Police v Keti [2015] WSSC 16 (5 March 2015)

SURPEME COURT OF SAMOA
Police v Keti [2015] WSSC 16

Case name:	Police v Keti
Citation:	[2015] WSSC 16
Decision date:	5 March 2015
Parties:	POLICE (prosecution) v URIANA KETI (accused) female of Lelata and Avao Savaii.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 13 months imprisonment - Time spend in custody to be further deducted from that sentence.
Representation:	P Chang for prosecution F E Niumata for accused
Catchwords:	Theft as a servant – maximum penalty – guilty – aggravating and mitigating features – impact on the complainant – breach of trust – impact of offending – extend of offending – false payments- previous good character – apologies - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.161, s165 (e)
Cases cited:	Mokelu v R [2010] EWCA 288 Nola v Police [1989] NZHC 346, Police v Iteli [2009] WSSC 12; Police v Sokime [2010] WSSC 171 Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; R v Barrick (1985) 81 Cr App R 78, R v Clark (1998) 2 Cr App R (S) 95 R v Kingston [2001] NZCA 170 R v Schulz [2000] NZCA 133 Robinson v R [2002] EWCA 2490; Webbe v R [2001] EWCA Crim 1217;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

AND

URIANA KETI female of Lelata and Avao Savaii.
Accused

Counsel:
P Chang for prosecution
F E Niumata for accused

Sentence: 5 March 2015

S E N T E N C E

The charges

1. The accused Uriana Keti appears for sentence on thirty seven charges of theft as a servant, contrary to s.161 of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment pursuant to s.165(e). To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. At the material times, the accused was employed in the accounts section of the Farmer Joe Supermarket at Vaitele which is the complainant in this matter. Her duties involved preparing payment vouchers where the amount due to a supplier is more than $250 for approval by the complainant’s finance manager, processing cheques for payment of those vouchers, posting cheque payments in the complainant’s MYOB system, and doing reconciliations of suppliers statements.
3. What happened was that on thirty seven separate occasions between 19 May 2014 and 17 August 2014, the accused prepared false payment vouchers for suppliers that have been paid, bypassed the finance manager’s approval of those false payment vouchers, and processed the cheques for payment. She then got the general manager to sign those cheques and cashed those cheques from different cashiers in the complainant’s supermarket and took the money for her own use.
4. To conceal her actions, the accused did not enter the original payment vouchers into the complainant’s MYOB system but entered the false payment vouchers she had created to show that payment had been made to the suppliers.

The accused

5. As shown from the pre-sentence report, the accused was 23 years old at the time of this offending and she comes from a poor family. In 2010 she obtained a foundation certificate in commerce from the National University of Samoa and then continued on to do a bachelor of commerce degree. In 2013 when her parents moved to Savaii, she was left with the care of her elderly grandmother and she took up employment with the complainant’s supermarket at Vaitele in November 2013 while still studying for her commerce degree on a part time basis. When her employment was terminated in 2014 and her parents had moved back from Savaii, she returned to her university studies full time. A letter from the university shows that the accused should complete her degree this year if she passes her four remaining units.
6. The pre-sentence report also shows that the accused told the probation service that she used the money she took from her former employer to care for her elderly grandmother through grocery shopping and for her younger sibling’s education. I find it difficult to accept that the accused used all of the money that she stole for such purposes given the total amount of the stolen money and the fact that she was at the same time being paid her wages by the complainant.
7. The accused is a first offender and the testimonials from her parents and her church show that she had been a person of good character prior to the commission of these offences. She also has a good academic record as shown from her certificates attached to her pre-sentence report.
8. An attempt by the accused to apologise to the complainant was turned down.

Impact on the complainant

9. Counsel for the prosecution in her sentencing memorandum states that as a result of this offending, the complainant has spent a large amount of money to re-train its employees as well as an enormous amount of time on the search for documents to support the charges laid against the accused.

Aggravating features relating to the offending

10. The following are the aggravating features relating to the offending.

(a) Breach of trust

11. Offences of theft as a servant always involve breach by an employee of the trust of his/her employer. The important question is the quality and degree of trust placed in the employee by his/her employer. Here the accused was employed in the accounts section of the complainant’s supermarket. Her duties involved preparing payment vouchers for approval by the finance manager and then processing cheques for payment of those vouchers. What the accused did was to prepare false payment vouchers, bypassed the finance manager’s approval, processed the cheques for payment, gave those cheques to the general manager to sign, then cashed those cheques from different cashiers in the complainant’s supermarket and took the monies for herself. This was rather audacious of the accused given her young age and the fact that she had only been in the employment of the complainant for about six months.

(b) Extent of offending

1. This is not a case of one isolated lapse. It is a case which involved thirty seven separate incidents of theft committed over a period of about four months. It shows that a high level of premeditation was involved.

(c) Amount of money involved

12. The total amount of money stolen by the accused is estimated at $11,877.80.

(d) Impact of offending

13. As stated in the sentencing memorandum by counsel for the prosecution, as a result of this offending, the complainant has spent a large amount of money to re-train its employers as well as an enormous amount of time on the search for documents to support the charges laid the against the accused.

Mitigating features relating to the accused as offender

(a) Previous good character

14. The accused is a first offender and the testimonials from her parents and her church show that she had been a person of good character prior to the commission of these offences. It also appears from the accused’s academic record that she must be a keen and hardworking student.

(b) Apology to the complainant

15. I would not give much weight to the attempt by the accused to apologise to the complainant but was turned down.

(c) Plea of guilty

16. The accused pleaded guilty to the charges against her at the earliest opportunity which saved the Court and the prosecution much time and resources.

