Police v Wilson [2015] WSSC 5 (30 January 2015)

SUPREME COURT OF SAMOA
Police v Wilson [2015] WSSC

Case name:	Police v Wilson
Citation:	[2015] WSSC
Decision date:	30 January 2015
Parties:	POLICE v JOYCE WILSON
Hearing date(s):
File number(s):	S3658/14-S3695/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 4 years and 8 months imprisonment. - All sentences to be concurrent. - Time spent in custody pending the outcome of this matter is to be deducted from that sentence.
Representation:	O Tagaloa for prosecution Accused in person
Catchwords:	Theft as a servant – forgery –altering or reproducing documents with intent to deceive – maximum penalty – deterrence and prevalence – aggravating and mitigating features - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.165 (e)
Cases cited:	Key v Police [2013] WSCA 3
	Police v Samau [2010] WSSC 163 Police v Tevaga [2012] WSSC 35
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S3658/14-S3695/14

BETWEEN

P O L I C E

Prosecution

A N D

JOYCE WILSON female of Moamoa and Moataa.
Accused

Counsel: O Tagaloa for prosecution

Accused in person

Sentence: 30 January 2015

S E N T E N C E

The charges

1. The accused Joyce Wilson appears for sentence on one hundred and nine (109) charges of theft as a servant pursuant to s.161 of the Crimes Act 2013 for which s.165 (e) provides a maximum penalty of 10 years imprisonment on each charge, one hundred and one (101) charges of forgery pursuant to s.194 of the Crimes Act 2013 which also provides a maximum penalty of 10 years imprisonment on each charge, and one hundred and nine (109) charges of altering or reproducing documents with intent to deceive pursuant to s.196 of the Crimes Act 2013 which provides a maximum penalty of 7 years imprisonment on each charge. To all of these charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts which was confirmed by the accused, at the time of the offending the accused was employed by Fletcher Construction Co Ltd (the company) as an office manager at its Vaitele office. Her duties and responsibilities included managing general office duties, looking after accounts and finances, and ensuring that the company’s creditors were paid. The accused was also one of the three signatories to the company’s cheques but the signatures of only two of those signatories were required for a company cheque to be valid.
3. What happened was that the accused would prepare a cheque for payment of the company’s expenses to various agencies and gave it to the general manager to sign. After the general manager had signed the cheque and it was returned to the accused, the accused would use a “white out” to delete the name of the agency to whom the cheque was made out and wrote the word “cash” on the write out. The accused would then write her initials above “the correction” and forged the general manager’s initials next to her initials. In this way, the correction appeared genuine and had been verified through the two initials signed next to the correction. The accused would then take the cheque to one of the Westpac Bank branches and cashed out the cheque and kept the monies for her personal use.
4. The prosecution’s summary of facts also shows that on one hundred and nine (109) separate occasions between 11 January 2013 and 14 October 2014, the accused would prepare cheques for the company, have the general manager sign them off, and then delete the name of the agency to which the cheque was to be paid out and wrote in the word “cash” instead. The accused would then cash these cheques at the bank. All of this was done without the knowledge and authorisation of the general manager. The individual amounts of these cheques ranged from $351.54 to $18,755. The total amount of all the cheques is $228,390.12.

