Police v Pae [2015] WSSC 248 (4 May 2015)

SUPREME COURT OF SAMOA
Police v Pae, Tyrell and Fiti [2015] WSSC 248

Case name:	Police v Pae, Tyrell & Fiti
Citation:	[2015] WSSC 248
Decision date:	04 May 2015
Parties:	Police (prosecution) and Petaia Lapa Pae, Tuulima Tyrell and Naiuli Fiti aka Tavita Fiti (defendants)
Hearing date(s):
File number(s):	S792/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice E M Aitken
On appeal from:
Order:	Petaia Lapa Pae - you are convicted and sentenced to serve a term of 17 months imprisonment. Tuulima Tyrell - you are convicted and sentenced to 6 months imprisonment
	Naiuli Fiti aka Tavita Fiti - You are convicted now and sentenced to serve a term of 6 months imprisonment
Representation:	Precious Chang and Lucy Sio (prosecution) and Defendants in person
Catchwords:	Theft as a servant- pre-meditated offending – use of a weapon
Words and phrases:	Aggravated robbery – breach of trust
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

Petaia Lapa Pae, male of Sa’asa’ai, Mulifanua and Toamua
First Defendant

AND:

Tu’ulima Tyrell, male of Vailoa Faleata
Second Defendant

AND:

Naiuli Fiti aka Tavita Fiti, male of Vailoa Faleata
Third Defendant

Counsel: P Chang and L Sio for prosecution
Defendants in person

Sentence: 4 May 2015

Oral Sentence of Justice E M Aitken

1. Petaia Pae, Tu’ulima Tyrell and Naiuli Fiti, you have pleaded guilty and now appear for sentence in respect of one charge of theft as a servant, you having stolen $5,010.00 from C & B Meredith Petrol Station, your employer.
2. In terms of the facts, you were all employed at that petrol station and you planned to steal money from your employer. Petaia Pae, it seems that the idea may well have been yours and you certainly accept responsibility for taking the lead organization or role.
3. In short, the plan was this: all three of you were on a night shift and Tu’ulima and Naiuli were going to pretend to be asleep in the backroom with you, Petaia, in the front room responsible for the cash. In fact, Petaia, you were the Shift Supervisor that night and at about 1:30 in the morning you started counting the money. The other two then went and briefly served two motor vehicles who had pulled in for petrol before they went back to the backroom. Those two vehicles left the petrol station and a short time after that someone walked into the petrol station and threatened you, Petaia, with a machete and told you to give him the money. However, his presence was planned by you – you had somehow persuaded an associate to participate in this crime to that extent. In other words, you staged an aggravated robbery of the petrol station and led others to believe (at least briefly) that you were the victim of the robbery rather than the thief. This associate of yours, who has never been found, took the money that had been in a plastic bag and ran out of the room with it.
4. You then, in effect, pretended that you had been robbed; you pretended to wake the other two; and the three of you gave chase to this so-called robber. However, it seems that you all ran behind the shop and, I suspect, rather quickly the so-called robber gave the money to you; it was divided up amongst the four of you (or possibly with a fifth person).
5. As a result of others in the community thinking there had been a robbery, people came out at night to help find the robber and no doubt the Police treated it initially as a very serious aggravated robbery of a petrol station by night but the next day, Tu’ulima Tyrell’s uncle found the money in his shoe and it seems that then brought the matter to his attention and from there to the attention of the Police.
6. Now you are charged jointly with theft as a servant because you were all working for the Company at the same time. Tu’ulima Tyrell, you have been there the longest and, as I said, Petaia Pae was the Shift Supervisor that night and takes responsibility for the planning. But I proceed on the basis that the law requires me to the proceed, and that is you are all equally responsible for what had happened.
7. This is serious offending and the following four factors make it particularly serious:
8. Firstly, it was premeditated – in other words, this was planned offending, not something you did on the spur of the moment. In a careful way, you staged an aggravated robbery and you used your knowledge of how the petrol station worked, where the money was, how the shifts worked, to give effect to your plan.
9. Secondly, the offending involved the use of a weapon. None of the three of you used the machete but part of the plan was that this unknown associate would come with the machete to come and pretend to threaten you. The Court always takes offending where there are weapons involved seriously because of the risk that can attach to offences involving weapons, and by way of example I would simply say that, had somebody walked into the store that night to get petrol and seen this man with the machete, then there could have well been some sort of struggle and somebody could have got seriously hurt.
10. Thirdly, there is, of course, the loss to the Company, $5,010.00, although $3,800 has been recovered. But when people steal from their employers it is not just the money or the items that are stolen that cause the harm to the employer, it is also the fact that their employees would steal from them. It is hurtful and it happens a lot in this country and has happened a lot to this Company, as they say in their victim impact statement.
11. And finally, there is the beach of trust which is inherent or part of the offending but here it was a significant breach of trust, particularly on your part, Mr Tyrell as you had been employed by the firm for about 2 years.
12. Now the maximum sentence for theft as a servant is 10 years imprisonment. In your particular case I have had a look at other cases of theft as a servant but there is nothing that I am aware of or the Prosecutor is aware of that is similar to what has happened here – so having regard to those aggravating factors, I fix the starting point at 25% of the maximum penalty – in other words, at 2 ½ years imprisonment.
13. In respect of each of you, I take that starting point and I ask myself are there matters that permit me to reduce the penalty from one of 2 ½ years.

