Police v Lafoga [2015] WSSC 254 (25 May 2015)

SUPREME COURT OF SAMOA
Police v Lafoga [2015] WSSC 254

Case name:	Police v Lafoga
Citation:	[2015] WSSC 254
Decision date:	25 may 2015
Parties:	Police (prosecution) v Laumata Lafoga, male of Lefagaoalii Safune
Hearing date(s):
File number(s):	S1239/15 and S1241/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	In respect of each of the charges therefore you are convicted and you are sentenced now to serve a term of 1 year and 10 months imprisonment. That is imposed in respect of both charges but they will run together – in other words, a total of 1 year and 10 months imprisonment.
Representation:	F Lagaaia and L Sua Mailo for prosecution Defendant in person
Catchwords:	Theft as a servant
Words and phrases:	Premeditated offending – significant amount – 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:

Laumata Lafoga, male of Lefagaoalii Safune
Defendant

Counsel: F Lagaaia and L Sua-Mailo for prosecution
Defendant in person

Sentence: 25 May 2015

Oral Sentence of Justice E M Aitken

1. Ms Lafoga, you have pleaded guilty to two charges of theft as a servant; the first, that on 16 February this year, you stole $8,000, and the second, that between 16 and 20 February this year or such other period prior to 20 February, you stole a total of $20,158.60.
2. In terms of the facts, you were employed as a district postal officer for Samoa Post but the Post also acted as an agent for the National Bank of Samoa and you were one of the members of staff who was authorized to handle the NBS transactions by receiving and giving money to customers through deposits and withdrawals.
3. Specifically, on 16 February, you committed a serious offence when a customer came into the post office to withdraw money; you processed his request and clearly noticed that he had in excess of $12,000 in his passbook. The next day, you telephoned the man; you told the man to bring his passbook back as you needed to check on the details of it; and he sent his son with the book. You then made a withdrawal of $8,000 from his account (obviously without his knowledge and without his authorization). You altered the balance to reflect that you had taken $8,000 and that left him with around $4,800.
4. When he came a couple of days later to pick up his book, he noticed that the balance had changed and you told him that $8,000 had already been posted on the bank system. He went to the bank in Manase and queried this and eventually it became clear that in fact the money had been taken from his account without his permission and you admitted to doing that.
5. Once this had happened, the bank sent their auditors in to the post office to audit the transactions and they found that a further $20,158 had been received by you – in other words, stolen by you – that fact not being obvious to either the bank or the postal services.
6. In terms of the probation report, which I have read, you explain to the probation officer, and therefore to this Court, that you started taking money back in April of last year. You used to take around $100 per week for food and your bus fare; no doubt not expecting that to be discovered but certainly, you admit to taking the $8,000 and you say that you did this with the help of another employee, who may or may not have been prosecuted.
7. Ms Lafoga, theft as a servant is a very serious offence for which you must go to prison. The question for me is for how long. I will approach your offending, looking at both of the offences in total. I make three points which identify the seriousness aspect of the offending.
8. First of all, the amount that was taken. A total of $28,000 is a significant amount.
9. Secondly, this was obviously what we call ‘premeditated’ or ‘planned’ offending. You cannot take money in a position such as yours without planning how you were going to do it, when you were going to do it and how much you were going to take; and clearly, in respect of the $8,000 that was carefully planned offending but offending which was almost certain, in my view, to be detected.
10. Thirdly, your behaviour was a significant breach of trust. Theft as a servant carries a maximum of 10 years imprisonment and that is because it recognizes that people who offend in that way will be breaching the trust of their employer. Here it was a significant breach. You were obviously a trusted member of staff; you had been there for about 2 years or up to 2 years at the time you started offending, and you were clearly regarded as somebody responsible enough and trustworthy enough to be handling these cash transactions.
11. In fixing the starting point, I have regard to the maximum penalty which is 10 years. I have regard to the amount taken; the method by which you took it; and the frequency of it. I have also had regard to other cases decided in this Court. Now the Attorney General suggests a starting point of 5 years. In my view, that is too high. I have had regard to the offending in the other matters to which I have been referred and certainly, Police v Rita Motuga (13 January 2014, Nelson J) is a helpful matter as is Police v Nora Neemia (13 January 2014, Slicer J). Both of those fix starting points at 5 and 4 years respectively. On the other hand, there is the matter of Police v Seletute Tauauvea (25 March 2013, Vaai J) where the starting point of 2 ½ years was determined.
12. In your particular case, I regard the offending as reflecting a starting point of 3 ½ years – in other words, it is offending where I fix the starting point at around one-third of the maximum penalty. From that starting point, I look then to see if there are matters relating to you personally which require me to increase or decrease the sentence.
13. There are no matters of personal aggravation. In other words, nothing personally that makes the matters worse – and in respect of your personal circumstances, there are two factors which permit me to significantly reduce the sentence from the starting point of 3 ½ years.
14. The first is your previous good character. You are 26 years old. You completed your schooling; you obtained a 2 year business and management degree; and you have been employed since 2009. You are clearly someone with intelligence and ability and it is very sad, Ms Lafoga, to see you standing before the Court, having pleaded guilty to such serious dishonesty. You are married; you have no children; your husband was shocked to learn of the offending. He is currently working and pleads for leniency on your behalf. Your prior good character – and that is attested to in the probation report also – does permit me to reduce the sentence.
15. I do not find you particularly remorseful. There has been no apology to your employer and no effort to repay the amounts, and sadly, it seems to me, that your offending was driven by greed and not by need as you had been working and therefore receiving a salary for many years now.
16. But your prior good character, in my view, should attract a reduction of around 20% which I fix at 10 months, reducing the sentence down to one of 32 months. On top of that, you are also entitled to the maximum credit for your plea of guilty. In this Court that is represented by a reduction of one-third of the sentence which would be a further 10 months and that reduces the sentence down to one of 1 year and 10 months imprisonment.
17. In respect of each of the charges therefore you are convicted and you are sentenced now to serve a term of 1 year and 10 months imprisonment. That is imposed in respect of both charges but they will run together – in other words, a total of 1 year and 10 months imprisonment.

_____________________

JUSTICE E M AITKEN