Relevant sentencing decisions

(a) English decisions

17. In the sentencing guidelines decision for certain types of fraud including thefts committed by employees in positions of trust given in R v Barrick (1985) 81 Cr App R 78, Lord Chief Justice Lane in delivering the judgment of the English Court of Criminal Appeal stated at pp. 81-82:
    • “In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the general punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but as less than $10,000, or thereabouts, terms of imprisonment ranging from the very short up to eighteen months are appropriate (see for example Weston (1980) 2 Cr. App. R (S) 391). Cases involving sums of between about £10,000 and £50,000 will merit a term of about two to three years imprisonment. Where greater sums are involved, for example those over £100,000, then a term of three and half years to four and a half years would be justified (see example the case of Strubell (1982) 4 Cr. App. R. (S) 3000...
    • “In any case where a plea of guilty is entered however the Court should give the appropriate discount...
    • “The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including the rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow employees or partners; (ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like...
18. The sentencing guidelines set out in R v Barrick were re-set to take account of inflation in the subsequent decision of the English Court of Criminal Appeal in R v Clark (1998) 2 Cr App R (S) 95 where Rose LJ stated:
    • “The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents respectively of £10,000, £50,000 and £100,000, the figures mentioned. Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 will merit 3 to 4 years. These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for”.
19. It appears from the later English decision in Webbe v R [2001] EWCA Crim 1217; Robinson v R [2002] EWCA 2490; Mokelu v R [2010] EWCA 288 that the sentencing guidelines for thefts committed by employees in positions of trust laid down in R v Barrick (1981) 81 Cr App R 78 and re-set in R v Clark (1998) 2 Cr App R (S) 95 to take account of inflation are still applicable in England.

(b) New Zealand decisions

20. In the New Zealand case of Nola v Police [1989] NZHC 346, the New Zealand High Court dealt with an appeal against a sentence of 18 months imprisonment imposed for two counts of theft as a servant involving a total amount of $15,000. The appellant had pleaded guilty and had a previous conviction for fraud. The appeal was dismissed.
21. In R v Schulz [2000] NZCA 133, the New Zealand Court of Appeal dealt with an appeal by the Crown against a sentence of 15 months imprisonment and an order to pay reparation in the sum of $17,172.65 following a trial on one joint count of theft as a servant. The amount involved was $35,345.30. The appeal was allowed and the sentence of 15 months imprisonment was increased to 16 months imprisonment.
22. In R v Kingston [2001] NZCA 170, the New Zealand Court of Appeal dealt with an appeal against a total end sentence of 22 months imprisonment. The appellant was found guilty on six counts of theft as a servant following a jury trial. The total value of the stolen items involved in those counts was almost $13,000. The appellant was also charged with three counts of theft as a servant in relation to a different employer to which he pleaded guilty. The total value of the items involved in those three counts was $800.00. The appellant had a long history of offending of a similar nature. On the six counts of theft as a servant on which the appellant was found guilty following a trial, he was sentenced to 16 months imprisonment. On the three counts of theft as servant to which the appellant pleaded guilty, he was sentenced to 6 months imprisonment. The sentences were made cumulative so that the end sentence was 22 months imprisonment. The appeal against sentence was dismissed.

(c) Samoan decisions

2. In the cases of Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12; this Court adopted and applied the sentencing guidelines for fraud cases including theft as a servant set out in R v Barrick (1985) 81 Cr App R 78, pp 81-82 as re-set in R v Clark (1998) 2 Cr App R (S) 95 on the basis that they are guideline decisions.
23. In Police v Rudnick [2010] WSSC 48, para 7, Slicer J followed the English approach to sentencing in theft as a servant cases as adopted in Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12.
24. In Police v Sokime [2010] WSSC 171, which was also a case of theft as a servant, Nelson J accepted that cases of theft as a servant which involve amounts around $10,000 ordinarily attract sentences of 18 months imprisonment. This is not only consistent with other sentencing decisions of this Court in cases of theft as a servant involving total amounts around $10,000, but it is also consistent with the guidelines set out in R v Barrick. The only word of caution I want to give is that the amounts set out in R v Barrick have been re-set in R v Clark to take account of inflation so that what was £10,000 in Barrick was re-set to £17,000 in Clark.

Discussion

25. Having regard to the need for deterrence in this type of case, the aggravating features relating to the offending, and the totality principle, I will take 2 years as the starting point for sentence. I will deduct 1/3 or 6 months for the early guilty plea. That leaves 18 months. I will deduct 3 months for previous good character. That leaves 15 months. Given the personal circumstances of the accused, particularly her relatively young age at the time of the offending and the fact that she is a student in her final year for a commerce degree, I will show mercy on her and deduct another 2 months. That leaves 13 months.

The result

26. (a) For the charge of theft as a servant involving $595, the accused is sentenced to 13 months imprisonment.

(b) For each of the charges involving amounts of more than $400 but less than $500.00, the accused is sentenced to 12 months imprisonment.

(c) For each of the charges involving amounts of more than $300 but less than $400, the accused is sentenced to 9 months imprisonment.

(d) For each of the charges involving amounts of more than $200 but less than $300, the accused is sentenced to 6 months imprisonment.

(e) For the charge involving $23, the accused is sentenced to 3 months imprisonment.

27. All the sentences are to be concurrent so that in effect the accused will serve a sentence of 13 months imprisonment. Any time the accused has been remanded in custody pending the outcome of this matter is to be further deducted from that sentence.
    

Honourable Chief Justice Sapolu