Police v Swanney [2016] WSSC 139 (3 August 2016)

SUPREME COURT OF SAMOA
Police v Swanney [2016] WSSC 139

Case name:	Police v Swanney
Citation:	[2016] WSSC 139
Decision date:	3 August 2016
Parties:	POLICE and ELENA SWANNEY female of Palisi and Sinamoga (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala Warren
On appeal from:
Order:	The accused is convicted of nine charges of theft as a servant and sentenced to 12 months supervision, with the special condition that she performs 80 hours of community work with Samoa Victim Support Group. She is also ordered to pay $1000.00 costs to the prosecution
Representation:	L. Sua-Mailo for Prosecution V. Lei-Sam for the Accused
Catchwords:	Theft as a servant
Words and phrases:
Legislation cited:	Crimes Act 2013, section.161 (a) and section.165 (e)
Cases cited:	Police v Chadwick [2015] WSSC 15 (5 March 2015), Police v Kitiona Fiamatai (Tuesday 14 May 2013), Police v Ulupoao [2007] WSSC 21 (28 March 2007) R v Barrick (1985) 81 Cr. App. R.78 at pp.81-82 Police v Vala’auina [2009] WSSC 21(6 March 2009) Police v Chadwick [2015] WSSC 15 (5 March 2015), Police v Smith [2013] WSSC ,Police v Rudnick [2010] WSSC
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ELENA SWANNEY female of Palisi and Sinamoga
Accused

Counsel:
L. Sua-Mailo for Prosecution
V. Lei-Sam for the Accused

Sentence: 3 August 2016

S E N T E N C E

The charge

1. The accused appears for sentence on nine counts of theft as a servant, contrary to s.161 (a) and s.165 (e) of the Crimes Act 2013, which each carries a maximum penalty of 10 years imprisonment.
2. She pleaded not guilty to the offence on 4 April 2016, but on 13 July 2016, the date of trial, she was granted leave to change her pleas to guilty.

The offending

3. The Prosecution summary of facts admitted by the accused says that the accused was employed as a legal secretary in Drake & Co, Barristers and Solicitors Law Office. During the course of her employment between 31 January 2015 and 1 December 2015, the accused on nine separate occasions received payments from three of the firm’s judgment debtors without the knowledge and authority of the firm. She told the debtors that they needed to make payments or a warrant would be issued against them. She also redirected them away from the firm to collect their payments. The payments were never given to and therefore not receipted by the firm’s finance division.
4. The money collected by the accused is as follows;
   1. $50.00 on 19 August 2015 from Sialele Siapu;
   2. $100.00 on 7 October 2015 from Sialele Siapu;
   3. $100.00 on 9 November 2015 from Sialele Siapu;
   4. $100.00 between 31 September 2015- 1 November 2015 from Joseph Wiki Curry;
   5. $200.00 between 31 October 2015-1 December 2015 from Joseph Wiki Curry;
   6. $200.00 between 31 January 2015-1 April 2015 from Joseph Wiki Curry;
   7. $50.00 between 21 January 2015-1 April 2015 from Joseph Wiki Curry;
   8. $100.00 between 31 January 2015-1 April 2015 from Joseph Wiki Curry; and
   9. $800.00 between 1 October 2015-31 October 2015 from Pretoria Lauina.
5. The total amount received by the accused from three judgment debtors is SAT$1.700.00. She used this amount for her personal use.
6. Sometime in November 2015 when the accused went to New Zealand, another legal secretary discovered the theft by the accused.

The accused

7. According to the pre-sentence report, the accused is 33 years old from Palisi and Sinamoga. She is married with five children aged 7 months to 13 years.
8. Her education culminated in her attaining a certificate in office administration from the local Institute of Technology. She lost her job with the firm when this offending was discovered but she now works as an administration officer for KEW Consult.
9. Her husband remains supportive of her describing her to probation as a hardworking, supportive, kind hearted and caring wife and mother.
   10. The Chairman of her Parish at Palisi provides a letter saying that the accused is a dependable member of their Parish. He says she is active and respectful, in addition to being honest, reliable and dedicated.
   11. There is a letter from Reverend Taula saying the accused is active and contributes a lot to Parish activities.
   12. There is a letter from the firm confirming receipt of the amount of $1700.00 from the lawyers of the accused.
   13. There is also a letter from Pretoria Lauina, one of the judgment debtors whose money was taken by the accused. She wishes to withdraw the matter as she says there has been reconciliation between herself and the accused.
   14. The accused is a first offender.

