Police v Evagelia [2016] WSSC 100 (29 February 2016)

IN THE SUPREME COURT OF SAMOA
Police v Evagelia [2016] WSSC 100

Case name:	Police v Evagelia
Citation:	[2016] WSSC 100
Decision date:	29 February 2016
Parties:	POLICE (Prosecution) MARIANIA EVAGELIA, female of Siusega. (Defendant)
Hearing date(s):	-
File number(s):	S621/15, S622/15, S623/15, S618/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	F Ioane for prosecution T Leavai for defendant
Catchwords:	Total sentence - gesture of leniency
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MARIANIA EVAGELIA, female of Siusega.
Defendant

Counsel: F Ioane for prosecution
T Leavai for defendant

Sentence: 29 February 2016

SENTENCE

1. The defendant has pleaded guilty to four charges of theft as a servant. The police summary of facts says she is a 24 year old female of Siusega and the complainant in this matter is Trade Company Limited of Vaitele-tai.
2. At the time of the offending the defendant was employed as an accountant and finance officer. Part of her duties included handling cash sales and monies from deliveries on a daily basis for the company.
3. The summary of facts records that for deliveries made by the company trucks to various shops, all delivery drivers are required to submit a form summarizing sales for the day and attaching the receipts. At the end of the day this documentation together with the cash collected is taken to the defendant and counted. The defendant is then responsible for receipting the monies and entering the daily transactions into the companys computer system.
4. On four separate occasions from 02 October 2013 to 31 October 2013, the defendant received monies from the Savaii delivery truck driven by her co-defendant in this matter.
5. The two of them acting together conspired to steal the proceeds from the company. Details of this offending are contained in the four charges: information S621/15 in the amount of $4,669.90; information S622/15 in the amount of $5,330.81; information S623/15 for the amount of $6,598.71; and finally information S618/15 in the amount of $8,436.48. The total amount stolen by the defendant and her co-defendant $25,035.90 over the period 02 October 2013 to 31 October 2013. The maximum for the offence of theft as a servant is 10 years imprisonment.
6. The police say the defendant is not a first offender and they want her previous conviction taken into account as a factor aggravating the present offences. It is correct the defendant has a previous conviction record. That is not disputed by her counsel. She appeared before this court on 13 August 2014 and was sent to prison on two counts of theft as a servant and other charges.
7. The amounts involved in those charges were significantly less than what is involved in the present charges and because she had repaid the small amounts that she was charged with, she received a 6 months penalty of imprisonment. But it appears the thefts covered by those previous convictions are the same kind of offending as the present charges. It involves the same employer and involved the period of the defendants employment by that employer except that the present charges pre-date those charges.
8. All charges should have been brought together by the police but for reasons that are not clear they were not. The police have accepted that it is still part and parcel of the one series of offending committed by the defendant. As counsel for the defendant has correctly pointed out the matter should have been brought and dealt with together by the court.
9. Because of these circumstances, it is appropriate the previous conviction of the defendant should, for present sentencing purposes, be taken into account based on the principle of totality of sentencing and achieving a fair and just sentence for the entirety of the defendants criminal conduct. It is not conducive to the timely and efficient administration of justice that the police should bring serious matters such as this on a piece meal or drip feed basis to the court.
10. This is not the first time I have encountered this problem. I do not know the experience of my fellow Judges but for my part, I would strongly discourage this practice by the prosecution of bringing part of it first and the rest of it later.
11. Having said that, I do accept however that in the circumstances of the totality of the defendants offending, I accept the prosecution submission that a 5 year start point for sentence is appropriate. But there will be no uplift for the previous conviction because it is part of the whole offending package.
12. From that 5 year starting point Mariania, you are entitled to certain deductions which your lawyer has referred to and which I will make.
13. Firstly for your guilty plea, one-quarter of sentence deduction is appropriate because your guilty plea has saved the courts time and it expresses your remorse as well as anything. That is a period of 15 months, leaves a balance of 45 months. You will be treated as a first offender with a clean record, you have a good background in accordance with the pre-sentence report. For that I deduct 6 months, leaves 39 months.
14. You have already served a 6 month prison term. I will deduct that as well from the balance of your sentence because that term is a term for this offending, that leaves a balance of 33 months.
15. As a gesture of leniency and to reflect the unsatisfactory manner in which this case has been prosecuted and the impact that it has undoubtedly had on you in having to serve time and then being again surprised by further charges, I will make the unusual deduction of a further 6 months from your sentence. That leaves a balance of 27 months.
16. There are no other deductions that can be deducted to your case for this matter Mariana. As a total sentence for these four charges you are convicted and sentenced to 27 months in prison. So the total sentence will be 27 months for these four charges that have been brought.
    

JUSTICE NELSON