The accused

5. The pre-sentence report shows that the accused is a 35 year old female of Moamoa and Moataa. She is married with four children. She is now a solo mother as her husband has left her. Her father passed away in 2012 and she now has the care of her mother.
6. The accused finished school at Year 11. She then did some further studies on a part time basis from which she was awarded with certificates in computing, tourism, and hospitality. After her studies, she held various jobs with different companies until 2010 when she was employed by Fletcher Construction Co Ltd until her employment was terminated due to this offending. The accused told the probation service that some of the monies from the company cheques that she altered and forged were given to staff members who came to her for money. Some of the monies were given to relatives and friends who contacted her for help while the rest of the money she used for herself. Whether or not it is true that part of the money went to other staff members or the accused’s relatives and friends, the large bulk of the money must have been used by the accused herself.
7. Even though the accused has been to apologise to the general manager of the company, the general manager told the probation service that he saw that the accused was not sincere in her apology; she was apparently apologising only for the purpose of her Court case as she was not willing to cooperate with the police to discover some of the money she had misappropriated. The accused was also not willing to pay back any of the money and none has been repaid.
8. The accused is a first offender. Her uncle told the probation service that the accused is a pleasant and loving person who cares for her children. I do not give weight to this testimonial from the accused’s uncle. It is natural for a mother to care for her children. But such natural love is not necessarily a sign that the mother is a person good character. The written testimonial from the pastor of the Assembly of God Church at Leone only attests to the fact that the accused had attended that Church until she was married and that she held the position of deacon in the Church. There is nothing about the character of the accused or any good deeds performed by the accused as a member of the Church. It is also noticeable that there are no testimonials from the other previous employers of the accused.

The victim

9. The victim in this case is a well known construction company. The victim impact report shows that apart from the loss to the company of the total amount of $228,390.12 stolen by the accused, the company has also suffered other related losses. Firstly, the estimated costs in excess of $25,000 involved with staff and other agencies such as legal and accounting services in identifying the losses caused by the accused and making good the damage; secondly, expenses in implementing new systems to prevent further occurrences of similar issues; thirdly, indentifying new staff requirements to both avoid a repetition of this type of incident and to bring the company’s accounts department back to operating staff levels; and, fourthly, the costs of reimbursing the company’s creditors for the funds misappropriated by the accused.
10. The victim impact report also states that this episode has created a feeling of mistrust between employees and management, has had a generally bad effect on staff morale, and has also affected the reputation of the company with its creditors. The accused has also shown no genuine remorse to the company, has not cooperated with the police in recovering any of the money, and has not paid back any of the money.

The aggravating factors

11. There are several aggravating factors in relation to this offending. The first is the serious breach by the accused of the trust vested by her employer in her. The accused was employed as an office manager which is a senior managerial position in the company. In that position, the accused was one of the signatories to the company’s cheques. Her duties and responsibilities included looking after the company’s accounts and finances as well as enduring that the company’s creditors were paid. By altering and forging the company’s cheques after being signed by the general manager and then cashing those cheques and taking the money herself, the accused was in serious breach of her duties and responsibilities and the trust her employer had placed in her. Undoubtedly, the accused was in a senior position of financial trust in the company. Secondly, this was not a one-off or isolated incident of fraud. These were one hundred and nine (109) separate incidents of fraud committed over a period of about one year and nine months from 11 January 2013 to 14 October 2014. This clearly shows that a high degree of planning and premeditation was involved on the part of the accused. The offending only stopped when it was discovered. The third aggravating factor is the total amount of $228,390.12 involved in this offending. This is very high indeed by Samoan standards and as far as I am aware this must be the highest amount involved in a case of theft as a servant that has come before the Courts. It suggests deliberate dishonesty practised out of greed. The fourth aggravating factor is the impact of the offending on the company as shown from the victim impact report. There is no aggravating factor personal to the accused as offender.

The mitigating factors

12. There is no mitigating factor relating to the offending. In terms of mitigating factors personal to the accused as offender, I have decided not to treat the first offender status of the accused as a mitigating factor. This is because on its own the first offender status of an accused does not necessarily show whether the accused had been a person of good character prior to the commission of an offence. The first offender status of an accused is therefore said to be neutral: Key v Police [2013] WSCA 3. Something more needs to be shown in order for the first offender status of an accused to be counted as evidence of previous good character and therefore a mitigating factor personal to the accused. The oral testimonial from the accused’s uncle and the written testimonial from the pastor of the Assembly of God Church at Leone do not sufficiently demonstrate that the accused was a person of good character prior to the commission of these offences. The only mitigating factor personal to the accused as offender in this case is her plea of guilty at the earliest opportunity. I have decided to give the accused a 1/3 discount for her guilty as this appears to be a complex fraud case and the accused’s guilty plea has saved the Court and the prosecution much time which would have been spent if the accused had pleaded not guilty.

