Police v Wright [2016] WSSC 195 (2 November 2016)

IN THE SUPREME COURT OF SAMOA
Police v Wright [2016] WSSC 195

Case name:	Police v Wright
Citation:	[2016] WSSC 195
Decision date:	02 November 2016
Parties:	POLICE (Prosecution) and TAGAOLO IOSEFATU WRIGHT male Luatuanuu. (Defendant)
Hearing date(s):	-
File number(s):	S3025/15, S3026/15, S3028/15, S1369/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In respect of the three counts of theft of petrol you are accordingly convicted and sentenced to 12 months in prison. On the charge of theft of the plywood, to account for the fact that the sheets were returned, convicted and sentenced to 3 months in prison, concurrent term. Restitution monies of $1,000 to be released to Ministry of Police forthwith.
Representation:	L Sio for prosecution L R Schuster for defendant
Catchwords:	Theft as a servant - sacred oath - aggravating factor - degree of trust - transparency and accountability – ipso facto - mitigating factors - ordinary servant - full restitution
Words and phrases:
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Taylor Miti (unreported judgment 02 August 2010) Matau Milosia (unreported judgment 20 September 2010) Police v Aimaasu (unreported judgment 20 July 2010 of Vaai, DCJ) Police v Uelese [2015] WSSC 113 Police v Chadwick [2015] WSSC 15 Ah Him v Brunt [2013] WSSC 16 Pakau v R [2016] NZCA 177
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAGAOLO IOSEFATU WRIGHT male Luatuanuu.
Defendant

Counsel: L Sio for prosecution

L R Schuster for defendant

Sentence: 02 November 2016

SENTENCE

1. After a defended hearing, defendant was found guilty of three counts of theft as a servant of a total of 120 litres of petrol during 2014 and one count of theft as a servant of four sheets of plywood in January 2015. The said properties belonged to the Maritime Division of the Ministry of Police. At the time the defendant held the rank of Superintendent and headed the Division. The petrol and plywood were kept in the Oil Store of the Division compound at Matautu Wharf. The petrol is used by the Police patrol vessel MV Nafanua and its smaller support craft.
2. Defendants method of operation according to the evidence was that he would wait until the end of the day when few officers were on duty and no outsiders/strangers were in the compound. And then instruct one of his subordinate officers to siphon the petrol using a “fa’aga’au” or hose from the 44-gallon drums in which it was kept into smaller 20 litre red coloured jerry-cans. These were then placed in the boot of his mini-van which he used to drive to and from work. Although only three charges could be proven I was satisfied from the evidence of the many Police officers called that the defendant was engaged over a period of time in the systematic plunder of Police petrol for his own personal purposes. According to some of the witnesses this had been going on for years. I quote from the courts decision handed down on 09 September 2016 paragraph 16:

“The evidence of many other police officers was to the same effect. The defendant habitually siphoned petrol from the 44-gallon drums into smaller jerry-cans which he took away. Not surprisingly the witnesses were unable to provide dates with any degree of accuracy but all agreed it was an ongoing practice engaged in by the defendant who was at the time in charge of the Police Maritime Division and the Motor Vessel Nafanua. This behaviour according to the testimonies spanned 2014 and possibly earlier as well. Chief Electrician for the Nafanua Talia Nukulaelae recalls he did this six times on the defendants instruction over the period of his employment 2010 to 2014. The defendant was able to do this because no separate record was kept covering the ingoings and outgoings of the Division Oil Store. And because he kept the key....”

3. The theft of the 4 sheets of plywood was different. This was one-off offending but again was carried out on the defendants instructions and under his supervision. Paragraph 32 of the decision:

“Information S1369/15 charges the defendant with stealing from his employer the Ministry of Police four hardboard plywoods valued at $688.00. The evidence of Senior Sergeant Simaile Tuatagaloa was that in January 2015 he witnessed the plywood and some wire mesh loaded onto a dyna truck belonging to Sergeant Avele Tuilaepa on the defendants instruction. The plywood came from the Oil Store and belonged to the Maritime Division. It had been ordered for cyclone repair work to the Maritime Base. He said that when he returned from a meeting earlier that particular day, he saw what was happening so took a photo of the plywood and mesh wire in the tray of the dyna. This was produced as Exhibit “P-6” for prosecution. The Sergeant said he took the photo because many things had been happening but there was no evidence. At page 75 of the transcript of his evidence he says:

“Ua tele mea ua ou vaaia, leai se mau maumau tutu o lea tulaga. Ona ou sau lea o’u tau mai ai loa ile la’uga plywood ia ma mea ia ei totonu o le loli a Avele ou sau loa pu’e le ata.”

He also said in cross examination at page 82 that he had witnessed on some occasions the theft of petrol described by the other police officers.”

