Police v Tafale [2016] WSSC 173 (9 September 2016)

THE SUPREME COURT OF SAMOA
Police v Tafale [2016] WSSC 173

Case name:	Police v Tafale
Citation:	[2016] WSSC 173
Decision date:	09 September 2016
Parties:	POLICE (Prosecution) v IEFATA AUAVA TAFALE male of Vailoa Faleata (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	The accused is convicted of the charge of theft as a servant and is ordered to come up for sentence in 12 months. He is not to reoffend within that time otherwise he will be sentenced on this offence and any others he commits.
Representation:	L. Sio for Prosecution Accused in Person
Catchwords:	theft as a servant
Words and phrases:
Legislation cited:	Crimes Act 2013, section.161(a) and section.165(e)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IEFATA AUAVA TAFALE male of Vailoa Faleata
Accused

Counsel:
L. Sio for Prosecution
Accused in Person

Sentence: 9 September 2016

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of theft as a servant, contrary to s.161(a) and s.165(e) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment.
2. He pleaded guilty to the offence at the earliest opportunity on 18 July 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that the accused was employed by Chan Mow Wholesale as a delivery truck driver. On 15 June 2016, sometime in the afternoon when the accused had finished his delivery, he took 8 bags of pampers from the company container and put them into his own car.
4. The value of each bag of pamper is SAT $97.80 with a total value of SAT$780.00.
5. The property was recovered as a result of Police investigation. The accused had sold the property to a third party.

The accused

6. The accused is 52 years old, married with four children.
7. Prior to the offending he had been working for Chan Mow Wholesale for two years. He has now been terminated as a result of this offending. He has not apologised to the employer.
8. He completed the 6 weeks program for drugs and alcohol with Probation because he told the Court that the offending was for the purpose of getting beer. He received a certificate of completion and a good report from the case manager/programme facilitator.
9. He is a first offender.

Aggravating features of the offending

10. A significant aggravating factor is that the accused breached the trust which was placed in him by his employer. He breached this trust by his actions of taking goods belonging to his employer. The accused had worked there for two years and some loyalty to the employer was expected.

Mitigating features of the offending

11. I consider the fact that the property was returned to the company as a mitigating feature of the offending. Ultimately the company did not lose anything except perhaps a dishonest employee.
12. However this mitigating feature is tapered by the fact that the property was recovered as a result of police investigations and after the accused had sold the property to a third party.

Mitigating factors

13. It is a mitigating factor that the accused has completed the programme as directed by the Court.
14. I have read the testimonial from his Reverend that says that the accused is a dedicated member of the church. Despite this, it never occurred to the accused to apologise to his employer.
15. It is a mitigating factor that the accused entered an early guilty plea.

Discussion

16. Prosecution submits that the offending by the accused attracts a non-custodial sentence in the form of a suspended sentence. Probation recommends a community based sentence.
17. Having considered all the circumstances of the offending and of the accused, I agree that a non-custodial sentence is appropriate. He has addressed the cause of his offending, which is the pursuit of alcohol, through his participation in the alcohol and drugs program. Apart from this offending, he has an untarnished record.
18. However it is important that the accused know that his conviction will hang over him for the rest of his life, and given his conviction for theft as a servant, employers will be put on notice and be weary of hiring him. The accused may well discover that finding employment will be difficult. This will no doubt have a huge impact on his family and his ability to provide for his family.
19. While the Court will impose a non-custodial sentence today, it will be a sentence which I believe will deter the accused from further offending and hold him accountable for his actions.

Sentence

20. The accused is convicted of the charge of theft as a servant and is ordered to come up for sentence in 12 months. He is not to reoffend within that time otherwise he will be sentenced on this offence and any others he commits.
    

JUSTICE TAFAOIMALO TUALA WARREN