uta and Faleula.
Second Defendant

AND:

UNASA MASOE MOORS male of Vaivase-tai.
Third Defendant

AND:

LUSIA JOHN female of Siusega and Lalovaea.
Fourth Defendant

Counsel: O Tagaloa for prosecution
S Ponifasio for first defendant
T Atoa for second defendant
Mr Toleafoa for third defendant
T Leavai for fourth defendant

Sentence: 10 November 2014

SENTENCE

1. These four defendants appear for sentence on charges arising out of theft of diesel from a supplier of diesel to the Vailima Breweries at Vaitele. The first two defendants are employees of Vailima; the third defendant is an employee of PPS the diesel supplier company for Vailima; and the fourth defendant owns a petrol station which has diesel pumps.
2. In 2012 and 2013 the first defendant was employed as a stores officer for the engineering department of the Breweries. His job responsibilities included checking the amount of diesel supplied by PPS to the Breweries for boilers used to brew beer and other products.
3. According to the police summary of facts the normal procedure is when a PPS truck arrives at the Breweries the second defendant as an injector driver for the engineering department would measure the amount of diesel in the truck and ensures it corresponds with the amount of fuel ordered. When that is done the fuel is then pumped into the Breweries tanks. Once that is done the stores officer of the Breweries then checks and certifies the fuel has been all supplied. The first defendant fills out the necessary paperwork and signs off on the purchase.
4. However the PPS fuel truck has more than one tank. What the defendants were doing was that not all the diesel ordered was pumped into the Breweries tank. Some of it was diverted into the empty tank of the PPS truck. This diesel was then sold by the defendants to various petrol stations. They kept the cash from these sales. The third defendant as a truck driver for PPS was also involved in this arrangement.
5. In this way the defendants stole over the course of about 12 months approximately 100,000 litres of diesel valued at around $300,000. Because the thefts occurred prior to the new Crimes Act 2013 coming in to force the first and third defendants are therefore charged with theft as a servant under the old Crimes Ordinance 1961. Under that Act theft as a servant carries a 7 year maximum penalty.
6. The fourth defendant, as stated, owns a petrol station at Faleula and her involvement in this matter was she purchased one load of the stolen diesel. A quantity of 800 litres valued, according to the police summary, at $2,054.24. She has pleaded guilty to receiving stolen goods under section 90 of the Crimes Ordinance 1961. An offence which carries a 5 year maximum penalty.
7. It is clear from what is before the Court that this was an organised systematic and large scale theft of diesel by defendants from their employers. The first, second and third defendants all held trusted positions and they used it to swindle their employers out of substantial sums. There is no doubt all defendants benefited from this elicit enterprise. As noted by the prosecution the thefts were pre-planned and involved an element of conspiracy in its execution. Clearly imprisonment is required to mark the seriousness of the criminal offending and to send an appropriate message to the defendants and to the community.
8. In sentencing the first three defendants I find there is no basis for distinguishing the penalties to be imposed on each of them. They were part of the same criminal enterprise; they may have played different roles in the matter but their criminal culpability is the same
9. Prosecution have sought a 6½ year prison term as a start point for your sentencing gentlemen. But I consider that too high because the maximum penalty for your offence is 7 years in prison. But I agree a high start point is required to accurately reflect the criminal nature of the enterprise and what you did.
10. I will therefore start sentencing at 6 years imprisonment. As your counsels have pointed out you are entitled to certain deductions which the court will now make. Firstly for your guilty plea I make a quarter of sentence deduction because that has saved a considerable amount of time and because it also reflects your remorse in this matter. That is a deduction of 18 months, leaves a balance of 54 months. Each of you have good backgrounds as outlined by your counsels and in the pre-sentence reports. You all have clean criminal records. There are good character references that have been placed before the Court for each of you. For those matters I deduct a further 6 months from your sentence, leaves 48 months. No further deductions can be made in respect of your sentences.
11. In respect of this matter as a total sentence for all charges, each of you defendants first, second and third is convicted and sentenced to 4 years in prison. Remand in custody time, however, is to be deducted from that 4 year period.
12. The fourth defendant is charged with only one charge reflecting the fact the she received only one load of the stolen diesel. Her culpability therefore is much lesser. Having given due consideration to the circumstances of her offending and what is in her pre-sentence report as well as Lusia what your lawyer has said on your behalf and noting that the prosecution are not seeking a prison term penalty. I have come to the conclusion your matter can be dealt with by way of a monetary penalty. But make no mistake Lusia what you did was serious because without people like you people who steal would have nowhere to sell their stolen goods. This should be a very valuable lesson to you because next time I doubt you will receive leniency from the court. Your counsel has on your behalf indicated you are able to make restitution which means that you are able to meet monetary penalties.
13. You will therefore be convicted and ordered to pay the following sums: firstly a fine of $500.00; secondly court costs of $100.00; police costs of $100; probation office costs of $100. That total sum of $800.00 is to be paid by 4:00 p.m. tomorrow, Tuesday 11 November in default 6 months imprisonment.
14. In relation to restitution you are ordered to make full restitution of $2,054.24 payable to the probation office as restitution. That is to be paid by 12:00 p.m. Friday this week, 14 November in default you will serve a further 6 months imprisonment.
    

JUSTICE NELSON