Police v Faiauga [2015] WSSC 81 (20 July 2015)

SUPREME COURT OF SAMOA
Police v Faiauga [2015] WSSC 81

Case name:	Police v Faiauga
Citation:	[2015] WSSC 81
Decision date:	20 July 2015
Parties:	POLICE (prosecution) v TINOUSI FAIAUGA male of Lotoso’a, Saleimoa (accused)
Hearing date(s):
File number(s):	S274/14-S2752/14, S2870/14, S2877/14-S2931/14, S2995/14-S2330/14
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 3½ years imprisonment
Representation:	L Sua-Mailo for prosecution F E Niumata for accused
Catchwords:	Theft as a servant – false accounting – maximum penalty – early guilty plea – aggravating features in relation to the offending – significant breach of trust – extend of the offending – impact of the offending – premeditation – mitigating features – cooperation with prosecution – previous good character - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.161,s.165 (e), s.198
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S274/14-S2752/14, S2870/14,
S2877/14-S2931/14, S2995/14-S2330/14

BETWEEN

P O L I C E
Prosecution

A N D

TINOUSI FAIAUGA female of Lotoso’a, Saleimoa.
Accused

Counsel:
L Su’a-Mailo for prosecution
F E Niumata for accused

Sentence: 20 July 2015

S E N T E N C E

The charges

1. The accused Tinousi Faiauga of Lotosoa, Saleimoa, appears for sentence on two hundred and eight (208) joint charges of theft as a servant, contrary to s.161 of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment under s.165 (e), and two hundred and twenty (220) individual charges of false accounting, contrary to s.198 of the Act, each of which carries a maximum penalty of 7 years imprisonment. To all charges, the accused pleaded guilty at the earliest opportunity.
2. Because the co-accused with whom the accused are jointly charged with theft as a servant have pleaded not guilty to those charges and their trial is pending, what I am about to say in this decision is to be taken as restricted only to the accused for present sentencing purposes. Anything said here which refers to or may reflect in any way on any of the co-accused is not to be taken against that co-accused for the purpose of his or her trial. The reason why the accused is sentenced today is because the prosecution wants to call her as a witness in the trial of her co-accused.

The offending

3. At all material times, the accused was employed as a finance officer by Ah Liki Wholesale Ltd at Palisi.
4. As it appears from the persecution’s summary of facts, when a customer comes to Ah Liki Wholesale to buy goods on wholesale, he would pay his goods at one of the frontline cashiers. The payment and description of the goods are then entered electronically by the cashier into the company’s system called the retail management system. The transaction is then shown on a summary generated by the system. This summary is kept by the cashier until the end of the day when it is submitted to the accused as finance officer. At the same time that the transaction is shown on the summary, the transaction, including the relevant invoice, is also transferred electronically by the system to the finance office where the accused had worked as finance officer. The transaction would be retained in the system.
5. At the end of each day, the cashiers would come to the accused as finance officer and submit to her their summaries. The accused, as one of her duties, would then check the transactions in the summary from each cashier whether they correspond with the transactions that had been electronically transferred to the finance office in the system. The accused would then post the transactions to the company’s general ledger.
6. What had happened, according to the prosecution’s summary of facts, was that the accused and three of the cashiers entered into a plan to defraud their employer. What they did in the execution of that plan is not entirely clear because of the complexity of the system used. But it is sufficient to say with confidence on the basis of the summary of facts that the three cashiers with the assistance of a sales officer removed the documents, presumably invoices, for a large number of transactions for the period from 1 November 2013 to 15 October 2014. The accused, on the other hand, did not post those transactions to the company’s general ledger as she was supposed to do but deleted them from the system. The monies represented by these transactions were then taken by the accused and her co-accused.
7. The accused also made two hundred and twenty false accounting entries to cover up this fraud and to deceive her employer.
8. As the prosecution’s summary of facts also shows, the thefts were committed over a period of just more than twelve months from 7 October 2013 to 10 October 2014. The amounts stolen ranged from $10.50 to $12,938.90. The total amount of the money stolen was $461,196.02.

The accused

9. The accused is 30 years. She is married and has a 5 year old daughter. She has had a good academic background having studied nursing at the National University of Samoa. She started working as a finance officer for Ah Liki Wholesale in 2007 until her employment was terminated because of this offending.
10. The accused is a first offender. The character testimonials from the accused’s mother, her husband, various ministers of religion including the pastor of her church, the Member of Parliament of her district, and the pulenuu of her village all show that the accused had been a person of good character prior to the commission of these offences.

