Police v Kaleopa [2015] WSSC 121 (9 April 2015)

THE SUPREME COURT OF SAMOA
Police v Kaleopa [2015] WSSC 121

Case name:	Police v Kaleopa
Citation:	[2015] WSSC 121
Decision date:	9 April 2015
Parties:	Police (prosecution) and Samuelu Kaleopa, male of Tufulele (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	Three years and four months imprisonment
Representation:	P Chang and O Tagaloa for the Prosecution Defendant appears in Person
Catchwords:	theft as a servant – false accounting –
Words and phrases:
Legislation cited:	Crimes Ordinance 1961
Cases cited:	Police v Uili Tialino Police v Jeffery Peni, Police v Joyce Wilson Police v Tuitamaga Leuelu & Others R v Hessell [2009] NZCA 450
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SAMUELU KALEOPA
male of Tulaele
Defendant

Counsel:
P Chang and O Tagaloa for the Prosecution
Defendant appears in Person

Sentence: 9 April 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Mr Kaleopa, you appear for sentence, having pleaded guilty to 5 charges of theft as a servant and 5 charges of false accounting. You were employed as the Payroll Officer for Samoa National Provident Fund and your duties included preparing the pension payroll, preparing cheques for payment of pensioners and the delivery of cheques to three banks (Westpac, Samoa Commercial Bank and the National Bank of Samoa). Those banks then dispense the pension into the pensioner’s account. Money was also dispensed under your authority to the ANZ for distribution but that was not done via cheque as there was an arrangement to do that electronically.
2. However, on 5 separate occasions, you prepared cheques on the Fund payable to the ANZ, claiming that that money was owed to the pensioners. Once the cheques had been signed, you then altered them (and those are the false accounting charges) by adding the account number of your church to three of the cheques and your own account number to the other two. In respect of the money that was then paid into the church, you were, at the time, the Treasurer of the EFKS Church at Tulaele, and you then, in that capacity, accessed the church account and withdrew the money you had deposited into it for your own use.
3. On each of those 5 occasions, which spanned from 26 October 2011 to 5 December 2012, significant amounts were involved, all of them in the vicinity of $23,000 and the total amount of money that you stole from your employer, from the Provident Fund, was $116,660.50. As I said, your offending spanned a period of 14 months, with two incidents in November 2011, an incident in June 2012, November 2012 and December 2012, and your offending only came to light through an internal auditing process.
4. You explained to the Probation Officer as to why you did this; that it must have been greed. You said that you, yourself, were the victim of an international scam where you were conned into believing that you would get a significant amount of money if you made a payment and it was, in partly, as a consequence of that scam that you took the money.
5. You stand before the Court today not represented by legal counsel. You have quietly conveyed to me a small number of matters that you wish me to have regard to. You make no excuses for your offending and you can only attribute your behaviour, in your words, “the devil in [you]” and also to being caught up in this scam.
6. The starting point for such serious offending, as you will appreciate, Mr Kaleopa, is a significant term of imprisonment, and to determine what the starting point should be I have regard to the following six factors: (1) this was obviously planned or premeditated offending. This did not happen on the spur of the moment. You planned how you would get the money; you planned where the money would be deposited; and when it went into the church, you then planned to withdraw it and you did. (2) However, I do not regard it as particularly sophisticated offending, although, the fact that it did involve the church account aggravates the situation. (3) It took place over 14 months, on 5 separate occasions; (4) a significant amount was stolen; and (5) none of it has been repaid. Frankly, given the inevitable term of imprisonment, the fact that you will have convictions now for dishonest offending, the chances of you being in a position to repay this money in the future must be very small indeed.
7. (6) Clearly, this has had an impact on the victim which is really the people of Samoa who have contributed to the Fund. The Counsel for SNPF has provided a Victim Impact Statement. From the loss of this amount there are no other significant financial losses, but the one thing that comes through in her statement is the effect on the reputation of the Fund. It will affect people’s decision to pay into the Fund if they feel that their money is not adequately protected and behaviour such as your really strikes at the heart of the need for the SNPF to demonstrate that the Fund is safe and secure for the public benefit.
8. Secondly, of course, what always happens when there is theft by a servant is that it can lower staff morality generally (and it has done that here) and it creates an environment, really, Mr Kaleopa, where everybody is looking over their shoulder; where everyone falls under suspicion – so that adverse or negative impact falls on all of the honest and hardworking employees at the Fund.
9. Finally, there is the issue of breach of trust. For myself, I find that a breach of trust is implicit in the offending. The offender is charged with theft as a servant. The charge, in itself, implies a breach of trust but in this particular case, it is also an additional aggravating feature because of the longevity of your service – you have been there for 17 years and you were obviously held in very high regard by the Managers. It is likely that because of that, your actions were, in effect, almost beyond suspicion and question and no doubt that created an environment where you could perhaps more easily get away with this than someone less highly regarded.
