Police v Gianno [2016] WSSC 4 (15 February 2016)

SUPREME COURT OF SAMOA
Police v Gianno [2016] WSSC 4

Case name:	Police v Gianno
Citation:	[2016] WSSC 4
Decision date:	15 February 2016
Parties:	POLICE v NICOLAS GIANNO of London and ROSITA STANFIELD of London.
Hearing date(s):	4, 6, 7, 13, 14 August 2015; 1, 2, 3, 4, 7, 29, 30 September 2015; 1, 6, 7, 8, 9, 14, 15 October 2015
File numbers:	S1888/15, S1862/15, S1863/15, S1864/15, S1865/15, S1866/15, S1861/15, S1853/15, S2031/15, S2030/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Mr Gianno is convicted and sentenced to 3 years imprisonment on each charge of obtaining by deception and 12 months imprisonment on each of the two charges of false accounting. All sentences to be concurrent so that Mr Gianno will serve an end sentence of 3 years imprisonment. Any time Mr Gianno has already spent in custody is to be further deducted from that sentence. - Ms Stanfield is convicted and sentenced to 15 months imprisonment on each charge of obtaining by deception. All sentences to be concurrent so that Ms Stanfield will serve an end sentence of 15 months imprisonment. Any time she has already spent in custody is to be further deducted from that sentence.
Representation:	L Sua-Mailo for prosecution L R Schuster for accused
Catchwords:	obtaining by deception - false accounting – maximum penalty – aggravating and mitigating features – guilty pleas – sentence -
Words and phrases:
Legislation cited:	Crimes Act 2013, s.172, s.198
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1853/15

BETWEEN:

P O L I C E
Prosecution

A N D

NICOLAS GIANNO of London and ROSITA STANFIELD of London.
Accused

Counsel:
L Sua-Mailo for prosecution
L R Schuster for accused

Sentence: 15 February 2016

S E N T E N C E

The charges

1. The accused Nicolas Gianno (Mr Gianno) and Rosita Stanfield (Ms Stanfield) appear for sentence on six joint charges of obtaining by deception, contrary to s.172 of the Crimes Act 2013, with each charge carrying a maximum penalty of 7 years imprisonment. The accused Mr Gianno also appears for sentence on two individual charges of false accounting, contrary to s.198 of the Act, with each charge carrying a maximum penalty of 7 years imprisonment. Both Mr Gianno and Ms Stanfield pleaded not guilty but were found guilty at trial on all the charges for which they are now appearing for sentence.

