Police v Tavita [2016] WSSC 101 (29 February 2016)

IN THE SUPREME COURT OF SAMOA
Police v Tavita [2016] WSSC 101

Case name:	Police v Tavita
Citation:	[2016] WSSC 101
Decision date:	29 February 2016
Parties:	POLICE (Prosecution) SAMANTHA TAVITA female of Papauta and Vaivase-uta. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On this matter, you will be convicted as a sentence for both charges and sent to prison for 18 months
Representation:	F Ioane for prosecution Defendant unrepresented
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SAMANTHA TAVITA, female of Papauta and Vaivase-uta.
Defendant

Counsel: F Ioane for prosecution
Defendant unrepresented

Sentence: 29 February 2016

SENTENCE

1. The defendant has pleaded guilty to two charges: information S2095/15 that on 08 January 2015 being a servant of Samoa Breweries Limited, she did dishonestly take $7,960ST in cash the property of her employer. Secondly, S2094/15 that on 27 May 2015 being a servant of the Breweries, she did dishonestly take $5,000 cash, the property of her employer.
2. The prosecution summary of facts which does not appear to be in dispute says she is a 36 year old female of Vaivase-uta, married with six children. At the time of the offending she was employed as an Area Manager for the Sales Department of the Breweries. Paragraph 6 of the summary says she was also responsible for collecting payments from customers and for ensuring that monies collected are turned into the Finance Department and properly receipted.
3. On 08 January 2015, she collected a payment from KK Mart Supermarket for credit sales of goods by the supermarket. This was for an amount of $7,960. Instead of turning that money into the Finance Department, she kept and used it for her own personal purposes.
4. The summary goes on to record that on 27 May 2015, she collected another payment from the One on One Supermarket again being a payment for credit sales. This was a cash payment for $5,000. Paragraph 10 of the summary of facts records that after receiving the money she did not turn it into the Breweries Finance Department but kept and used it for her own purposes.
5. The summary goes on to state that the matter was only discovered when the Breweries investigated the outstanding credit sales payments from the two supermarkets after the supermarkets confirmed they had already paid for these credit sales. The matter was accordingly referred by the Breweries to the police and on 30 June 2015, the defendant was apprehended by police and charged.
6. The defendant has now made repayment of $12,000 of the $12,960 she admits stealing. Perhaps her counsel is correct, had she made restitution of that amount earlier there may have been a different outcome to the present matter but restitution was not made until 21 January this year, some many months after charges had been filed. I am still however prepared to take that restitution into consideration because restitution for companies operating in a small jurisdiction such as ours, in my view, carries greater weight than would normally be the case in more developed jurisdictions and societies. Sometimes it can mean the difference between a business turning a profit and it not.
7. The penalty should reflect the difference between larger jurisdictions and our small jurisdiction. But restitution cannot be a way to buy oneself out of a prison term, that is not the law in this country and if it were to be approached in that fashion no one would go to prison for this sort of behaviour and employers would be robbed blind by their employees without severe penalty.
8. The maximum for theft as a servant is 10 years imprisonment. That is an increase from seven years in prison which was the previous term set by Parliament. Only recently increased by Parliament to 10 years. That is because this is one of the most common and prevalent offences in this country and Parliament as well as the Court is trying to deter people from committing this offence.
9. For the sake of clarity not all cases are punished by 10 years in prison, instead the court adopts a start point for sentence based on the circumstances of the particular case. In fixing a start point for this case the court must take into account the senior position held by the defendant. She was not a truck driver, she was an Area Manager for the Sales Department. The degree of trust invested in her to collect and faithfully account for monies of the company was therefore high. In violation of that trust she stole on two separate occasions a total sum of $12,960. That is a significant sum of money and this is not a one-off offending, this was done on two occasions four months apart tending to suggest that once she got away with it the first time, she tried it the second time.
10. Her counsel has argued strongly that this is a case of low-level criminal offending. I respectfully disagree because in the circumstances that I have related this cannot be said to be low-level criminal offending. Shop lifting a candy bar from a supermarket is what I would call low-level criminal offending, this is far from it.
11. The court must also have regard to the fact that this sort of offending is very prevalent especially among young females, many of whom are mothers with children. While the court can understand the pressures on a young working mother to meet family commitments and responsibilities, that cannot excuse or justify stealing from your employer to meet those commitments and responsibilities.
12. In the current public debate on what is corruption, it is frequently overlooked that theft from your employer is a common form of corruption. Many young working mothers are serving time at Tafaigata for this behaviour, I see them in my court almost every Monday. It is regretful that such sentences imposed by the court impact on the young families and young children of such mothers because the families and the children are quite innocent. They are the victims of a defendants own behaviour and conduct. It is of paramount importance that the law continues to send the message that if you engage in this sort of activity, Tafaigata is likely your fate.
13. Considering all the relevant circumstances I accept the prosecution submission that the start point for your case should be four years imprisonment. But as your counsel has correctly identified, there are factors in your favour and I will make deductions for those factors. For your guilty plea I will deduct one-quarter of your term which reflects that guilty plea and saved the courts time and which indicates your remorse for what you did, that is a period of 12 months, leaves a balance of 3 years.
14. You are a first offender, you have a very good background. You have attained a high level of education, there are references submitted by your friends speaking well of you and one I think from your husband. Unfortunately there is none from your Faifeau or your Pulenu’u as is customary but nevertheless I will give you full credit for your background which is a period of 6 months deducted from the balance of your sentence, leaves 2½ years. In relation to the restitution that you have made, although it is not 100% restitution it is effectively full restitution as you have paid back $12,000 of the $12,960 that you took.
15. Counsel has also cited the case of Police v Leapai to the court where a defendant who made restitution was given probation. Unfortunately, that case was 10 years ago prior to the new legislation. And having read the court file on that matter, it is a case restricted to its own particular facts, it cannot be used as a precedent for other cases.
16. To reflect the restitution that you have made I will deduct 12 months from the balance of your sentence, leaves 18 months in prison. There are no other deductions Samantha that can be made to your case. I wish there were but there are not.
17. On this matter, you will be convicted as a sentence for both charges and sent to prison for 18 months.
    

JUSTICE NELSON