Police v Leuelu [2014] WSSC 78 (1 December 2014)

IN THE SUPREME COURT OF SAMOA
Police v Leuelu and Lolesio [2014] WSSC 78

Case name:	Police v Leuelu and Lolesio
Citation:	[2014] WSSC 78
Decision date:	1 December 2014
Parties:	Police v Tuitamaga Leuelu and Sa Ma’amu Lolesio
Hearing date(s):	10 & 17 November 2014
File number(s):	S2343/14, S2399/14, S2455/14-S2534/14
Jurisdiction:	Criminal
Place of delivery:	Mulinuu
Judge(s):	Chief Justice Patu Falefatu Sapolu
On appeal from:
Order:	- Tuitamaga Leuelu is convicted and sentenced to 3 years and 2 months
	- Sa Ma’amu Lolesio is convicted and sentenced to 2 years and 9 months.
Representation:	L Su’a-Mailo for prosecution Accused in persons
Catchwords:	theft as a servant – maximum penalty – reproducing – documents with intent to deceive,
Words and phrases:	Misappropriation, sentence
Legislation cited:	Crimes Act 1961
Cases cited:
Summary of decision:	Theft as a servant – maximum penalty – reproducing documents - intent to deceive – joint charges – guilty plea at the earliest opportunity – intended recipients – jointly misappropriated – guilty to the charges – first offender – aggravating features – totality principle – mitigating features – sentences to be concurrent – charge of false accounting – imprisonment This case involves two accused jointly charged on sixteen counts of theft as a servant.[1] In addition to these charges, the first named accused Tuitamaga Leuelu also appears on six separate charges of theft as a servant and twenty-two charges of reproducing documents with intent to deceive.[2] The second named accused Sa Ma’amu Lolesio appears on sixteen joint charges of theft as a servant, and separately on twenty two charges of false accounting.[3] Each of the accused pleaded guilty at the earliest opportunity to the charges against them. Chief Justice Sapolu considered the following aggravating features in relation to the offending, (a) the serious breach by both the accused who held financial positions of their employer’s trust (b) the number of times these offences were committed, (c) the length of time these offences were committed (d) the degree of planning and pre-meditation that must have been involved, and (e) the total amount of money that was misappropriated. In respect of the mitigating features His Honour gave very little weight to the small sum of $160 that the first accused has repaid. In addition, the second accused was cooperative with the police during investigation. In relation to the offence, Chief Justice Sapolu held there is no aggravating feature but he considered several mitigating features in relation to the offending. His Honour took into consideration (a) the fact that both accused are first offenders and had been persons of good character prior to the commission of the offences (b) the apologies by the accused to their former employer which were accepted, and (c) the early pleas of guilty by the accused to the charges against them. The accused Tuitamaga Leuelu is sentenced to 3 years and 2 months imprisonment, and the accused Sa Maamu Lolesio is sentenced to 2 years and 9 months imprisonment. All sentences against each accused to be concurrent.

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D
TUITAMAGA LEUELU female of Moamoa and Satufia Satupaitea and SA MA’AMU LOLESIO female of Faleula and Tuanai.

Accused

Counsel: L Su’a-Mailo for prosecution

Accused in persons

Sentence: 1 December 2014

The charges

1. The first named accused Tuitamaga Leuelu appears for sentence on sixteen joint charges and six individual charges of theft as a servant, contrary to s.161 of the Crimes Act 1961, each of the charges carrying a maximum penalty of 10 years imprisonment pursuant to s.165 (e) of the Act, twenty two charges of reproducing documents with intent to deceive, contrary to s.196 (1)(6) of the Crimes Act 2013, each of the charges carrying a maximum penalty of 7 years imprisonment, and twenty two charges of using reproduced documents with intent to deceive, contrary to s.197 of the Act, each of the charges carrying a maximum penalty of 7 years imprisonment.
2. The second named accused Sa Ma’amu Lolesio appears for sentence on sixteen joint charges of theft as a servant, contrary to s.161 of the Crimes Act 2013, each of the charges carrying a maximum penalty of 10 years imprisonment pursuant to s.165 (e) of the Act, and twenty two charges of false accounting, contrary to s.198 of the Act, each of the charges carrying a maximum penalty of 7 years imprisonment.
3. Each of the accused pleaded guilty at the earliest opportunity to the charges against her.