Victim

15. There was a victim impact report provided to the Court by Kirsten Drake of Drake & Co.
16. She says that they are disappointed and saddened that the accused stole client monies and used her position in the firm to do so. They feel betrayed by her actions which were deliberately planned.
17. Ms Drake confirms that the sum of $1700.00 was received on 14 July 2016. She sent an email to the firm saying that her family told her to apologise which is regarded by Ms Drake as insincere and late, and does not show genuine remorse.

Aggravating features of the offending

18. A significant aggravating factor is that the accused has breached the trust which was placed on her by her employer. As Sapolu CJ said in Police v Chadwick [2015] WSSC 15 (5 March 2015), cases of theft as a servant always involve a breach of trust by an employee of his/her employer’s trust in him/her. He went onto say that “often the important question is the quality and degree of trust placed by an employer in an employee”. In this case, trust was placed on the accused to not only carry out duties of a legal secretary but also to follow up on clients’ judgment debtors to make their payments.
19. As a consequence of her actions, several parties have been affected; the reputation of the firm to its clients has been affected and three judgment debtors have been affected.
20. It is aggravating as Prosecution submits that the offending was premeditated. The accused rang the debtors and redirected them away from the firm to give their payments to her. She offended over a period of 11 months and collected monies from three different judgment debtors.

Mitigating factors

21. It is mitigating that the money stolen was repaid to the firm. But this is tapered by the fact that it came at a late stage, as a result of being caught.
22. I take into account her five children in particular her 7 months old baby, the fact that she is a good mother, and has been of good character up to this offending.
23. The accused will be given some credit for her belated guilty plea.

Prosecution Submissions

24. Prosecution is seeking an imprisonment term and to adopt 18 months as the starting point for sentence. It is submitted that the facts of this case are similar to Police v Kitiona Fiamatai (Tuesday 14 May 2013) per Nelson J who adopted 18 months imprisonment as a starting point for sentence for an accounts clerk who stole $2000.00.

Defence Submissions

25. Defence Counsel submits that a non-custodial sentence is appropriate in this case given the very small amount of $1700.00. He points to the case of Police v Ulupoao [2007] WSSC 21 (28 March 2007) wherein Sapolu CJ referred to the case of R v Barrick (1985) 81 Cr. App. R.78 at pp.81-82 and found suggestively, that where the amounts of money are very small, the Court is more inclined to impose a non-custodial sentence.

Discussion

26. At the outset, it must be clear, that it is not so much the amount taken which makes theft as a servant serious, it is the breach of trust which is the critical factor.
27. I bear in mind the Court’s words in Police v Vala’auina [2009] WSSC 21(6 March 2009) where it was affirmed;
    • The Courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is not only to deter the offender himself/herself from such future behavior but also others who may be tempted to follow his/her example.
28. Having considered all the circumstances of the offending and of the accused, I find that a non-custodial sentence is appropriate. I am persuaded by Sapolu CJ’s decision in Police v Chadwick [2015] WSSC 15 (5 March 2015), Vaai J in Police v Smith [2013] WSSC 4 and Slicer J in Police v Rudnick [2010] WSSC 48 where the accused were given non-custodial sentences for larger amounts and where full reparation had been made. Her prospects of rehabilitation are promising and given her five children, in particular her young 7 months old baby, she is well advised to use this opportunity wisely and not re-offend. However it is important for the accused to know that her convictions will follow her for the rest of her life, and given her convictions for theft as a servant, she will be limited in employment options open to her. This is a natural and inevitable consequence of her actions. This will no doubt have a huge impact on her family.

Sentence

29. The accused is convicted of nine charges of theft as a servant and sentenced to 12 months supervision, with the special condition that she performs 80 hours of community work with Samoa Victim Support Group.
30. She is also ordered to pay $1000.00 costs to the prosecution.
    

JUSTICE TUALA-WARREN