Police v Tomane [2015] WSSC 1 (15 January 2015)

SUPREME COURT OF SAMOA
Police v Tomane [2015] WSSC 1

Case name:	Police v Tomane
Citation:	[2015] WSSC 1
Decision date:	15 January 2015
Parties:	POLICE v TATAVA TOMANE
Hearing date(s):
File number(s):	S587/14-S588/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu
On appeal from:
Order:	- All sentences are to be concurrent so that the accused will serve a finite sentence of 2 years imprisonment. - Time spent in custody pending the outcome of this matter is to be deducted from that sentence.
Representation:	F Lagaaia for prosecution Accused in person
Catchwords:	Forgery and theft – maximum penalties – totality principle, aggravating and mitigating features - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.194 s.161 s.165 (c);s.165 (d)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

AND

TATAVA TOMANE female of Vailele and Tulaele
Accused

Counsel: F Lagaaia for prosecution

Accused in person

Sentence: 15 January 2015

S E N T E N C E

The charges

1. This case involves six charges of forgery, seven charges of theft, three complainants, and eight victims. In relation to the first complainant, the accused Tatava Tomane, a 28 year old female of Tulaele and Vaitele Fou, appears for sentence on four charges. These are two charges of forgery, contrary to s.194 of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment; one charge of theft, contrary to s.161 of the Act, which carries a maximum penalty of 2 years imprisonment under s.165 (c); and one charge of theft, contrary to s.161, which carries a maximum penalty of one year imprisonment under s.165 (d).
2. In relation to the second complainant, the accused Tatava Tomane also appears for sentence on two charges of forgery under s.194, each of which carries a maximum penalty of 10 years imprisonment; one charge of theft under s.161, which carries a maximum penalty of 2 years imprisonment under s.165 (c); and one charge of theft under s.161, which carries a maximum penalty of one year imprisonment under s.165 (d).
3. In relation to the third complainant, the accused Tatava Tomane appears for sentence on two charges of forgery, each of which carries a maximum penalty of 10 years imprisonment; two charges of theft under s.161, each of which carries a maximum penalty of 7 years imprisonment under s.165 (b); and one charge of theft under s.161 which carries a maximum penalty of 2 years imprisonment under s.165(c).
4. To all six charges of forgery and seven charges of theft, the accused pleaded guilty.

The complainants and the victims

5. The first complainant is a 24 year old female schoolteacher from Siusega; the second complainant is the ANZ Bank; and the third complainant is the Westpac Bank.
6. Of the eight victims in this case, five of them were people whose signatures were forged by the accused to make it possible for her to withdraw monies from their bank accounts. Of these five people, three of them are schoolteachers. Two of these schoolteachers were teaching with the accused at the same school at the time of the offending. The third schoolteacher had previously taught with the accused at a different school. The fourth victim is a female friend who had attended National University with the accused. The fifth victim is the accused’s own mother. The other three victims are the banks which were defrauded by the accused and had to repay the monies deceitfully withdrawn by the accused from their customers’ accounts into those customers’ accounts.

The offending

(a) First complainant

7. In relation to the first complainant, the accused, on Wednesday 9 April 2014, went to the branch of the Samoa Commercial Bank at Vaitele, forged the signature of the first complainant on a withdrawal slip without the knowledge or authorisation of the first complainant, and withdrew $60 from the first complainant’s savings account. The accused then took the money for herself.
8. On Thursday 10 April 2014, the accused went to the branch of the Samoa Commercial Bank at Maluafou and asked one of the tellers to check the first complainant’s savings account, whether her bank loan has been transferred to this account. When the teller confirmed that the transfer has been made, the accused produced a withdrawal slip for $999 on which she had forged the signature of the first complainant without the knowledge or authorisation of the first complainant. When the teller compared the signature on the withdrawal slip with the first complainant’s signature in the bank’s system, the two signatures did not match. The teller then handed back the withdrawal slip to the accused and asked her to sign again. The accused again signed the first complainant’s name but it still did not match the first complainant’s signature in the bank’s system. The teller then referred the matter to her supervisor who instructed to ask the customer (the accused) to produce her bank book. The accused replied that her account is an ATM account. The accused then signed the withdrawal slip for the third time and this signature matched the first complainant’s signature in the bank’s system. The withdrawal slip was then processed and the amount of $999 was debited to the first complainant’s savings account and given to the accused who took the money for her own use.
9. On Saturday 12 April 2014, the first complainant went to a Samoa Commercial Bank ATM outlet to withdraw some money. To her surprise, she found that there were insufficient funds in her account. Then on Monday 14 April 2014, the first complainant enquired at the main branch of the Samoa Commercial Bank about the balance of her account. She was advised that she has already made withdrawals of $60 and $999. The matter was subsequently reported by the first complainant to the police and on 23 May 2014 the accused was apprehended by the police.
10. The total amount stolen by the accused in this instance was $1,059.