The offending

4. The pre-sentence report on the first named accused Tuitamaga Leuelu (Tuitamaga) shows that at the material times she was employed at Frankies Co Ltd as manager of the company’s Money Transfer. She started employment with this company at the beginning of 2014. The pre-sentence report on the second named accused Sa Ma’amu Lolesio (Sa) shows that at the material times she was employed at Frankies Co Ltd as an accounts clerk at the company’s Money Transfer. She started employment with the company in 2012.
5. The prosecution’s summary of facts as confirmed by both accused shows that a float of $26,000 is always kept at the company’s Money Transfer to pay customers monies remitted from New Zealand to the intended recipients in Samoa. What happened in this case was that the accused Tuitamaga was responsible for paying to the intended recipients in Samoa monies remitted by customers in New Zealand. A receipt is then issued to each recipient at the time money is paid out. At the end of each day, Tuitamaga would prepare a daily pay out summary setting out all the monies paid out during the day. This daily pay out summary is then given to the accused Sa who was responsible for checking the summary against the receipts that had been issued and the cash that remained in the float. When Sa is satisfied that the transactions and information prepared by Tuitamaga are correct and accurate, she would then prepare a cheque to restore the amount of the float to $26,000 for the next day.
6. The prosecution’s summary of facts as confirmed by both accused shows that a float of $26,000 is always kept at the company’s Money Transfer to pay customers monies remitted from New Zealand to the intended recipients in Samoa. What happened in this case was that the accused Tuitamaga was responsible for paying to the intended recipients in Samoa monies remitted by customers in New Zealand. A receipt is then issued to each recipient at the time money is paid out. At the end of each day, Tuitamaga would prepare a daily pay out summary setting out all the monies paid out during the day. This daily pay out summary is then given to the accused Sa who was responsible for checking the summary against the receipts that had been issued and the cash that remained in the float. When Sa is satisfied that the transactions and information prepared by Tuitamaga are correct and accurate, she would then prepare a cheque to restore the amount of the float to $26,000 for the next day.
7. As the prosecution’s summary of facts also shows, the total amount of the money which was jointly misappropriated by Tuitamaga and Sa on sixteen separate occasions was $48,044.10 and the total amount misappropriated by Tuitamaga alone was $7,702.10. In other words, Tuitamaga was involved in the misappropriation of a total of $55,746.20.

The accused Tuitamaga Leuelu

8. The accused Tuitamaga is 39 years old as shown from her pre-sentence report. She is from Moamoa and Satufia, Satupaitea. She is married with four children. She finished school at Year 13. She was employed in several jobs before she started employment with Frankies Co Ltd at the beginning of 2014.
9. Tuitamaga told the probation service that she used some of the money she took for loans to other fellow employees and some of the money was used to buy a car for her family. She has apologised to her former employer and her apology was accepted. She is currently unemployed but has paid back $160.
10. Tuitamaga is also a first offender and the testimonials from her husband and the pastor of her church show that she had been a person of good character prior to the commission of these offences. She has pleaded guilty to the charges against her at the earliest opportunity.

The accused Sa Ma’amu Lolesio

11. The accused Sa is 26 years old as shown from her pre-sentence report. She is from Faleula and Tuanai. She is a solo mother with a young child. She finished secondary school at Year 13 and then attended the National University of Samoa from which she graduated with a diploma in business. She started employment with Frankies Co Ltd in 2012. At present, she is without employment.
12. Sa explained to the probation service that she was looking for a way to buy a car for her family but could not find a loan. Part of the money she took was used to buy a car for her family. She also told the probation service that some of the money she took was for loans to other fellow employees.
13. Sa is a first offender and it appears from the testimonial from her mother that she had been a person of good character prior to the commission of these offences. She was co-operative with the police during their investigations. She has also apologised to her employer and her apology was accepted. She has also pleaded guilty to the charges against her at the earliest opportunity.