Deterrence and prevalence

13. 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 be conflated with the idea that the Courts should impose sentences that will stop the commission of crime altogether. Crime is more a social problem than a legal problem. Its roots lie outside of the Court system. Unless the roots of crime are removed, sentences imposed by the Courts are not going to stop the commission of criminal offences altogether. For example, the crime of theft. It goes back for more than 2,000 years in the history of mankind. It is mentioned in the Ten Commandments: Exodus, chapter 20, verse 15. Punishments imposed for theft over the centuries have not obliterated it from the face of society. It will therefore be a mistake to think that severe sentences will stop altogether the commission of crime in society. The causes of crime lie outside the Court system.

Discussion

14. Because of the number of thefts committed by the accused over a period of about one year and nine months, I will apply the totality principle for sentencing. Having regard to the increased maximum penalty of 10 years imprisonment provided in s 165(e) of the Crimes Act 2013 for theft as a servant, the need for deterrence in this type of case, and the aggravating factors relating to the offending, I will take 7 years as the starting point for sentence. In doing this, I am conscious of two recent sentencing decisions of this Court for theft as a servant where the starting point was set at 7 years. These are the cases of Police v Samau [2010] WSSC 163 and Police v Tevaga [2012] WSSC 35. I will deduct a 1/3 discount for the guilty plea at the earliest opportunity. That leaves 4 years and 8 months.

Theft as a servant charges

15. (a) For the charge involving the amount of $18,755.00, the accused is sentenced to 4 years and 8 months imprisonment.

(b) For each of the charges involving amounts of more than $12,000 but less than $18.000, the accused is sentenced to 4½ years imprisonment.

(c) For the charge involving the amount of $9,000.59, the accused is sentenced to 4 years imprisonment.

(d) For each of the charges involving amounts of more than $6,000 but less than $9,000, the accused is sentenced to 3½ years imprisonment.

(e) For each of the charges involving amounts of more than $3,000 but less than $6,000, the accused is sentenced to 3 years imprisonment.

(f) For each of the charges involving amounts of $1,000 or more but less than $3,000, the accused is sentenced to 2½ years imprisonment.

(g) For each of the remaining charges involving amounts of less than $1,000, the accused is sentenced to 2 years imprisonment.

Forgery charges

16. (a) For the charge involving the amount of $18,755.00, the accused is sentenced to 4 years imprisonment.

(b) For each of the charges involving amounts of more than $12,000 but less than $18.000, the accused is sentenced to 3½ years imprisonment.

(c) For the charge involving the amount of $9,000.59, the accused is sentenced to 3 years imprisonment.

(d) For each of the charges involving amounts of more than $6,000 but less than $9,000, the accused is sentenced to 2½ years imprisonment.

(e) For each of the charges involving amounts of more than $3,000 but less than $6,000, the accused is sentenced to 2 years imprisonment.

(f) For each of the charges involving amounts of $1,000 or more but less than $3,000, the accused is sentenced to 18 months imprisonment.

(g) For each of the remaining charges involving amounts of less than $1,000, the accused is sentenced to 12 months imprisonment.

Altering or reproducing documents with intent to deceive

16. (a) For the charge involving the amount of $18,755.00, the accused is sentenced to 3 years imprisonment.

(b) For each of the charges involving amounts of more than $12,000 but less than $18.000, the accused is sentenced to 2½ years imprisonment.

(c) For the charge involving the amount of $9,000.59, the accused is sentenced to 2years imprisonment.

(d) For each of the charges involving amounts of more than $6,000 but less than $9,000, the accused is sentenced to 18 months imprisonment.

(e) For each of the charges involving amounts of more than $3,000 but less than $6,000, the accused is sentenced to 12 months imprisonment.

(f) For each of the remaining charges, the accused is sentenced to 9 months imprisonment.

17. All of the above sentences are to be concurrent so that in effect the accused will serve a sentence of 4 years and 8 months imprisonment. Any time the accused has been in custody pending the outcome of this matter is to be deducted from that sentence.

Honourable Chief Justice Sapolu