(b) The second complainant

11. In relation to the second complainant which is the ANZ Bank, the accused on Wednesday 22 January 2014, went to the branch of the ANZ Bank at Salelologa, Savaii, and presented to one of the tellers a withdrawal slip for $100 on which she had forged the signature of a bank customer without the knowledge or authorisation of that customer. The withdrawal was processed and the sum of $100 was given to the accused which she then took.
12. Whilst still inside the bank, the accused moved to a different queue served by a different teller. When it was her turn to be served by that teller, the accused produced an account number which belongs to another customer of the bank and asked for the balance of that account. Upon being told about the balance in that account, the accused filled in a withdrawal slip for $740 and signed the name of the customer who is the owner of the account on the withdrawal slip without the knowledge or authorisation of that customer. When the teller compared the signature on the withdrawal slip with the customer’s signature in the bank system, the two signatures were different. The teller then consulted a supervisor who instructed to get the customer (the accused) to sign her name again on the withdrawal slip. The accused signed again and her second signature matched the real customer’s signature in the bank system. The withdrawal slip was then processed and the amount of $740 was given to the accused which she took.
13. When the fraud in this matter was discovered, the bank repaid the two customers’ monies and reported the matter to the police.

(c) The third complainant

14. In respect of the third complainant which is the Westpac Bank, the accused went to the bank on an unknown date and applied for a new ATM card for her mother’s account at the bank without the knowledge or authorisation of her mother. She presented herself as the true owner of the account giving the name of her mother on the account as her name. On Wednesday 4 December 2013, the accused went back to the bank and uplifted the new ATM card. On the same day, the accused went to one of the bank’s ATM outlets and withdrew $710 using the new ATM card without the knowledge or authorisation of her mother.
15. On Friday 20 December 2013, the accused went to the branch of the Westpac Bank at Salelologa, Savaii, and filled in a withdrawal slip for $1,290 from her mother’s account, and then signed the name of her mother on the slip without her mother’s knowledge or authorisation. When the teller checked the signature on the withdrawal slip, it was found that there was no such signature in the bank’s system. When the teller asked for identification, the accused lied that she had forgotten it. The teller then told the accused that the withdrawal slip cannot be processed without proper identification. The accused then left the bank and a few hours later she returned with a Samoa Ports Authority photo ID with her mother’s full name on it. The withdrawal slip was then processed and the amount of $1,290 was given to the accused which she took.
16. On 29 January 2014, the accused went to the branch of the Westpac Bank at Vaitele and produced to a teller a withdrawal slip for the withdrawal of $2,500 from her mother’s account. The accused had forged her mother’s signature on the withdrawal slip without her mother’s knowledge or authorisation. When the teller compared the signature on the withdrawal slip with the signature in the bank’s system, there was a slight difference in the two signatures. The accused was asked to sign again on the withdrawal slip. Her second signature matched the signature in the bank’s system. The withdrawal slip was then processed and the sum of $2,500 was given to the accused which she took.

