Police v Faalogo [2015] WSSC 246 (1 May 2015)

IN THE SUPREME COURT OF SAMOA
Police v Faalogo [2015] WSSC 246

Case name:	Police v Faalogo
Citation:	[2015] WSSC 246
Decision date:	01 May 2015
Parties:	POLICE (Prosecution) CATHERINE TAFA MOEFILI FAALOGO, female of Levi Saleimoa. (First Defendant) AND MOSE OSA. male of Levi Saleimoa. (Second Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Tagaloa and F Ioane for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

CATHERINE TAFA MOEFILI FAALOGO, female of Levi Saleimoa.
First Defendant

AND:

MOSE OSA. male of Levi Saleimoa.
Second Defendant

Counsel: O Tagaloa and F Ioane for prosecution
Defendant unrepresented

Sentence: 01 May 2015

SENTENCE

1. The two defendants have pleaded guilty to charges that at Fugalei on 23 January 2015 they did steal $1,700.00 in money the property of Christopher Mafo’e owner of Kingdom Builders of Fugalei information S1232/15. They also pleaded guilty to information S604/15 that at the same place same date they did steal $450.00 in money the property of Alice Smith of Siusega.
2. When police summary of facts was read to the defendants both disputed relevant parts thereof. Therefore became necessary to have a disputed summary of facts hearing for which purposes the police called three witnesses. Primary witness was Alice Smith an employee of Kingdom Builders of Fugalei. Her evidence was that on 23 January 2015 the defendant Catherine Faalogo came into their offices around noon displaying interest in a car for sale belonging to her cousin the office manager. She said Catherine spent a considerable amount of time talking to her about the vehicle and various other things and at one stage sat beside her because ostensibly she wanted to be closer to the fan. Catherine saw her place two money bags in her purse which she then put into her drawer when a customer came in requesting a quotation for timber.
3. She said she was distracted by the customer and while working at the quotation on her PC lost track of the defendant who was moving back and forth between the chair beside her and the chair in front of her desk. At the time she said only herself, Catherine and the client requesting the quote were in the office. When asked specifically she denied the co-defendant Mose Osa was present in the office at any time that day. After serving her client she noticed Catherine was bending down in front of her desk, it appeared to answer a phone call. It seemed to her the call was in relation to the enquiry about the car for sale.
4. Shortly thereafter Catherine left the office and she went to look for her cousin to tell him Catherine had gone. He told her that the lady had crossed the road so rapidly that she almost got run over by a bus. However her cousin was not called by the prosecution to testify so such evidence is strictly hearsay evidence, it must be ignored. When she returned to her desk she found the money bags were gone together with a signed but unfilled personal cheque from a customer to pay for his order. She was able to put a stop payment on the cheque before calling the police for assistance. The money bags contained $1,700.00 of Kingdom Builder funds and $450.00 of her own personal money.
5. Other witnesses were called by the prosecution the first Segifili Moefili. A taxi driver friend of the defendant couple who lives next door to them at Saleimoa. His evidence was that on the day in question he picked up Catherine at about 12:45 pm from Vaitele, took her to Saleimoa where they picked up Mose. Retuned to town and made a number of stops at the New Zealand High Commission and Risas Hawaiian barbeque opposite Mynas store at Letava where the defendant shouted lunch. They then went and picked up some washing from Vaigaga and returned to Saleimoa where the vehicle was stopped by the police who took the two defendants into police custody. Significantly there was no mention by this taxi driver friend of the defendants of a visit to Kingdom Builders at Fugalei. In particular by the defendant Mose Osa. The timeline of his evidence also puts Mose at Saleimoa at the material time.
6. The final witness called by the police was Constable Taualai Luuga who searched Mose at the police station. He said he recovered $600 hidden in Moses underwear. Mose agreed money had been found on him but says it was $800 and was in his pants pocket. The constable adamantly denied this in his evidence.
7. The defendants constitutional and legal options were explained to them by me after which both of them elected to testify. The gist of Catherines evidence was to blame Mose for the theft. She said Mose removed the money from Alices purse while the two of them were seated at Alices desk. She said she distracted Alice while Mose carried out the theft. Moses evidence was along the same line. He said he was responsible for planning and executing the theft. He said Catherine talked to Alice while he took the purse and removed the money and that the purse had been sitting on Alices bag underneath her desk not in her drawer. He asked the court to place the blame on him for the theft but did admit that Catherine assisted him in the exercise.
8. I have great difficulties with the defendants evidence. It is totally inconsistent with the evidence of their taxi driver friend and neighbour Segifili. There is no reason why Segifili would give false testimony to the court and in fact given his relationship his testimony would if anything try to assist the defendants. The court must also remember this couple are on trial for a joint theft which they have admitted to committing.
