Police v Ah Him [2015] WSSC 140 (2 March 2015)

IN THE SUPREME COURT OF SAMOA
Police v Ah Him [2015] WSSC 140

Case name:	Police v Ah Him
Citation:	[2015] WSSC 140
Decision date:	02 March 2015
Parties:	The Police (Prosecution) Muagututagata Peter Ah Him, male of Saleufi and Leififi. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The defendant is on each charge convicted and fined $10,000.00 payable by 12:00 noon Wednesday 04 March 2015, in default of payment 6 months imprisonment per charge. In addition he will pay $6,000 prosecution costs $3,000 court costs and $1,000 probation costs also payable by 12:00 noon 04 March 2015, in default he will serve a further 6 months in prison.
Representation:	L Su’a-Mailo and L Sio for prosecution P Fepuleai for defendant
Catchwords:	Bogus – hefty fine - vulnerability of the victim
Words and phrases:
Legislation cited:	Crimes Act 2013 Criminal Procedure Act 1972
Cases cited:	Police v Samau [2010] WSSC 163 Police v Lima [2014] WSSC 33
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MUAGUTUTAGATA PETER AH HIM, male of Saleufi and Leififi.
Defendant

Counsel: L Su’a-Mailo and L Sio for prosecution
P Fepuleai for defendant

Sentence: 02 March 2015

SENTENCE OF NELSON J

Charges

1. After a defended hearing the defendant was found guilty of the following:
   • S1854/14: that between the 01st day of January 2013 and 31st day of March 2013 at Saleufi, knowing the document number 4850 under the name of Savea Savelio to be false, use the document as if it were genuine; and
   • S1856/14 : that between 01st day of January 2013 and 31st day of March 2013 at Saleufi, with intent to defraud Grand Ocean Industries by false pretence, used a document number 4850 to cause or induce Grand Ocean Industries to make or execute valuable security namely a cheque in the amount of $62,454.50ST.
2. Charges arise out of business dealings between the defendant and his overseas resident Chinese partners in a joint-venture company called Grand Ocean Industries (Samoa) Limited (“Grand Ocean”). They represent an attempt by the defendant to defraud his partners of some $30,000.00. Offence of uttering a forged document carries a maximum penalty of 5 years imprisonment and obtaining by false pretence a maximum penalty of 3 years imprisonment.
3. As these offences preceded the Crimes Act 2013 the defendant was charged and must be dealt with pursuant to the Crimes Ordinance 1961 sections 108(a) and 89 (1) (b) respectively. The increased penalties under the new Crimes Act are therefore irrelevant. If authority for this proposition be required, see article 10 (2) of the Constitution which provides:
   • “10. Rights concerning criminal law- (2) No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence at the time when it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time that the offence was committed.”

The Facts

4. Facts were extensively covered by the court decision of 30 January 2015 and shows the nature of the offending and how it was committed. The defendants charges for “special services” rendered may have been justified given the work he performed for the company and the substantial duty savings achieved. But that was no justification for the devious methodology employed to obtain payment. That was unethical behaviour and business practice and in the eyes of the law amounted to fraud. Perhaps the defendants sense of right and wrong has become tainted by being associated with the many fly-by-night foreign investors who seem to be infiltrating our shores more and more.

Prosecution Submissions

5. The prosecution are seeking imprisonment penalties in respect of both charges. They rely on a combination of New Zealand case law and Samoan authorities where such penalties were imposed
6. It is trite law to say sentencing in each case depends on its facts and circumstances. And the situation of the particular offender. Previous decisions are helpful. Especially if they illustrate clear and stated sentencing policies of the court in relation to particular offences. Or a particular type of offending. Thus for example in respect of the many theft as a servant cases that come before the court. The court has there stated repeatedly that because of the seriousness and prevalence of such offending penalties of imprisonment will normally be applied. No such pronouncements have been made in respect of the offences the defendant was found guilty of committing.
7. Court bears in mind the offences the defendant was found guilty of was not forgery which was carried out by his wife. But “uttering” a forged document or “making use” of a forged document. In this case the bogus Invoice 4850 to obtain a valuable security viz a cheque from Grand Ocean in the sum of $62,000. $32,000 of which was valid reimbursement of the expenses incurred in clearing their containers and $30,000 of which was for the defendants undisclosed fee for “special services” rendered by him and the company owned by him and his wife.
8. The New Zealand cases are easily distinguishable. The relevant New Zealand provisions are not identical and those cases involved different offences and different circumstances. Furthermore, in all instances the defendant was the producer of the relevant forged document and material. The latter is also the situation with the Samoan authorities cited which unhelpfully includes cases decided under the new legislation which carry significantly higher penalties.
9. I accept the aggravating factors of the offending includes breach by the defendant of the trust vested in him by his overseas resident partners, this being an aspect of what is referred to as the “vulnerability of the victim” company. There is also no question the amount involved in the offending is significant.
10. I do not however accept lack of remorse is an aggravating factor. Every defendant is entitled to contest criminal charges brought against him. If he is found guilty this should not be held against him. As my brother Slicer, J noted in Police v Samau [2010] WSSC 163 at paragraph 22:
    • “The criminal justice system has long afforded the right of a plea of not guilty and to require the prosecution to prove guilt. It would betray that principle of (sic) a person exercising the right to punish a person more harshly if found guilty.”

The only consequence is the defendant does not receive a deduction for expressing remorse for the offending.