The offending

2. The facts of this case are sent out in full in my written judgment delivered to counsel on 13 January 2016. For present purposes, essentially what happened was that at Leulumoega on 9 May 2015, Mr Gianno and Ms Stanfield conducted a power point presentation telling the people who were present that they were representatives from a company called UFUN which has made lots of money from investing in gold and pearls and that the UFUN company operates a digital currency called the Utoken. They also explained the benefits to be gained from investing in the Utoken and that if you invest US$500 or its equivalent of $1,581 talā now in one package of Utoken you will earn ten times more in one or two months. In the circumstances of this case, I found this representation to be false. But as a result of this false representation, one MS and her son FS who is a planter invested $1,581 in one package of Utoken.
3. On 10 May 2015, Mr Gianno and Ms Stanfield conducted another similar power point presentation at Nofoalii in which they told the thirty or so people who were present that the UFUN company that they represent has made its money from trading in gold and diamonds and that it operates a digital currency called the Utoken. They also explained the benefits to be gained from investing in the Utoken and said that if you invest $1,581 tala now in the Utoken you will get a high return of $10,000 tala on your investment in July 2015. In the circumstances of the case, I also found this representation to be false. But as a result of the presentation, one TT who is a housewife invested $1,581 tala in the Utoken scheme and one NTM, a friend of Ms Stanfield, also invested $1,581 in the Utoken.
4. On 12 May 2015, Mr Gianno and Ms Stanfield again made a similar presentation to the Accident Compensation Board (ACB) and told the people who were present that the assets of the UFUN company will grow 600% in one year. Following this presentation, Mr Gianno had a conversation with one RF in which he said to RF that if you invest in the Utoken now you will earn ten times more on your investment by 21 July 2015. In the circumstances, I also found this representation to be false but as a result of it, RF invested a total of $31,625 in the Utoken.
5. Furthermore, one FI who is a relative of Ms Stanfield had heard about the presentations on the Utoken made by Mr Gianno and Ms Stanfield. He then went to Leulumoega on 14 May 2015 and met with Ms Stanfield while Mr Gianno was present. Ms Stanfield told FI that if you invest now in the Utoken your money will be doubled. In the circumstances of this case, I found this representation to be false but as a result of it FI went the next day, 15 May 2015, and gave $3,200 tala to Ms Stanfield to be invested in the Utoken.
6. FI then told his brother SI who is a taxi driver about the presentations by Ms Stanfield and Mr Gianno and the Utoken scheme. As a result, FI went to Leulumoega and talked to Ms Stanfield while Mr Gianno was present. Ms Stanfield told him that if he invests now in the Utoken his money will be doubled by August 2015. In the circumstances of this case, I also found this representation to be false but as a result of it FI gave $1,583 tala to Ms Stanfield to be in the Utoken while Mr Gianno was present.
7. It is somewhat of a surprise that all these people who parted with their monies and gave them to Mr Gianno and Ms Stanfield without anything from Mr Gianno and Ms Stanfield to back up what they were telling them except Gianno and Stanfield’s word. Mr Gianno and Ms Stanfield must have been persuasive and effective communicators for them to obtain the trust of these people so quickly. Perhaps it was the prospect of getting rich quickly in a very short period of time which made the presentations by Mr Gianno and Ms Stanfield so attractive to these people.
8. It should also be noted here that were also allegations of obtaining money by deception against Mr Gianno and Ms Stanfield in respect of other people not mentioned above. As those allegations are not the subject of any charges brought by the prosecution, I will not consider them.
9. The total amount of money obtained by Mr Gianno and Ms Stanfield from investors as a result of the above presentations was $41,149. All of this money was deposited by Mr Gianno and Ms Stanfield in a personal account that they opened with the ANZ bank under the name of Mr Gianno.
10. It appears from the evidence of Ms Lealofi, a Central Bank official, noted at p.36 of my judgment and the evidence of RF that on 13 May 2015, RF went to the Central Bank to enquire about the Central Bank requirements for the remittance of his funds overseas for investment purposes. When Ms Stanfield and Mr Gianno arrived at the Central Bank later, Ms Lealofi explained to Ms Stanfield in the presence of Mr Gianno and RF the Central Bank requirements for the remittance of funds overseas for investment purposes and for the remittance of funds overseas as a gift, Ms Stanfield then said to Mr Gianno and RF in the presence of Ms Lealofi that it would better to remit the money as a gift. Then on 18 May Mr Gianno and Ms Stanfield went to the ANZ bank and remitted $11,000 tala to Mr Gianno’s personal account in London as a gift for the use of Mr Gianno’s wife and children even though it appears from other evidence that Mr Gianno does not have a wife. On 19 May, Mr Gianno and Ms Stanfield again went to the ANZ bank and remitted $20,000 tala to Mr Gianno’s personal account in London for the use of Mr Gianno’s wife and children. On 20 May when Mr Gianno and Ms Stanfield went to the ANZ bank again to remit another $20,000 to Mr Gianno’s personal account in London and told the bank that they want to remit the full amount of over $1000,000 in Mr Gianno’s personal account with the ANZ bank, the bank became suspicious and informed the Central Bank. The initial advice from the Central Bank was to hold the remittance and to refer Mr Gianno to the Central Bank. This was followed about half an hour later with another advice from the Central Bank to freeze Mr Gianno’s account.
11. I have found that the ANZ bank telegraphic transfer application forms that were filled in on 18 and 19 May 2015 by the ANZ bank on instructions by and with the concurrence of Mr Gianno were intended by Mr Gianno to mislead the ANZ bank and to circumvent the Central Bank requirements regarding the remittance of funds overseas for investment purposes.
12. The monies that the investors gave to Mr Gianno and Ms Stanfield have all been returned to them due to the intervention from the Central Bank.

