Police v Faasoo [2014] WSSC 44 (20 August 2014)

SUPREME COURT OF SAMOA

Police v Fasoo & Others [2014] WSSC 44

Case name: Police v Faasoo, Sinaumea and Lino

Citation: [2014] WSSC 44

Decision date: 20 August 2014

Parties: POLICE Prosecution AND AMATO FAASOO male of Safa’i, Savaii, and Siusega, FILEMU LEMANA SINAUMEA male of Safotu, Savaii, and Nofoalii and OKEI LINO male of Fagalii-uta. Accused

Hearing date(s):

File number(s): S1852/14, S1864/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
G Nelson for prosecution
Accused in person

Catchwords:
Theft, sentence, aggravating and mitigating features

Words and phrases:

Legislation cited:
Crimes Act 2013 s.161

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1852/14, S1864/14

BETWEEN

P O L I C E
Prosecution

A N D

AMATO FAASOO male of Safa’i, Savaii, and Siusega, FILEMU LEMANA SINAUMEA male of Safotu, Savaii, and Nofoalii and OKEI LINO male of Fagalii-uta.
Accused

Counsel:
G Nelson for prosecution
Accused in persons

Sentence: 20 August 2014

S E N T E N C E

The charges

1. The accused appear for sentence on two joint charges of theft, contrary to s.161 of the Crimes Act 2013, while they were employed by Bluebird Lumber and Hardware Company. Each of the two charges carries a maximum penalty of 10 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. At the time of the offending, all the three accused were employed by Bluebird Lumber and Hardware Company at Saleufi. The accused Amato Faasoo and Filemu Lemana were responsible for loading and unloading materials onto and from the company’s truck. The accused Okei Lino was a fork lift driver for the company.
3. One day at the beginning of February 2014, the accused Amato saw a man strolling around the company’s hardware section looking at the building materials like someone who wants to buy something but trying to make up his mind. Amato then walked over and asked him whether he needed any help. The man replied he wanted to know the price of the plywood timbers. They then engaged in a conversation. The man then asked Amato if he can supply $15,000 worth of building materials and the money will be given straight to him. Amato replied that he needed to talk to his two friends who are the other two accused in this matter. Amato and this man then agreed that they would meet at the house of this man after work. After work that day, Amato and Okei went to the house of this man and had a short meeting with him. It was agreed at the meeting that Amato and Okei will arrange for the supply of $15,000 worth of building materials and once it was ready they will contact this man to come over and take delivery of the building materials.
4. At noon of the following day when the hardware section of the company was left unattended, the man was contacted to come over and take delivery of the building materials from the company’s premises at Saleufi. The man then sent over a truck and uplifted the timbers worth $8,662. He paid over only $3,000 in cash which the accused divided amongst themselves. On a subsequent day in the same month of February, another load of timbers worth $3,000 was again supplied to the same man by the three accused without the knowledge and authority of their employer. The accused received $1,500 which they also divided amongst themselves.

The accused

5. The accused Amato is 53 years old. He is married with six children. He had a low level of education leaving school at Year 4. When his family moved from Savaii to Upolu he worked in several jobs until he found employment with Bluebird Lumber and Hardware where he has been working for the last 25 years.
6. Amato is a first offender and it appears from the testimonials from his wife and parish priest that he had been a person of good character prior to the commission of these offences.
7. As it appears from the pre-sentence report on Amato, he was the most senior employee of the three accused. He initiated this offending and got the other two accused involved to facilitate the offending. He also admitted to the probation service that for the first supply of timbers, he was given $4,000 by the man who asked for the timbers. He then gave $500 each to the accused Filemu and Okei. He also told the probation service he gave $500 to the security at the company’s premises. In other words, Amato kept $2,500 for himself. So he gained the most from this offending.
8. The pre-sentence report also shows that Amato went twice with a umu to the owner of Bluebird Lumber and Hardware to apologise, but the owner declined to see him.
9. The accused Filemu is 33 years old. He is married with five children. He left school at Year 11. He started working for Bluebird Lumber and Hardware in 2005 as a shop assistant.
10. He is a first offender. Testimonials from his wife, the pastor of his church, and the pulenuu of his village show him to have been a person of good character prior to the commission of these offences.
11. As the pre-sentence report also shows, Filemu was not the initiator of this offending but the accused Amato. He also received a much lesser share of the money than Amato. In total, he received $800.
12. The pre-sentence report also shows that Filemu went twice with a umu to the owner of the Bluebird Lumber and Hardware to apologise but the owner declined to see him.
13. The accused Okei is 49 years old. He is married with three children. He started working for the complainant company in 2005. At the time of this offending, he was employed as a fork lift driver.
14. Okei is a first offender. It appears from the testimonials from his wife and pastor of his church that he had been a person of good character prior to the commission of these offences.
15. As the pre-sentence report shows, Okei was not the initiator of this offending but the accused Amato. He also received a much lesser share of the money than Amato. He also went twice with a umu to the owner of the complainant company to apologise but the owner declined to see him.

The aggravating and mitigating features

16. In relation to the offending, the aggravating features are: (a) the breach by the accused of their employer’s trust and (b) the total value of the timbers that were stolen. I would also take into account the different degree of involvement of each accused in this offending and the extent of the gain each of them made from it.
17. There is no aggravating feature in relation to any of the accused as offender. But there are mitigating features personal to each of them. These are: (a) their previous good characters and (b) their pleas of guilty to the charges at the earliest opportunity.

Discussion

18. Having regard to the totality of the offending, the need for deterrence for this type of offending, the aggravating features of the offending, the degree of involvement in the offending of each accused, and the extent of the gain received by each accused from the offending, I will take 2½ years as the starting point for sentence in relation to the accused Amato. I will then deduct 3 months for his previous good character and that leaves 27 months. I will further deduct a 1/3 discount for his early plea of guilty, and that leaves 18 months.
19. For the accused Filemu, I will take a starting point of 21 months given his degree of involvement in the offending and the extent of the gain he made from it. I will then deduct 3 months for previous good character and that leaves 18 months. I will further deduct a 1/3 discount for his early plea of guilty and that leaves 12 months.
20. For the accused Okei, I will also take a starting point of 21 months given his degree of involvement in the offending and the extent of the gain he made from it. I will then deduct 3 months for previous good character and that leaves 18 months. I will further deduct a 1/3 discount for his early plea of guilty and that leaves 12 months.

The result

21. The accused Amato is sentenced to 18 months imprisonment on each of the two charges against him. Both sentences to be concurrent.
22. The accused Filemu is sentenced to 12 months imprisonment on each of the two charges against him. Both sentences to be concurrent.
23. The accused Okei is also sentenced to 12 months imprisonment on each of the two charges against him. Both sentences to be concurrent.
24. Any time that any of the accused has already spent in custody is to be further deducted from his sentence.
    

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CHIEF JUSTICE