The victim

11. The victim impact report shows that this is the largest theft case that has been experienced by the victim company so far. It shows that the victim has experienced several theft cases before.
12. As a result of this offending, the victim has had to recruit other staff members to replace the accused and her alleged co-offender with consequential loss of productivity while the new staff were being trained. The victim has also had to spend time and effort to change and improve its security procedures. The cashflow of the victim has also been adversely affected thus placing on hold all pay reviews and increases for other staff members for the past twelve months. This offending has therefore affected other staff members.

The aggravating features relating to the offending

(a) Significant breach of trust

13. The accused was a finance officer in Ah Liki Wholesale which was a position of financial trust. The total amount stolen of $461,196.02 is a very substantial amount of money by Samoan standards. The accused then made false accounting entries to conceal her fraud. This is a significant breach of trust which is an aggravating feature relating to the offending.

(b) Extent of the offending

14. This offending was committed over a period of twelve months and involved two hundred and eight(208) separate incidents of theft and two hundred and twenty(220) instances of making false accounting entries to cover up the fraudulent activities. This is also an aggravating feature relating to the offending.

(c) Premeditation

15. The high degree of premeditation involved in the planning, commission, and cover up of this offending is another aggravating feature relating to this offending. This was systematic defrauding of an employee.

(d) Impact of the offending

16. The impact of the offending on Ah Liki Wholesale and members of its staff members whose pay reviews and/or increases have been put on hold is another aggravating feature relating to this offending.

The mitigating features relating to the accused as offender

(a) Previous good character

17. The previous good character of the accused as shown from her character testimonials is a mitigating feature relating to the accused as offender.

(b) Cooperation with the prosecution

18. I assume from the fact that the prosecution will be calling the accused as a witness in the trial of her co-accused that she is willing to do so. The willingness of an accused to give evidence as a witness of the prosecution in the trial of co-offender is a mitigating feature relating to the accused as offender for which the accused is entitled to some credit.

(c) Guilty plea

19. The accused’s gully plea at the earliest opportunity in this complex theft case is an important mitigating feature relating to the accused as offender.

Discussion

20. In passing sentence in this case, I will apply the totality principle of sentencing. Having regard to the high degree of prevalence of this type of offending, the maximum penalty of 10 years imprisonment for theft as a servant, and the aggravating features relating to the offending, I will take 6½ years as the starting point for sentence as suggested by counsel for the prosecution. I will deduct 10 months for previous good character. That leaves 5 years and 8 months imprisonment. I will deduct a further 6 months for the accused’s cooperation by being willing to be called as a witness for the prosecution in the trial of her co-accused. That leaves 5 years and 2 months. I will then deduct 1/3 for the early guilty plea. That leaves 3 years and 6 months.
21. I must also point out, that in applying the starting point approach the last mitigating feature relating to the accused as offender to be taken into account for deduction is the guilty plea of the accused.

Result

22. For each charge of theft as a servant which involved $10,000 or more, the accused is convicted and sentenced to 3½ years imprisonment.
23. For each charge of theft as a servant which involved $7,000 or more but less than $10,000 the accused is convicted and sentenced to 3 years imprisonment.
24. For each charge o theft as a servant which involved $4,000 or more but less than $7,000, the accused is convicted and sentenced to 2½ years imprisonment.
25. For each charge of theft as a servant which involved $1,000 or more but less than $4,000, the accused is convicted and sentenced to 2 years imprisonment.
26. For each charge of theft as a servant which involved $500 or more but less than $1,000 the accused is convicted and sentenced to 12 months imprisonment.
27. For each charge of theft as a servant which involved $100 or more but less than $500, the accused is convicted and sentenced to 6 months imprisonment.
28. For all charges of theft as a servant which involved less than $100, the accused is convicted and sentenced to 3 months imprisonment.
29. For the charges of making false accounting entries which involved amounts of $10,000 or more, the accused is convicted and sentenced to 3 years imprisonment.
30. For the charges of making false accounting entries which involved $7,000 or more but less than $10,000, the accused is convicted and sentenced to 2½ years imprisonment.
31. For the charges of making false entries which involved $4,000 or more but less than $7,000, the accused is convicted and sentenced to 2 years imprisonment.
32. For the charges of making false accounting entries which involved $1,000 more but less than $4,000, the accused is convicted and sentenced to 12 months imprisonment.
33. For the charges of making false accounting entries which involved $100 or more but less than $1,000, the accused is convicted and sentenced to 6 months imprisonment.
34. For the charges of making false accounting entries which involved $100 or more but less than $1,000, the accused is convicted and sentenced to 3 months imprisonment.
35. All the sentences for the theft as a servant charges and the making of false accounting entries charges are to be concurrent. The accused will therefore effectively serve an end sentence of 3½ years imprisonment.
    

CHIEF JUSTICE