The accused

13. As it appears from his pre-sentence report, the accused MrGianno is of Greek descent but is based in Great Britain. He has had managerial experience working for restaurants in England and Palau. He holds a bachelor’s degree majoring in marketing. In 2014 he worked as a salesman for a company in Great Britain. He also told the probation service that he only joined the UFUN company in April 2015.
14. There is no evidence that Mr Gianno has any previous convictions. The three local people who have met him have filed written testimonials that show Mr Gianno as a friendly type of person. The testimonials from various people in Great Britain say that Mr Gianno is an honest, trustworthy, talented and hardworking person. I have misgivings about what these testimonials say about Mr Gianno being an honest and trustworthy person and a man of integrity given the findings that I have made in this case in relation to the charges against him.
15. In respect of the accused Ms Stanfield, she was born in Fiji but grew up in Samoa. At the age of 15 she migrated to New Zealand where she continued her education. She then worked for a bank while undertaking a course in banking. She later graduated with a certificate in banking. She then migrated to England where she obtained employment. She later obtained a certificate in accounting from a university in London. She met Mr Gianno in London where they became friends and business partners.
16. Ms Stanfield is a Roman Catholic and it appears from the character testimonials filed on her behalf by the priests of the Catholic church at Leulumoega that she often visits Samoa and she is a deeply religious person who is generous, helpful to others and good natured. In 2009, Ms Stanfield sent a container of furniture and other things to the Catholic Tsunami Relief. She has also made many donations to the refurbishment of the Catholic church at Leulumoega.
17. The character testimonials from members of Ms Stanfield’s family at Leulumoega show her as a good and helpful person who has done many good deeds for her family. The character testimonials from some of the people who know Ms Stanfield in London also portray her as a good, hardworking, humble and helpful person.
18. Ms Stanfield is now 58 years old and appears to be a first offender as there is no evidence that she has previous any convictions.

Aggravating and mitigating features

19. In relation to the offending in respect of obtaining by deception, it is clear that this offending involved a high degree of planning and premeditation. The offending was evidently premeditated, calculated and planned.
20. The number of people, seven of them, who were deceived and invested monies in the Utoken and the total amount of $4,149 that was involved are also aggravating features relating to this offending. So is the betrayal of trust of those people who invested in the Utoken. On the other hand, the fact that all the investors got their monies back is to an extent a mitigating feature relating to the offending.
21. In relation to the accused as offenders, Mr Gianno is a first offender and the character testimonials filed on his behalf show that to an extent he is a person of good character. But as I have said earlier, I have some misgivings about what is said about him being honest and trustworthy given my findings of fact in this case in relation to conviction and my observation of him in the witness stand. I also take into account that Mr Gianno is a foreigner in this country.
22. Ms Stanfield is a single mother and at the age of 58 it appears to be a first offender. Her character testimonials are impressive. She has also lived away from Samoa since she was 15 and in a real sense she would now be more a foreigner in Samoa than a Samoan who has lived here for all her life or the most part of her life.
23. In relation to Mr Gianno’s offending for false accounting, again a high level of premeditation and planning was involved.

Discussion

24. In respect of the six charges of obtaining by deception and the two charges of false accounting against Mr Gianno, I will consider the totality of his offending and the aggravating and mitigating features relating thereto. I will take 4 years as the starting point for sentence. I will deduct 6 months for apparent previous good character. That leaves 3½ years. Being a foreigner in this country, I will show mercy on him and deduct a further 6 months. That leaves 3 years.

Result

25. Mr Gianno is convicted and sentenced to 3 years imprisonment on each charge of obtaining by deception and 12 months imprisonment on each of the two charges of false accounting. All sentences to be concurrent so that Mr Gianno will serve an end sentence of 3 years imprisonment. Any time Mr Gianno has already spent in custody is to be further deducted from that sentence.
26. Ms Stanfield is convicted and sentenced to 15 months imprisonment on each charge of obtaining by deception. All sentences to be concurrent so that Ms Stanfield will serve an end sentence of 15 months imprisonment. Any time she has already spent in custody is to be further deducted from that sentence.

CHIEF JUSTICE