Police v Kereti [2015] WSSC 167 (9 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Kereti [2015] WSSC 167

Case name:	Police v Kereti
Citation:	[2015] WSSC 167
Decision date:	9 October 2015
Parties:	Police (prosecution) and Filiga Namulaulu Kereti, female of Fogapoa Savaii and Falelauniu (defendant)
Hearing date(s):	-
File number(s):	S2097/15, S2210/15, S2211/15, S2209/15, S2217/15, S2212/15, S2215/17 ...
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:	-
Order:	(1) The defendant is convicted of the 50 offences of theft as a servant and 40 offence of false accounting. (2) For each of those offences the defendant is placed on probation for 2 years and is ordered to undertake 100 hours community work. She is also ordered to pay costs of prosecution of $1,000 to be paid through the Probation Service by monthly payments of $200.
Representation:	O Tagaloa for prosecution G Latu for defendant
Catchwords:	Theft as a servant – false accounting – aggravating features – mitigating features
Words and phrases:	-
Legislation cited:
Cases cited:	Police v Sausoli Pili 29/9/2014 Police v Tevaga (2013) WSSC 35 (21/5/2013) Police v Rudnick (2010) WSSC 48 (25/5/2010)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FILIGA NAMULAUULU KERETI female of Fogapoa Savaii and Falelauniu
Defendant

Counsel: O Tagaloa for prosecution
G Latu for defendant

Sentence: 9 October 2015

S E N T E N C E

1. The defendant Filiga Namulauulu Kereti pleaded guilty to 50 charges of theft as a servant contrary to sections 161 and 165 (b) Crimes Act 2013. For each of those offences she is liable to terms of imprisonment of 10 years. She has also pleaded guilty to 40 counts of false accounting contrary to section 198 Crimes Act 2013 and for each count she is liable to 7 years imprisonment.
2. At the time of her offending she was employed by the National Health Services at Tuasivi as an Account Clerk, but from time to time, she also filled the role of cashier at the medical records section.
3. Her offending, according to the uncontested summary of facts occurred over a period of about 15 months, from July 2013 to October 2014, and during the times she worked as the cashier receiving monies paid by customers. On 40 different occasions she altered the copies of receipts retained in the Ministry’s receipt book to conceal the cash she stole. She stole a total of $7,961. She has repaid that money to the Ministry. She has lost her job as a result of her offending.
4. She is a 38 year old single mother with two infant children. The pre-sentence report says that her salary with the Ministry was $10,000 per annum.
   

Submission by the Prosecution

5. For the offences of theft the prosecution is seeking imprisonment sentences and to adopt 4 years as the appropriate starting point. It was submitted that the facts in this case is similar to those in Police v Sausoli Pili 29/9/2014 in which the Chief Justice Sapolu adopted 2 years starting point for 12 counts of theft as a servant. The 50 counts of theft as a servant by this defendant, the prosecution contended, warrant an upgrade to 4 years starting point.
6. The acts of dishonesty, prevalence, and the need for deterrence were also emphasised by the prosecution to justify an imprisonment sentence.

Mr Latu for defendant

7. Mr Latu for the defendant acknowledged that offences of theft as a servant normally warrant the imposition of custodial sentences. He submitted however that there are special circumstances which justify a departure from imposing a custodial sentence as I did in Police v Tevaga (2013) WSSC 35 (21/5/2013); as by Slicer J in Police v Rudnick (2010) WSSC 48 (25/5/2010).
8. Mr Latu emphasised that the culpability of the offending, the circumstances of the accused, her demonstrated willingness to accept responsibility for the moneys stolen are factors which justify a sentence other than one of imprisonment.

Discussion

9. The appropriate sentence to be imposed must be determined by the culpability of the offending, that is, the circumstances surrounding the offending. Personal circumstances of the defendant are relevant in reducing or increasing the sentence.
10. For a period of some 15 months this defendant was engaged in deceiving her employer by falsifying official documents to conceal the monies she stole. She ought to know that her criminal activities would, upon discovery, result in serious consequences and would affect her as well as her family and particularly her two infant children. She chose to continue with her dishonest conduct until she was caught.
11. It is true that the total amount stolen has been reimbursed but it came out of the pocket of someone else who also has commitments and a family to upkeep.
12. Despite the lengthy period of time in which the defendant committed the dishonesty, the court is of the view that the amount stolen was relatively small considering the size of the Ministry, the lengthy period of time the thefts were committed, and others involved. The Court accept from the pre sentence report that the defendant who was a relatively junior employee was pressured by other employees, senior in ranking, to lend them monies with the belief that those monies would be reimbursed. Those other employees, presumably, have continued to be employed by the Ministry.
13. The court ought to pay regard to sentences imposed for similar offending to provide consistency in the sentencing process. Despite her offending, there are people within the Ministry who speak highly of her character and work commitment. At the time of her offending she was a junior employee who was taken advantage of by her senior peers. At the same time the court recognises that some of the monies she took were for her own personal use. The case of Police v Sausoli Pili which the prosecution submitted should be followed can be distinguished on the grounds that the defendant there was a senior employee who within a period of two months on 12 separate occasions stole monies which were relatively substantial given the size of the organisation and the period of time the thefts were committed.
14. This case permits an exception to the general sentencing regime. She admitted to her employer her wrongdoing immediately upon discovery. She also told the Ministry how the money was stolen. She has lost her job. She is genuinely remorseful. She has managed the journey through life for 38 years without conviction. She is a devoted mother.
15. The pre-sentence report suggests an option, a community based sentence. The court will impose a penalty intended to provide deterrence but also allow for the future control of the defendant’s conduct.

Orders

1. The defendant is convicted of the 50 offences of theft as a servant and 40 offence of false accounting.
2. For each of those offences the defendant is placed on probation for 2 years and is ordered to undertake 100 hours community work. She is also ordered to pay costs of prosecution of $1,000 to be paid through the Probation Service by monthly payments of $200.

JUSTICE VAAI