11. Neither is deterrence accepted as an aggravating factor. But it is of course a principle applicable to the sentencing process. If what is meant here is a deterrent penalty is required because of the prevalence of such offending, then I echo the words of Slicer, J in the matter above:
    • “If the Attorney General of Samoa wishes the courts to increase the range of penalties through the medium of increased prevalence, rather than by statute, more material than was submitted here is required.”

It may be the increased penalties and new provisions of the Crimes Act 2013 renders this argument moot.

Defence Submissions

12. In mitigation Mr Fepuleai canvassed the defendants relationship both personal and business with his partners. He referred to how it soured when the defendants partners formed new relationships with other local businessmen and Parliamentarians. How this led to acrimony resulting in Grand Ocean issuing civil proceedings against the defendant and his company ABM. And led to the police complaint concerning the $30,000 “overcharging”. Counsel argued the services rendered under Invoice 4850 were not in fact “bogus” but the manner of invoicing “left a lot to be desired”. Surely an understatement.
13. He also referred to a letter dated 11 June 2014 from counsel for Grand Ocean Mr Katopau indicating Grand Oceans desire to withdraw all charges against the defendant because “the matter has been satisfactorily resolved between the parties”. As the charges do not in any way shape or form belong to Grand Ocean but to the Police who laid them, Mr Katopau in his evidence indicated the Attorney General on behalf of the Police declined his clients request and directed the matter proceed. This the Attorney was quite entitled and arguably duty bound to do.
14. Counsel also touched upon the other mitigating factors in the defendants favour. His clean criminal record at age 59 years, his distinguished background of service public and private over the past 25 years as a resident of this country to his family community church and Government as detailed in his pre-sentence report, evidenced by the numerous character references attached to the report. Counsel referred to the many charitable works of the defendant which remain unacknowledged and unpublicised. There is no doubting the defendants list of good works is commendable. Many of the references refer to this and express surprise and disappointment at the defendants involvement in criminal offending.
15. Counsel also referred to the stigma and shame the defendant has brought upon himself and his family especially in light of the substantial media exposure both local and international that this sort of scandalous event attracts. Cannon fodder for the Internet and the social media of the age we live in.
16. I accept the defendant has and will continue to endure the many effects of his offending. It has tarnished his personal and business reputation, affected him socially and probably financially and has ruined at least in the short term a bright political career. But those are consequences he has brought upon his own head. Regrettably with the exception of his wife, they have been visited upon his family as well. They are as with the families of many defendants the innocent debris of the offending.

Decision

17. The real question as acknowledged by counsel is whether the defendants conduct should attract the imprisonment sanctions of the criminal law. I have come to the conclusion after considering all the relevant factors and circumstances it should not. This is a case of one-off offending by a defendant who considered himself entitled to recompense for services to the complainant company. That may well have been the case but his methodology was flawed, fraudulent and in breach of the criminal law. Something for which he has paid and will continue to pay.
18. In accordance with relevant established sentencing principles, the punishment must reflect the seriousness and level of criminality of the offending, must hold the defendant accountable for his actions, must denounce his conduct as morally reprehensible and unacceptable to the community at large, must alleviate or as far as possible compensate the complainant for his or her or in this case its loss, and must serve as a personal deterrent to the defendant and a general deterrent to others. In this regard I note full restitution and reconciliation has been effected.
19. I emphatically reject the suggestion that this is an appropriate case where the court should exercise its discretion pursuant to section 104 (1) (b) of the Criminal Procedure Act 1972 and discharge the defendant without conviction. Fraud is a serious crime. Moreso when committed by persons holding high office. As my sister Malosi, J stated in the celebrated case of Police v Lima [2014] WSSC 33 at paragraph 34:
    • “A higher degree of behaviour is expected from those in privileged positions.”

The entering of a conviction on your record is entirely appropriate given the seriousness of the offending and is not of itself “a hardship out of proportion to the particular circumstances.”

20. I also do not believe the courts discretion under section 113 of the Criminal Procedure Act whereby an offender can be ordered to come up for sentence within a specified period of time should be invoked. That section provides in subsection (1) that the court may after “having regard to the circumstances including the nature of the offence and the character of the offender, instead of passing sentence, order the offender to appear for sentence if called upon to do so, on such conditions as the court thinks fit.” This type of sentence is commonly incorrectly referred to as a “suspended sentence.” In fact it is not because under section 113, an offender is not sentenced. It merely provides for an offender to appear for sentencing if the conditions imposed by the court are breached. If not breached then the offender remains free of sanction. In the case of a suspended sentence, an offender is actually sentenced but the sentence is suspended from coming into force on certain conditions. That is an entirely different creature.
21. Considering the circumstances of this matter and the serious nature of the defendants transgressions it would in my respectful view be sending an entirely inappropriate and wrong message not to impose a sentence upon the defendant. I decline the exercise of that power of the court noting that it is more frequently invoked in cases involving less serious offending.
22. As to an appropriate sentence I am of the view a monetary fine is appropriate. I note counsels indication his client is in a position to meet a “hefty fine.” The information available on the defendants financial status likewise reinforces his ability to meet monetary penalties even of a significant nature.
23. The defendant is on each charge convicted and fined $10,000.00 payable by 12:00 noon Wednesday 04 March 2015, in default of payment 6 months imprisonment per charge. In addition he will pay $6,000 prosecution costs $3,000 court costs and $1,000 probation costs also payable by 12:00 noon 04 March 2015, in default he will serve a further 6 months in prison.
    

JUSTICE NELSON