Police v Paula [2015] WSSC 204 (25 November 2015)

IN THE SUPREME COURT OF SAMOA
Police v Paula [2015] WSSC 204

Case name:	Police v Paula
Citation:	[2015] WSSC 204
Decision date:	25 November 2015
Parties:	Police (informant) v Pisi Paula, female of Malie & Samalaeulu (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The accused is to serve two (2) years’ imprisonment.
Representation:	Ms Tavita & Ms Ioane for the Prosecution Defendant appears in Person
Catchwords:	Theft – theft as a servant – forgery –false accounting –
Words and phrases:
Legislation cited:
Cases cited:	Police v Ruby Faafaga Police v Sausoli Pili Police v Joyce Wilson
Summary of decision:

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

PISI PAULA, female of Malie & Samalaeulu
Defendant

Counsel:
Ms Tavita & Ms Ioane for the Prosecution
Defendant appears in Person

Date: 25 November 2015

SENTENCE OF JUSTICE TUATAGALOA

The charge:

1. The accused is to be sentenced on three (3) charges that she pleaded guilty to on 19 October 2015. These charges are:
   • ∗ 29 counts of theft as a servant pursuant to ss 161 & 165(e), which carries a maximum penalty of 10 years’ imprisonment.
   • ∗ 29 counts of forgery pursuant to s 194 which carries the maximum penalty of 10 years’ imprisonment; and
   • ∗ 55 charges of false accounting pursuant to s 198 and carries the maximum penalty of seven (7) years’ imprisonment.

The offending:

2. The accused has confirmed the summary of facts by the prosecution which basically says the following:
   • ∗ The accused worked as a secretary/receptionist for Poloa Finance and Investment Limited, a financial agency which loans out money to customers on a short-term basis.
   • ∗ The accused duties and responsibilities include answering the phone, receipting loan repayments, obtaining and perusing the company’s bank statements to check if there should be any refunds to customers who may have overpaid their loan amounts and if so, prepare a Refund Form in the amount overpaid.
   • ∗ The Manageress will then check the Refund Forms and endorse before any refunds are released.
   • ∗ On 55 occasions from 15 January – 12 August 2015 the accused created fictitious refund forms in various amounts in the names of customers.
   • ∗ From these 55 fictitious refund forms the accused stole on 29 occasions from 12 March – 21 August 2015 by forging the signatures of the customers to make it look like the actual customers received the refunds.
   • ∗ The total amount of money the accused stole was $9,796 from 12 March – 21 August 2015.

The accused:

3. The accused is 28 years old, married with no children and is a first offender. The pre-sentence report has the accused husband say that the accused is the breadwinner of their family since he was terminated from his job.
4. The accused has been to apologise to the owners of the company but the
   co-owner Angie Fruean says in the Victim Impact Report that the apology was not genuine because the accused only went to apologise because she was told to by Probation for the purpose of her Court case.

The victim:

5. The victim is Poloa Finance & Investment Limited, a financial agency that loans money on a short-term basis. It is not a big financial company so the amount stolen by the accused of $9,796 will be a significant financial loss and more so when the company had to pay that amount as refund to their customers who should have received it in the first place but did not. As a result of the offending the company incurred expenses in implementing a new system to prevent further occurrences of similar issues. The company had also, identified new staff requirement to avoid repetition from happening in the future.

Aggravating factors:

6. There are several aggravating features of this offending:
   • ∗ Breach of Trust: The accused was an employee of the victim/complainant company who was her employer. The accused was entrusted with certain duties and responsibilities by her employer. She has obviously breached that trust or relationship.
   • ∗ Pre-meditation: Falsifying accounts or documents and forgery involves a high degree of pre-meditation that is, it takes thinking and planning on one’s part. Falsifying and forgery are not only offences on their own but there is always something else or ulterior reason for doing it which reason is usually of a criminal motive. In other words the offending of falsifying and forgery were committed to facilitate the theft.
   • ∗ Frequency: It was not a one-off or isolated incident but there were 84 separate incidents of fraud and theft. It clearly shows a high degree of culpability on the accused because for 84 times she turned her mind to committing these offences.
   • ∗ Amount stolen of $9,796 is a significant amount to a small to medium sized company but also a significant amount in Samoan standard.
7. The prosecution should take note on what the Chief Justice in Police v Wilson^[1] say about deterrence and prevalence:
   • “Deterrence is not an aggravating factor relating to the offending or the offender. It is one of the sentencing objectives that the Court may take into account when passing sentence on an offender. Sometimes deterrence as a sentencing objective is taken into consideration because of the prevalence of a particular type of offending within the community. But prevalence is also not an aggravating factor relating to a particular offending or offender. Deterrence should also not conflated with the idea that the Courts should impose sentences that will stop the commission of crime altogether.”

Mitigating factors:

8. I find no mitigating factors to the offending but only those personal to the accused:
   • ∗ Previous good character: This is your first offending so obviously you were a law abiding citizen in the last 27 years.
   • ∗ Early guilty pleas.
9. I don’t find the accused apology as genuine and therefore will not give any credit to the accused.

Discussion:

10. I am aware that theft as a servant offending is prevalent with or amongst the female gender. The reason why the female gender commit, this offence is almost always the same. It is too much pressure or expectation by their families upon them to provide financially to the church, to fa’alavelave and to feeding the family. I blame those families who place this heavy burden on the women. In saying that, it does not excuse the women who break the law to enable them to financially meet these obligations.
11. Having regard to the circumstances of this offending and the aggravating factors a custodial sentence is appropriate.
12. In fixing the starting point, I have regard to the maximum penalty of 10 years. I take into account the amount taken, the method by which the accused stole the money of falsifying and forgery and the frequency or the number of occasions that stole the money and the planning and effort on the accused part in committing these offences.
13. I also have regard to other cases decided by this Court on these offences all with different starting points depending on the circumstances of each particular case and/or offending.
14. The Attorney General has referred the Court to two cases of Police v Ruby Faafaga^[2] and Police v Sausoli Pili^[3] as relevant to the offence of theft as a servant. Both of these cases fix starting points at 3 and 2 years. The Attorney General then on a totality approach suggests a starting point of 5 years.
15. I find Police v Joyce Wilson^[4] helpful and relevant. The difference with this case is there was a much bigger amount stolen and with much more frequency in Police v Wilson than the present case. Thus the Court fixed a starting point of 7 years.
16. In the present case I will take the totality approach and take the offence of theft as a servant as the leading offence. As mentioned earlier the offences of falsifying and forgery were committed to facilitate the theft.
17. I consider the starting point of 3 ½ years as appropriate; less 6 months for previous good character; and give 1/3 discount for the early guilty pleas which is 12 months. That leaves two (2) years’ imprisonment.
18. For the offence of theft as a servant the accused is convicted and sentenced to 2 years’ imprisonment.
19. For the offences of falsifying and forgery which were committed to facilitate the offence of theft the accused is convicted and sentenced to 1 year imprisonment for each offence.
20. All of these sentences are to be concurrent which means that the accused is to serve two (2) years’ imprisonment.
    

......................................
Justice Mata Keli Tuatagaloa

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^[1] [2015] WSSC 5 (30 January 2015)
^[2] (24 February 2014, Justice Nelson)
^[3] (29 September 2014, Chief Justice)
^[4] Supra at 1