The accused

17. The pre-sentence report shows that the accused had a good level of education having graduated with a diploma in education in 2005 from the National University of Samoa. She then took up a career in teaching. As earlier mentioned, of the five people whose signatures were forged by the accused and had monies withdrawn from their bank accounts, three of them are schoolteachers. Two of these schoolteachers were teaching with the accused at the same school at the time of the offending. The third schoolteacher had previously taught with the accused at a different school.
18. The present offences were committed over a period of about five months, from 4 December 2013 to 10 April 2014. In relation to the offences committed by the accused in December 2013 and January 2014, the accused was apprehended by the police on 4 February 2014 and taken to the Apia police station where she was cautioned and interviewed by the police. However, that did not deter the accused. On 9 and 10 April 2014, she committed the same types of offences again when she forged two withdrawal slips and withdrew monies from the account of the first complainant at the Samoa Commercial Bank.
19. The total amount of money stolen by the accused was $5,689 of which the total amount of $4,500 was withdrawn from the bank account of her mother. Only $60 has been repaid to one of the schoolteacher victims when that amount was automatically deducted from the accused’s salary.
20. As it also appears from the pre-sentence report, the accused told the probation service that she committed these offences in order to obtain money to seduce the father of her newborn baby to divorce his wife and marry her instead. This is not a healthy motive for stealing monies from other people’s bank accounts. The accused also has a child from a previous de-facto relationship with a different man.
21. The accused has apologised to her mother and her parents have accepted her apology. The accused’s father told the probation service that her daughter is a person of good caliber, goes to church regularly, and helps out financially with family necessities. The testimonial from the principal of the school where the accused was teaching at the time of this offending show the accused to have been a good and reliable teacher. However, the accused has previous convictions for forgery, false pretence, and theft in 2010 for which she was placed on supervision for 15 months. It would seem that the accused is a person with a split personality – very good sometimes and very bad at other times.

The aggravating and mitigating factors

22. In relation to this offending, there are several aggravating factors. A high level of planning, pre-meditation, and deception was obviously involved in this offending. This offending also involved four different incidents of forgery and theft and one separate incident of theft, all committed during a period of about five months. There were also multiple victims. These were the three banks involved and which had to repay into their customers accounts the monies which the accused had dishonestly withdrawn as well as the five people whose bank accounts were defrauded by the accused. This offending also involved breach by the accused of the trust of her mother, a friend she went to university with, and the two schoolteachers she was working with at the material time. The accused’s motive for committing these offences was to use the money to please the man she was having an affair with so that he would divorce his wife and marry her. There is no mitigating factor in relation to the offending.
23. In relation to the accused as offender, her previous convictions for forgery, false pretence, and theft in 2010 are an aggravating factor. In terms of mitigating factors relating to the accused as offender, there is no mitigating factor except for her guilty plea. I do not consider the payment of $60 to one of the victims which was automatically deducted from the accused’s salary as sufficient to be a mitigating factor. Anyhow, it is a very small repayment given the total amount of money stolen by the accused. I also do not consider the apology by the accused to her parents and the acceptance of that apology by her parents to be a genuine sign of remorse and therefore a mitigating factor. I also have reservations about the sincerity of such an apology and the willingness of the parents to forgive the total amount of $4,500 stolen by the accused from her mother’s bank account without any form of repayment.

Discussion

24. I will take the lead charge for sentence as those relating to forgery because they carry the maximum penalty of 10 years imprisonment on each charge.
25. Having regard to the maximum penalty for forgery, the totality principle, the need for deterrence in this type of case, and the aggravating factors relating to the offending, I will take 2 years as the starting point for sentence. I will add on 6 months for previous convictions. That increases the starting point to 2 ½ years. I will deduct 7 months for the guilty plea. That leaves 1 year and 11 months.

The result

26. (a) For each of the six charges of forgery, the accused is sentenced to 1 year and 11 months imprisonment. These sentences are to be concurrent.
    • (b) For each of the two charges of theft which involved more than $1,000, the accused is sentenced to 12 months imprisonment. Both sentences to be concurrent.
    • (c) For each of the three charges of theft which involved more than $500 but less than $1,000, the accused is sentenced to 10 months imprisonment. All three sentences to be concurrent.
    • (d) For each of the two charges of theft which involved less than $500, the accused is sentenced to 3 months imprisonment. Both sentences to be concurrent.
    • (e) All of the above sentences are to be concurrent so that the accused will serve a finite sentence of 2 years imprisonment.
27. The time that the accused has been in custody pending the outcome of this matter is to be deducted from that sentence.
    

Honourable Chief Justice Sapolu