Police v Seru [2015] WSSC 183 (6 November 2015)

SUPREME COURT OF SAMOA
Police v Seru [2015] WSSC 183

Case name:	Police v Seru
Citation:	[2015] WSSC 183
Decision date:	6 November 2015
Parties:	Police (prosecution) and Lui Seru, male of Tufuiopa and Matautu (defendant)
Hearing date(s):	21 and 22 October 2014
File number(s):	S1072/13, S1073/13, S1074/13, S1075/13, S1076/13, S1077/13, S1078/13 ...
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	For the offence of failing to deal with the $20,500 received from Mr Kurene in accordance with the required obligation, the defendant is convicted and fined $8,000. For the remaining 12 offences, he is convicted and fined $200 for each offence, a total $2,400. The defendant is also ordered to pay costs of prosecution of $5,000. The fines totalling $10,400 and costs of $5,000 are to be paid on or before the 16th December 2015 in default he will be sentenced to 2 years imprisonment.
Representation:	L Su’a-Mailo for prosecution K Ainuu for defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LUI SERU male of Tufuiopa and Matautu
Defendant

Counsel:
L Su’a-Mailo for prosecution
K Ainuu for defendant

Sentence: 6 November 2015

S E N T E N C E

1. The defendant, a real estate valuer and developer by profession was for several years engaged by Mr and Mrs Leavasa to sub-divide and sell some of their lands at Tiavi, near Apia.

In 2009 Mr and Mrs Leavasa wanted to sub-divide and sell another 25 acres of their lands. At the suggestion of the defendant a company was incorporated to sub-divide and sell the land. Rawata Holdings Limited, a name suggested by the defendant, was Incorporated, with the defendant and Mr and Mrs Leavasa as the shareholders and directors. A bank account was opened at the ANZ Bank. The signatories of the cheque account were the three directors. The cheque book was kept by the defendant.

2. Before the incorporation of Rawata, the defendant’s business was operated under the style Central Property Valuer, with its office at Tufuiopa. The same office became the registered office of Rawata where the prospective purchasers, in response to advertisements for the sale of the lands, made inquiries, enter into Sale and Purchase agreements, and made payments of the purchase price by monthly instalments. Employees of Central Property Valuer attended to the customers of Rawata and did the work for Rawata. Mr and Mrs Leavasa played no part in the daily running of the company. They trusted the defendant completely. A big mistake which they subsequently regretted.
3. Initially Mr and Mrs Leavasa paid $100,000 to the defendant as their share of the share capital. They paid another $100,000 before their departure overseas for a short visit. The last $100,000 was not deposited into the Rawata account. When questioned later by the Leavasa’s about the $100,000 the defendant admitted he paid it into his own account. Despite being a shareholder the defendant did not contribute financially to the share capital. He told the court that his surveying equipment which he purchased through Central Property was his $100,000 contribution to the share capital. But ownership of the surveying equipment was not transferred to Rawata. It remained the property of Central Property Valuer which charged Rawata 4 to 5% commission for the survey and sub-division of each section sold.
4. Receipts issued to the purchasers and customers of Rawata were either the official receipts of Central Property or of National Surveyors. National Surveyors is described on the receipt as a A DIVISION OF RAWATA HOLDINGS.
   • Mr Leavasa knew nothing about National Surveyors. In any event, the defendant saw fit to print out a receipt book for National Surveyors but not one for Rawata Holdings. Employee of Central Property Valuer who testified told the Court that the receipts given to the purchasers were issued out of whatever receipt book was available at the time.

Offending

5. The defendant’s offending relate to monies received by him, for the purchase of one of the sections of land by Mr Kurene. Purchase monies received by the defendant from Mr Kurene were not paid into the Rawata Holdings bank account as he was obliged to do. On 13 different occasions the defendant, contrary to his legal obligations failed to deal with the purchase monies as required of him. Those 13 payments were:

18/2/2010	$900	Information 1692
7/5/2010	$500	Information 1694
23/5/2010	$500	Information 1693
19/7/2010	$500	Information 1695
23/9/2010	$600	Information 1696
3/2/2011	$500	Information 1697
25/2/2011	$500	Information 1698
5/4/2011	$500	Information 1699
3/5/2011	$500	Information 1700
12/7/2011	$500	Information 1706
14/9/2011	$532	Information 1702
27/9/2011	$500	Information 1703
19/10/2011	$20,500	Information 1704

6. The monies paid by Kurene and other purchasers should have been banked on the day it was received, or the day after, or in the case of a week-end three days after. The Rawata bank statements speak volumes of the defendant’s deliberately using the funds for other purposes. Monies received were not banked as required. Of the $20,500 paid by Mr Kurene and receipted on the 19^th October 2011, which was a Wednesday, there was no deposit that week. It was not until the Friday of the following week, the 28^th, that there was a cash deposit of $500. The $20,500 did not go into the Rawata A/c.
7. Obviously the suggestion by the defendant to the Leavasa’s to incorporate a Company to sub-divide and sell their own land was not for the benefit of the Leavasa but a sinister scheme by the defendant to have easy access to the large quantities of monies from the land sales to meet his obligations and needs. It must be said however that there was no intention on the defendant to permanently deprive, the Leavasas of their monies. In fact when Mr Kurene instructed his solicitor for assistance concerning his purchase Mr Leavasa had already discovered the discrepancy and unsatisfactory state of the bank account and had already had discussions with the defendant concerning reimbursement. Mr Leavasa did not wish to and he did not lay any complaint with the police. For that, the defendant is very fortunate as it is quite obvious from the documentary evidence, in particular the bank statements that the activities of the defendant were overwhelming serious and deserves harsh severe response from the court.
8. Although the court here is concerned primarily with monies paid by Mr Kurene, the court cannot ignore the overall culpability of the offending and the scheme procured by the defendants to access the Leavasa’s funds. Mr and Mrs Leavasa are the primary victims of the offending. No doubt they will settle on an appropriate course of action to pursue if required. And this is not the end of the defendant’s criminal journey. The second trial which was supposed to continue on after this one and concerning similar offending involving different transactions and complainant was abruptly ended when counsel withdrew. Having formed an adverse opinion about the defendant I have recused myself from presiding in his next trial.
9. All the monies paid by the Mr Kurene for the purchase of his parcel of land have been received by the Leavasas. He will get title to the land. Mr Kurene as well as the Leavasas have been inconvenienced and stressed by the criminal conduct of the defendant.
10. Given the circumstances of the offending, the submission by counsel for a discharge without conviction is a non-issue. The only issue is whether a custodial sentence should be imposed on this 37 year old, first offender. If Mr and Mrs Leavasa were the complainants here the issue for the court to determine would not have been whether a custodial sentence should be imposed. The issue would simply be what length of custodial sentence should be given.
11. Although the sentence the court will impose will not be a custodial one, it must nonetheless reflect the seriousness of the offending, and will nonetheless land the defendant in prison if he does not comply.
12. For the offence of failing to deal with the $20,500 received from Mr Kurene in accordance with the required obligation, the defendant is convicted and fined $8,000. For the remaining 12 offences, he is convicted and fined $200 for each offence, a total $2,400. The defendant is also ordered to pay costs of prosecution of $5,000.
13. The fines totalling $10,400 and costs of $5,000 are to be paid on or before the 16^th December 2015 in default he will be sentenced to 2 years imprisonment.

JUSTICE VAAI