Petaia Lapa Pae

14. Petaia Pae, you are 23 years old and you left school at Year 13. You have been fortunate enough or skilled enough to have obtained work since leaving school and a job since you were fired from C & B Meredith. You are obviously a skilled, hardworking young man and there are good references from your current employer and from your pastor and from the mayor of your village. You have never appeared before the Courts. You are in a relationship and you and your partner have a young daughter. They are dependent on you for support and finance and, of course, in some ways, they are also the victims of your offending.
15. Because you present before the Court as someone of previous good character; someone who was hardworking and capable, I will reduce the sentence by around 15% - in other words, by 5 months down to one of 25 months imprisonment.
16. I will accept that your share of the money has been repaid through the amount handed over by Tu’ulima Tyrell and I accept that you have apologized to the Court but you have made no prior apology to the victim.
17. The only other factor that requires and permits me to reduce the penalty is your very early plea of guilty. You have pleaded guilty at your second appearance and clearly accept responsibility for what has happened you were open and honest with the Probation Officer. The maximum credit I can give you for that is 8 months off your sentence and that reduces the sentence down to one of 17 months imprisonment and in respect of this offence you are convicted and sentenced to serve a term of 17 months imprisonment.

Tu’ulima Tyrell

18. Tu’ulima Tyrell, you are 18 years old; you left school at Year 11; you have been working for your family until you got a job with the victim and you, as I said, are the longest serving employee; you had been there since 2012. You are described otherwise in very good terms by your Pastor and the Mayor, and your mother says she was very shocked at this behaviour and described it as ‘out of character’, not something she would expect you to do. You are a good rugby player; you live with your family and in all other respect are a hardworking and appear to be a sensible young man.
19. Because of that but primarily because you are still very young I intend to reduce the sentence initially by half – in other words, down to one of 15 months imprisonment. I intend to reduce it by another 5 months because of the apology that you made to the victim, which was accepted, and because you repaid the money that you received. Finally, because you entered a plea of guilty at the earliest opportunity, you too are entitled to maximum credit for that and in this case that would reduce your sentence down to one of 6 months imprisonment.
20. I have given careful thought as to whether instead of a term of imprisonment I should impose a community-based sentence but the offending is too serious and this Court needs to send a very firm message that theft as a servant is a serious offence, particularly where weapons are involved in the carrying out of the crime.
21. In the circumstances, you are convicted and sentenced to 6 months imprisonment; that is as merciful a sentence as I can, on a principle, basis imposed.

Naiuli Fiti

22. Naiuli Fiti, you too will be sentenced to 6 months imprisonment for much the same reasons as your co-offender. You are a young man of 18 years old; you left school at Year 11 and this was the first job that you have had since leaving school. Again, there are very good references from the Mayor, from the Pastor and the money you earned had gone to assist your sisters in their schooling fees – so you strike the Court as another good young man who was hardworking and capable. I do accept that this is likely to be ‘out of character’ offending – in other words, something that does not really reflect the real person. Your youth and these other factors reduce the sentence by half, down to 15 months. You too have apologized to the victim; your apology has been accepted and you have repaid the money that you got. That coupled with your plea of guilty, reduces the sentence down to one of 6 months.
23. You are convicted now and sentenced to serve a term of 6 months imprisonment.
24. You have all indicated to the Court that this is the first and last time you will appear – I sincerely hope that this is the case. Should any of you appear for any offences in the future that involve dishonesty or violence then you can expect the Court to take a very hard line.

_____________________
JUSTICE E M AITKEN