The aggravating and mitigating features

14. The aggravating features in relation to this offending are: (a) the serious breach by the accused who held financial positions of their employer’s trust, (b) the number of times these offences were committed, (c) the length of time these offences were committed, (d) the degree of planning and pre-mediation that must have been involved, and (e) the total amount of money that was misappropriated bearing in mind that Tuitamaga took about $7,700 more than Sa. I also take into account as an aggravating feature in respect of Tuitamaga the fact that she had only started employment with Frankies at the beginning of 2014 but this offending started in April.
15. In respect of mitigating features relating to the offending, I give very little weight to the small sum of $160 that Tuitamaga has repaid to her former employer. On the other hand, Sa’s cooperation with the police in their investigation is an important mitigating feature in relation to her offending.
16. In relation to the accused as offenders, there is no aggravating feature but there are several mitigating features. These mitigating features are: (a) the fact that both accused are first offenders and had been persons of good character prior to their commission of these offences, (b) the apologies by the accused to their former employer which were accepted, and (c) the early pleas of guilty by the accused to the charges against each of them.

Discussion

17. In respect of the accused Tuitamaga, I will apply the totality principle and take 5 years as the starting point for sentence. I will deduct 8 months for her previous good character and apology. That leaves 4 years and 4 months. I will deduct a further one year and one month for her early guilty plea. That leaves 3 years and 2 months.
18. In respect of the accused Sa, I will also apply the totality principle and take 4 years and 9 months as the starting point for sentence. I will deduct 8 months for her previous good character and apology. That leaves 4 years and one month. I will further deduct a further one year and four months for earl guilty plea. That leaves 2 years and 9 months.

The result

19. In respect of Tuitamaga, she is sentenced to 3 years and 2 months imprisonment on each of the charges of theft as a servant which involves $4,000 or more; 3 years imprisonment on each of the charges of theft as a servant which involves $2,000 or more but less than $4,000; 2 years imprisonment on each of the charges which involves $1,000 or more but less than $2,000; and 6 months imprisonment on each of the charges which involves less than $1,000. All of these sentences are to be concurrent.
20. In respect of the charges of reproducing documents with intent to deceive, Tuitamaga is sentenced to 3 years imprisonment on each of the charges which involves $4,000 or more; 2 years and 9 months imprisonment on each of the charges which involves $2,000 or more but less than $4,000; 2 years imprisonment on each of the charges which involves $1,000 or more but less than $2,000; and 3 months imprisonment on each of the charges which involves less than $1,000. All of these sentences are to be concurrent.
21. In respect of the charges of using reproduced documents with intent to deceive, I impose the same sentences on Tuitamaga as in para 19 above in relation to the charges of reproducing documents with intent to deceive against her. These sentences are also to be concurrent.
22. All of the sentences against Tuitamaga are to be concurrent so that in effect she will serve a total sentence of 3 years and 2 months imprisonment.
23. In respect of Sa, she is sentenced to 2 years and 9 months imprisonment on each of the charges of theft as a servant which involves $4,000 or more; 2 years and 6 months imprisonment on each of the charges of theft as a servant which involves $2,000 or more but less than $4,000; 18 months imprisonment on each of the charges of theft as a servant which involves $1,000 or more but less than $2,000; and 3 months imprisonment on each of the charges which involves less than $1,000. All these sentences are to be concurrent.
24. In respect of the charges of false accounting, Sa is sentenced to 2 years imprisonment on each charge. All these sentences are also to be concurrent.
25. All of the sentences against Sa are to be concurrent so that in effect she will serve a total sentence of 2 years and 9 months imprisonment.

Honourable Chief Justice Sapolu

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^[1]s.161 Crimes Act 1961, maximum penalty of 10 years imprisonment pursuant to s.165 (e) of the Crimes 1961
^[2]s.196(1)(6) Crimes Act 2013, each charges carries a maximum penalty of 7years imprisonment
^[3]s.198 Crimes Act 2013, maximum penalty of 7 years imprisonment