Police v Feliuai [2015] WSSC 168 (13 October 2015)

SUPREME COURT OF SAMOA
Police v Feliuai [2015] WSSC 168

Case name:	Police v Feliuai
Citation:	[2015] WSSC 168
Decision date:	13 October 2015
Parties:	POLICE v FAAPA’U FELIUAI male of Satapuala and Tulaele.
Hearing date(s):
File number(s):	S289/15, S288/15, S287/15,S284/15, S285/15, S286/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 9 months imprisonment on each of the six charges. - All sentences to be concurrent - Any time the accused has spent in custody is to be further deducted
Representation:	P Chang for prosecution Accused in person
Catchwords:	theft as a servant, contrary – maximum penalty – pleaded guilty at earliest opportunity – aggravating features relating to the offender – extent of offending – breach of trust – premeditation – aggravating features relating to the offending – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.161
	Crimes Ordinance 1961
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S284/15-S289/15

BETWEEN

P O L I C E

Prosecution

A N D

FAAPA’U FELIUAI male of Satapuala and Tulaele.

Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 13 October 2015

S E N T E N C E

The charges

1. The 26 year old accused Faapa’u Feliuai appears for sentence on six 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. To all charges, the accused pleaded guilty at the earliest opportunity.
2. Under the Crimes Ordinance 1961, the maximum penalty for theft as a servant was 7 years imprisonment. This has now been increased to 10 years imprisonment under the Crimes Act 2013.

The offending

3. At the material times, the accused was employed by M & J Ah Fook Enterprises Ltd at Savalalo as a sales delivery clerk. His responsibilities included the delivery of crates of beverages to shops and supermarkets which are customers of his employer. He would receive the payments for those crates of beverages and issue receipts to the customers.
4. On Saturday 20 December 2014, the accused and other fellow employees made a delivery of crates of beverages to a shop at Sinamoga. He received a total payment of $843.70 in cash from this shop. The accused then issued a receipt for that amount to the shop. However, he recorded in the receipt copy only $469 and stole the difference of $404.
5. On Monday 22 December 2014, the accused and other fellow employees made another delivery of crates of beverages to a supermarket at Pesega and received a payment in cash of $793.70. He issued a receipt to the supermarket for that amount. However, he recorded in the receipt copy only $469 and stole the difference.
6. On Monday 29 December 2014, the accused and other fellow employees made another delivery of crates of beverages to the same shop at Sinamoga to which they had delivered beverages on 20 December 2014. The accused received a payment of $1,089.50 in cash and issued a receipt to the shop for that amount. On the receipt copy the accused recorded only $460 and stole the difference of $629.50.
7. On Wednesday 31 December 2014, the accused and other fellow employees again made another delivery of crates of beverages to the same shop at Sinamoga and received a payment of $433.80 in cash. The accused issued a receipt to the shop for that amount. On the receipt copy he recorded only $142.30 and stole the difference of $291.50.
8. On the same day, 31 December 2014, the accused and his fellow employees made a delivery of crates of beverages to a different shop at Lepea and received a payment of $145.60 in cash. The accused issued a receipt to that shop for that amount. He then recorded in the receipt copy only $67.50 and stole the difference of $78.10.
9. On the same day, 31 December 2014, the accused and his fellow employees made a delivery of crates of beverages to another shop at Ululoloa and received a payment of $362.50 in cash and the accused issued a receipt for that amount. He then recorded in the receipt copy only $215.60 and stole the difference of $146.90
10. The total amount of money stolen by the accused from those deliveries of beverages was $1,874. On 7 January 2015, this matter came to light when the accused’s employer reviewed its invoices and receipt books.

The accused

11. The accused is a male of Satapuala. He is married with two children. At the time of this offending he was living with his wife and children at his wife’s family in the Apia area.
12. The pre-sentence report shows that het accused’s parents separated when he was at a young age. He managed to reach Year 11 at school when he was forced to leave school and to live with the Samoa Victim Support Group due to physical abuse by his step father. When he was released from the Samoa Victim Support Group in 2008, he became a member of the Gaualofa sailing crew that sails around the Pacific islands on a traditional alia. This was for three years. In 2012 he married his wife and found employment with M & J Ah Fook Enterprises Ltd at Savalalo from which he was earning $100 a week.
13. The pre-sentence report shows that the accused told the probation service that he had approached his former employer to offer an apology but he was banned from the company’s premises. However, a representative of the company told the probation service that the accused never came to apologise.
14. The accused is a first offender. His natural father told the probation service that the accused is a hardworking person and was supportive of his family during his employment. He asks for leniency on the accused. The written testimonials from the pastor of the accused’s church and the pulenuu of his village show the accused to be a person of good character with the church and his village.

The aggravating features relating to the offending

15. The aggravating features relating to this offending as set out in the prosecution’s sentencing memorandum are as follows:

(a) Extent of offending

16. This offending involved six separate incidents of theft committed over a period of eleven days. This is an aggravating feature relating to the offending.

(b) Breach of trust

17. As with other cases of theft as a servant, this case is no different. It involved a breach by the accused of his employer’s trust. He was employed as a sales delivery clerk when he stole from his employer the monies with which he has been charged with. This is also an aggravating feature relating to the offending.

(c) Premeditation

18. This offending involved a significant degree of premeditation. This is also an aggravating feature relating to the offending.

(d) Amount of money stolen

19. The total amount of money stolen by the accused though, relatively small compared to other cases of theft as a servant, is an aggravating feature relating to the offending.

The mitigating features relating to the accused as offender

(a) Previous good character

20. There is some evidence of previous good character for which the accused is entitled to some credit.

(b) Early guilty plea

21. The accused’s early guilty plea is an important mitigating feature relating to him as offender.

Discussion

22. Applying the totality principle for sentencing and having regard to the new maximum penalty of 10 years imprisonment for theft as a servant, the need for deterrence for this type of offending, and the aggravating features relating to the offending, I will take 15 months as the starting point for sentence. I will deduct 2 months for previous good character. That leaves 13 months. I will further deduct 1/3 or 4 months for the early guilty plea. That leaves 9 months.

Result

23. The accused is convicted and sentenced to 9 months imprisonment on each of the six charges against him. All sentences to be concurrent. Any time that the accused has already spent in custody is to be further deducted.

CHIEF JUSTICE