9. I prefer the evidence of Alice who is more credible and whose evidence accords with the evidence of the defendants own friend and neighbour about the movements of the defendants on the day in question. I reject the defendants challenge to the police summary of facts and they will be sentenced on the basis of the evidence the court has heard from the police namely that it was Catherine who committed the theft and Mose was nowhere around at the time. But he participated in the offending as evidenced by his guilty plea and the discovery of the unspent balance of the money on him and not on Catherine.
10. I do not accept Moses attempt to take blame for this matter. He is only doing that because as he said in his evidence he loves his wife. His efforts were an understandable but futile attempt to save Catherine from this matter. I deal with her first as she is the primary offender.
11. The defendant has a long list of previous convictions. Most recent one was on 24 January 2014 in the District Court where she was convicted and given a suspended sentence for the offence of obtaining by deception. She has also admitted to having many previous convictions in New Zealand over the past 15 years for offences of dishonesty, fraud and other matters.
12. The maximum penalty by law for the offence you committed Catherine is 7 years in prison. The prosecution have suggested a start point of 2 years in prison. I agree with that and it reflects a 12 months upscale for your poor record. So the sentencing starts at 2 years in prison. The only deduction that you qualify for Catherine is for your guilty plea. It saves some time but your unsuccessful challenge to the police summary of facts has resulted in the court having to hear witness evidence. So you cannot receive the full deduction for the guilty plea but I will deduct half of its value namely 3 months, leaves a balance of 21 months from the start point of sentence. You should be given some deduction for the partial recoveries of the monies I will deduct a further 3 months from your sentence to reflect that, leaves a balance of 18 months.
13. There are no other deductions that can or should be made from your sentence. On both these charges convicted and sentenced to 18 months in prison, remand in custody time to be deducted.
14. There is a second matter facing you that you pleaded guilty to namely information S3498/14 stating that on the 16 October 2014 you did steal AUD $3,00.00 in monies the property of Fexco Samoa Limited. The police summary of facts in relation to that matter which you have also accepted states that on Thursday, 16 October 2014 you went to the Motootua branch of Western Union with your son to uplift money sent to you from your father in Australia. After uplifting your $350.00 as you were leaving Western Union the defendant saw monies stacked on a desk. The defendant picked up her son and grabbed one of the stacks of money and left the Fexco office. Unknown to her what she did was captured on the security CCTV camera of the Fexco office.
15. The defendant made her way to Vaitele where she counted what she had taken and discovered it was $3,000 AUD. She visited the ANZ Bank branch at Vaitele and converted it to SAT$5,900.00. The summary of facts then goes on to say the defendant and her son went to the Polynesian Airlines office and bought two one-way tickets on Virgin Australia to Sydney Australia. She paid cash for the purchase.
16. The summary goes on to refer to other cash amounts expended by the defendant on taxi fares and on a dinner and night out at the Tanoa Tusitala Hotel as well as one of the local nightclubs. She also spent cash on the purchase of beer and spirits and when the defendant was apprehended by the police they were only able to recover $700. The summary also notes the police have in their custody a refunded cheque of SAT$2,845.32 from Polynesian Airlines in respect of the unused air tickets. In respect of those funds being held by the police it is ordered they be released to the complainant in this matter Fexco Samoa Limited as partial restitution for their loss.
17. Again this is another instance of Catherines opportunistic offending. She saw unguarded money and took advantage of the opportunity to take it. In respect of this charge I undertake a similar exercise to the previous one I start sentencing at 2 years in prison and end up after making the same deductions with an end sentence of 18 months in prison. Because madam that is a different offence and committed on a different date and victim that period is cumulative to your previous term which means you will serve a total of 3 years in prison for these two matters less remand in custody time.
18. Mose you only face sentence for the Kingdom Builders matter. It is clear from what I have heard that you played a much lesser role in the theft. You also have a clean criminal record unlike Catherine. I have read your pre-sentence report it is a good report and favourable. It refers to how you are providing for Catherines children from a prior union as well as your own other family responsibilities. It is also in your favour that some of the money that the two of you stole has been recovered and of course that you pleaded guilty to the charge.
19. In respect of that charge and your part in that theft you will be convicted and sentenced to 4 months in prison, time spent in custody awaiting sentence to be deducted from that. Faafetai ua maea.
    

JUSTICE NELSON