10. Now at the time of your offending, the maximum penalty for theft as a servant was 7 years; the maximum penalty for false accounting was 5 years. I intend to approach the setting of the starting point by taking a totality approach – in other words, looking at all of your conduct and fixing the starting point from there. I have had regard to other cases where an offender committed an offence contrary to the Crimes Ordinance 1961. I observe (more for the Attorney General’s benefit than yours, Mr Kaleopa) the plea, in effect, from the Attorney General to this Court to review maximum penalties and starting points (and I am referring to paragraphs 12 and 13 of the Attorney General’s submissions). The Attorney General notes a concern that the Courts appear to have disregarded the increase in penalty between the Crimes Ordinance and the Crimes Act. However, where the offending is committed contrary to the Crimes Ordinance it would be wholly inappropriate and, frankly, unhelpful for this Court, on this occasion, to conduct that sort of review. That needs to happen where there is offending under the Crimes Act.
11. Now when I look at other similar cases, there are many ways that behaviour can be similar; firstly, as to the amount. In the case of Police v Uili Tialino, an amount of $114,000 was taken in 18 separate offences over a period of 4 months. The money was taken from the cash collection and not accounted for, and it is likely that the individual involved was not perhaps in such a significant position of autohtiy and trust as you were. The starting point for that offending was 6 years. Police v Jeffery Peni, 61 separate offences where he withheld or stole cash that came into his possession in the course of employment and also falsified the accounting records to reflect the fact that he had repaid some loans on his vehicle when in fact he had not. The total amount he defrauded his employer was $113,000 and the starting point was also one of 6 years.
12. Conduct can also be similar in terms of the actual dishonesty or dishonest conduct and I have considered the decision of Police v Joyce Wilson. This offending occurred under the Crimes Act. The amount that Ms Wilson defrauded her employer, by falsifying cheques, was $228,000 over 109 separate offences. Now that was a far greater amount defrauded and much more prolific offending and the starting point there was fixed at 7 years.
13. In terms of false accounting, very similar conduct in the case of Police v Tuitamaga Leuelu & Others, a starting point of 5 years was fixed where two people working together (the Manager and the Accounts Clerk) were operating the money transfer system for the company and transferred money to themselves instead of customers. $55,000 involved and as I said, a starting point of 5 years.
14. So against all of those matters, Mr Kaleopa, I turn to the matter before me. Given the amount that you defrauded the Fund; the period of time over which you did it; the manner in which it was done; and the fact that you were a long standing and highly trusted employee – having regard to both the theft and the false accounting – I fix the starting point at 6 years imprisonment. That is close to the maximum penalty but that, in my view, is appropriate given your conduct and it is also consistent, in my view, with other decisions of this Court for similar offending.
15. The end point sentence, the actual term imposed, however, will not be 6 years as there are two matters that permit me to reduce the penalty. Firstly, I have regard to your prior history and I do find that you are someone who was previously of good character and that that fact alone should permit a reduction in penalty. You are 46 years old; you have no prior convictions; you hold two matai titles; and –although I am concerned about some aspects of possible dishonesty on a personal level that come through in the Probation Report – your wife is in Court; she confirms that she did write the letter. I am a little skeptical and am concerned that some of the comments in the Probation Report but I balance that against what I regard to be a fact: that you were clearly a highly regarded and trusted employee for a period of in excess of 25 years. You have retained the support of your wife and your children. Such an exemplary background, particularly, in the workforce for such a long period of time, is a matter that you are now entitled to call to your credit and should, in my view, attract a reduction in percentage terms of 15% (in actual terms of 12 months) and reduce the sentence down to one of 5 years imprisonment.
16. I hear your apology in the Court, Mr Kaleopa, and acknowledge that, today, you apologise to the Fund; you apologise to your family; and you apologise to the community for your offending. You tell me you are remorseful for what has happened. I accept that you may well be remorseful but I remark that, apart from an email to the Chief Executive Officer, there have been no other steps taken that might demonstrate the sort of extreme or exceptional apology and remorse that should attract a distinct reduction in sentence over and above the guilty plea – so while I accept that you are remorseful and you now apologise, those matters do not, in my view, permit me to reduce the sentence further.
17. No other matters are raised. As I said you appear to represent yourself today; you appear quietly spoken, reasonably humbled by your conduct and offer no excuses or other explanations.
18. There is, however, finally, the matter of the plea of guilty. I am advised that the New Zealand Court of Appeal decision of R v Hessell [2009] NZCA 450, has not formally been adopted here in Samoa; under that authority the maximum credit for a plea of guilty would be 25%. On the case law before me, and certainly the Attorney General concurs with this view, the maximum credit a plea of guilty can attract is up to one-third. Here, in respect of this offending, you pleaded guilty at a very early opportunity and there is a no reason therefore for me to not discount the sentence by the maximum credit: that would be a period of 20 months and that reduces the sentence to one of 3 years and 4 months imprisonment. That is the sentence I pass now in respect of each of those 10 charges.
19. Given your age and stage in life; the absence of any obvious rehabilitative factors; the fact that you are well educated and well qualified with significant work experience, I do not see any useful purpose in following that sentence with any term of supervision, so the penalty as I have noted, Mr Kaleopa, is one of 3 years and 4 months ‘imprisonment.

Thank you; you may stand down.

_____________________
JUSTICE E M AITKEN