4. When hearing the evidence I found it disturbing that the defendants subordinate officers including those of senior rank seemed to be part of a Police culture of blind loyalty and obeisance to superior officers. Loyalty and obedience are qualities to be admired but not to the extent of turning a blind eye to what was potentially criminal behaviour on the part of a senior colleague. Only when an investigation was launched did these police officers then feel confident and assured enough to report what they had witnessed. I have struck this in other cases involving Police officers and it is hoped that this kind of inexcusable, neglectful and dishonourable malaise can be permanently purged from the police psyche: and that Police officers of all rank be reminded of the terms of the sacred oath they took before God, the court and the people of this country, an oath which relevantly reads -

“I do swear that I will well and truly serve the Independent State of Samoa without favour or affection; that I will prevent to the best of my power all offences against the same; and that I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. So help me God.”

An oath which Tagaolo deliberately and callously shredded into many little pieces.

5. The maximum penalty for each count of theft as a servant by virtue of section 165(e) and section 165(f) of the Crimes Act 2013 is 10 years imprisonment. The defendant has been found guilty of four counts of theft as a servant, three involving petrol and one involving four sheets of plywood. While the monetary value of these materials is small, the criminality of the defendants offending in my view is not. He held a senior rank in the Police and in the Maritime Division, he was the Officer in Charge. The degree of responsibility vested in him was of the highest order. As was the trust bestowed upon him as a Senior Police Officer. The public as they are entitled to do, put their faith in those who enforce the law. They look to them for protection and assistance in times of desperation and need. The defendant was not of junior rank. As Superintendent he was the third most senior in the Police structure. He has let down all other Police officers who toil honesty and faithfully for long hours and barely adequate recompense. You sir have betrayed these people and these principles. You should be ashamed of yourself.
6. The evidence showed the defendant treated the Maritime Division Oil Store as his own private gas station. He filled up as and when he considered necessary. Openly and flagrantly abused his authority. Setting a deplorable example for junior officers. As officer-in-charge, he were accountable to no one. A state of affairs the court hopes the Ministry of Police have now rectified. Compounding his offending is the fact that he still refuses to take responsibility for his actions. As evidenced from what he told the Probation Office which is contained in their report:

“He strongly believes that he was set up by his police colleagues. Tagaolo believes that some of his colleagues have something against him therefore they have orchestrated this scheme and have blamed him for this matter.”

Considering the overwhelming nature of the evidence produced, I find that suggestion to be utter nonsense.

7. The defendants sentence must send two unequivocal messages to the public at large and to public servants and police in particular: firstly that no one is above the laws of our community. Not you sir, nor I, nor any of those above us. Secondly that anyone tempted to emulate your behavior should have no illusion as to the dangerous path they tread and where it can lead.
8. There is no question in my mind an imprisonment term is appropriate to the defendants offending. But the term must be tailored to the particular circumstances of his case. And take due account of mitigating factors in his favour.
9. Sadly you are not the first Police officer or employee of the Ministry of Police to be sent to prison. Others have paved the way and for terms commensurate with their offending. Unfortunately the prosecution have mentioned none of these cases in their submission. But there exist a number of reported and unreported cases e.g. Police v FE some years ago of a Senior Sergeant who accepted a bribe for releasing a drug suspect on bail, sentenced to 3 years imprisonment; Police v Taylor Miti (unreported judgment 02 August 2010) of a Senior Police Accountant convicted of embezzlement sentenced to 4½ years, his junior colleague Matau Milosia (unreported judgment 20 September 2010) received an 18 months sentence; Police v Aimaasu (unreported judgment 20 July 2010 of Vaai, DCJ) Police Inspector in charge of the Olomanu Juvenile Facility at Mulifanua was sentenced to 3½ years imprisonment for sexual activity with one of the inmates. A recent New Zealand example is Pakau v R [2016] NZCA 177 concerning a Police officer involved in drug and corruption offending. Sentence of 8 years and 4 months upheld by the New Zealand Court of Appeal who commented that “if anything, the judge could be said to have taken a somewhat lenient approach” to the defendant exploiting and using his position as a Police officer to commit his crimes.
10. Counsel for the defence in his oral submission has highlighted a number of theft as a servant cases where offenders received non-custodial sentences. Taking the same approach the prosecution in their submission have referred to cases where imprisonment terms were imposed. What has been overlooked by counsels however is none of these authorities relate to offending by a Police officer, let alone a senior one. They are accordingly of general guidance only.
11. Defence counsel also advanced the novel proposition that because breach of trust is an inherent characteristic of the offending of theft as a servant, that therefore it cannot be regarded as an aggravating factor. He relied on the observations of Aitken, J in Police v Uelese [2015] WSSC 113 at paragraph 7 where she said “but that is inherent in the offending and it is not an aggravating factor or additional factor.” Counsel also relied on Chief Justice Sapolus statement in Police v Chadwick [2015] WSSC 15 at paragraph 12 that “cases of theft as a servant always involve a breach by an employee of his/her employers trust in him/her.”
12. The problem with counsels submission is Uelese was a case of intentional damage to inter alia banana palms and a television set. And the learned justices comments were in relation to the damage caused to the bananas and the TV. Those comments are correct in their context and cannot be applied generically to the case at hand. In relation to Chadwick it is clear the learned Chief Justice treated this as an aggravating factor. Witness the heading of the paragraph quoted by counsel “Aggravating features relating to the offending.” It is however worth noting the entirety of the quote:

“Cases of theft as a servant always involve a breach by an employee of his/her employers trust in him/her. Often the important question is the quality and degree of trust placed by an employer in an employee. In this case, the accused held a senior financial position with the complainant. So the quality and degree of trust placed in her was not insignificant.”

13. Counsel also submitted that what the defendant committed were errors in judgment and for which he will by his conviction endure a life sentence. His prospects of future employment would be practically nil. On this basis counsel sought mercy and leniency for his client. I agree with some of what counsel says but only to the extent that the defendant exercised bad judgment. Had this happened on only one occasion, perhaps consideration could have been given to a non-custodial penalty. But the evidence was clear. The defendants behaviour was planned pre-meditated and occurred over an extensive period of time notwithstanding that only four counts of theft as a servant were proven. While he is being sentenced on the basis of those four charges, the persistent and ongoing nature of his offending as testified to by his fellow officers cannot be overlooked. The charges themselves span a period of one year, from January 2014 to January 2015.
14. Counsels final submission was the defendant should not be treated different to other theft as a servant offenders. Arguing that somehow that might amount to an unreasonable discrimination on the part of the court. The counter to that is the defendant chose to become a Police officer and diligently worked himself up the ranks to the level of Superintendent. He chose to undertake high public office and over the years reaped its benefits. As stated in Ah Him v Brunt [2013] WSSC 16:

“Those who undertake public office must be prepared to live in the public eye. And cannot shrink from the glaring and sometimes harsh spotlight of transparency and accountability.”

The defendant cannot now complain of being held to a higher standard. With greater responsibility comes greater reward and a higher degree of accountability.

15. As stated each count you have been found guilty of carries a 10 year maximum penalty. An appropriate starting point considering all relevant circumstances would in my view be three to four years in prison. That takes into consideration the fact that you are no ordinary servant and this was no “ordinary” theft. I will however begin sentence at the lower end of the scale, namely 3 years in prison.
16. In mitigation as pointed to by your counsel are your personal circumstances. As per the pre-sentence report of the Probation Office which notes your clean record, your achievements and distinguished service as a Police Officer as well as your faithful tautua to your family, community and ekalesia. Supported by references from various people including your faifeau and pulenuu. For these factors I discount as per usual sentencing practice of the court 6 months from your sentence. Leaves a balance of 2½ years.
17. I have been given a receipt for $1,000 noted as being payment for “Recoveries Cost of Ministry of Police.” I take this to be some form of restitution for the stolen petrol as no value for that was ascertainable from the evidence produced at trial. I accept this constitutes for present purposes full restitution in respect of the theft of petrol charges. The four plywood sheets having been returned during the course of the Police investigation. For that restitution you are entitled to some credit. In a small jurisdiction such as ours Police resources are always inadequate and these matters must be considered in that light. I deduct a further 6 months from your sentence. Leaves a balance of 2 years in prison.
18. I acknowledge that Police Officers ipso facto and by the very nature of their work face unique difficulties when serving imprisonment terms. The more senior the rank, the more pronounced these may be. An allowance for this factor was made in Pakau. It is appropriate to also do so here. For this I deduct 12 months from the remaining balance of your sentence. Leaves 12 months in prison.
19. Counsel has also referred to an apology made to the Ministry of Police and handed up a letter dated 12 October 2016 from Assistant Commissioner Fauono Tapu. I note however that Assistant Commissioner Fauono also penned the reference dated 04 October 2016 attached to your pre-sentence report. But no mention is made in that letter of any apology. I deduce therefore the apology was only made subsequently. In my respectful view, it is too little too late. And was only done in an effort to mitigate penalty. Furthermore, considering what you told the Probation Office I do not accept its sincerity and will not give it any mitigating value.
20. In respect of the three counts of theft of petrol you are accordingly convicted and sentenced to 12 months in prison. On the charge of theft of the plywood, to account for the fact that the sheets were returned, convicted and sentenced to 3 months in prison, concurrent term. Restitution monies of $1,000 to be released to Ministry of Police forthwith.
    

JUSTICE NELSON