Police v Ah Kuoi [2016] WSSC 45 (10 March 2016)

SUPREME COURT OF SAMOA
Police v Ah Kuoi [2016] WSSC 45

Case name:	Police v Ah Kuoi
Citation:	[2016] WSSC 45
Decision date:	10 March 2016
Parties:	POLICE v FALEVAAI AH KUOI of Siusega.
Hearing date(s):
File number(s):	S3816/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused is convicted of the charge of obtaining by deception involving $10,000 and sentenced to 1 year and 8 months imprisonment. On each of the other two charges of obtaining by deception involving $4,000 and $3,500, he is convicted and sentenced to 18 months imprisonment. All these sentences are to be concurrent. - The accused has been in custody since 6 January 2016 on a sentence of 5 months imprisonment on traffic matters. He has not been in custody because of his present offences. No time is therefore to be deducted for the time the accused has been in custody for his sentence on traffic matters. - The present concurrent sentence of 1 year and 8 months imprisonment is to commence at the expiry of the accused’s present term of imprisonment for traffic offences of 5 months.
Representation:	P Chang for prosecution Accused in person
Catchwords:	Obtaining by deception – maximum penalty – sentence – pleaded guilty – sentencing approach – aggravating and mitigating features
Words and phrases:
Legislation cited:
Cases cited:	Bennet v Police [2015] NZHC 2595 Chapman v Police [2015] NZHC 498 Costello v R [2015] NZCA 512 R v Varjan CA 97/03
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S3816/15

BETWEEN

P O L I C E
Prosecution

A N D

FALEVAAI AH KUOI of Siusega.
Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 10 March 2016

S E N T E N C E

Introduction

1. The accused Falevaai Ah Kuoi of Siusega appears for sentence on three charges of obtaining by deception, contrary to s.172 (1) (a) of the Crimes Act 2013, each of which carries a maximum penalty of 7 years imprisonment pursuant to s.173 (a). To these charges, the accused pleaded guilty.
2. The accused was represented by counsel awaiting the outcome of his legal aid application. When his application was denied, I asked the accused whether he still wanted to be represented by counsel but to be paid for by himself. He said no. He will now appear on his own. He was then asked if he had anything to say in mitigation of penalty. He made a brief plea in mitigation.

The offending

3. There were three separate acts of obtaining by deception in this case, each of which is the subject of a separate charge. Two of the charges relate to the first victim and one charge relates to the second victim. The offences were committed over a period of about five weeks from 27 August 2015 to 2 October 2015.
4. On Wednesday 26 August 2015, the accused and the first victim’s wife entered into an oral agreement that the accused will sell the first victim’s wife his vehicle for $7,500. On Thursday 27 August 2015, the accused dropped off a Blue Rav 4 vehicle to the first victim’s workplace saying that the vehicle was for the temporary use of the first victim and his wife because the car they wanted is currently being serviced by a mechanic. The first victim then gave the accused $4,000 cash as part payment of the purchase price of the vehicle as per the agreement between the first victim’s wife and the accused. The accused then left leaving the Blue Rav 4 for the use of the first victim and his wife. It appears from the pre-sentence report that the accused told the probation service that the first victim is a long time friend.
5. The next day Friday 28 August 2015, the accused visited the first victim’s workplace again and the first victim gave the accused $3,500 for the remaining balance of the purchase price of the vehicle that the first victim’s wife and the accused had agreed upon.
6. For the next four weeks, the accused was making up excuses to the first victim’s wife about the vehicle that he promised saying it was with the mechanic when in fact there was no vehicle at all. Sometime towards the last week of September 2015, the accused went to the first victim’s house and took the Blue Rav 4 from the first victim’s wife. He said to the first victim’s wife that he will pay back their money.
7. Then on Saturday 26 September 2015, the accused dropped off a silver Toyota Estima mini van to the first victim’s house after constant follow ups from the first victim’s wife for their money. The accused told the first victim’s wife to use the mini van as the vehicle they had agreed upon will not be ready until Monday 28 September 2015. However, no vehicle was provided to the first victim’s wife as promised.
8. About four weeks later, a rental car company approached the first victim and his wife and took back their mini van which had been rented by the accused and had long been overdue to be returned. The accused never had any vehicle to sell to the first victim and his wife when he made the representation he had a vehicle to sell to the first victim’s wife. The total amount the accused obtained by deception from the first victim was $7,500.
9. The accused told the Court that he has made reparation of $3,000 to the first victim and his wife and he produced a document claimed to be signed by the first victim to confirm this. The opportunity was given to the prosecution to call the first victim and his wife but they have not appeared. I will therefore have to accept what the accused has told the Court.
10. In respect of the second offending by the accused, the second victim and the accused were very good friends. The second victim operates a business which sells and buys goods from customers.
11. On Friday 2 October 2015, the accused approached the second victim and offered to sell him his two cars for $10,000. The second victim asked the accused that he wanted to inspect the cars and the accused promised to allow him to inspect the cars. Because the accused was his good friend, the second victim signed a cheque for $10,000 to the accused.
12. The accused knew that he did not own any vehicles at all and that the two vehicles he promised the second victim do not exist. However, because of the good friendship between the accused and the second victim, the accused was able to deceive the second victim and obtained the said $10,000 cheque.

The accused

13. As shown from the accused’s pre-sentence report, he is 41 years of age and married with one daughter. He has had a good level of education having attended the Catholic Cathedral College in Christchurch, New Zealand, and then the Wellington Microsoft Institution where he gained his knowledge in computing. He worked in New Zealand for some time before returning to Samoa due to his father’s illness.
14. He then worked as an information technology officer in Samoa in three different companies and the Land Transport Authority. At the time of this offending, he was working as an information technology officer for Polynesian Airlines.
15. In the year 2000, the accused operated a taxi and bus business but all his taxis and buses were sold due to the road switch. The accused also told the probation service that one of his side jobs was selling cars.
16. The accused has also told the Court that he has made reparation of $3,000.00 to the first victim and his wife. However, no reparation has been made to the second victim.
17. As a result of this offending, the accused’s wife has separated from him. However, she told the probation service that the accused is a loving and supportive man in the development of their family. She also asks for mercy on the accused. The written testimonial from the pastor of the accused’s church shows that the accused had been a hardworking and supportive deacon and member of their church but it has been quite some time since the accused last attended or participated in the affairs of the church. The written testimonial from the pulenuu of the accused’s village shows the accused as a good, humble, respectful and likeable person within the village and he has not breached any village regulation.
18. The pre-sentence report also shows that the accused is currently serving a term of 5 months imprisonment on traffic matters. So he is not a first offender. There has also been no reconciliation between the accused and the victims who were his very good friends.
19. The accused has pleaded guilty to the charges against him.

Sentencing approach to fraud cases

20. There is no tariff case for fraud related offending but some guidance as to sentencing in such cases was provided by the New Zealand Court of Appeal in R v Varjan CA 97/03, 26 June 2003 which is the leading New Zealand case in this area. At [22] – [23] it is stated:
    
    • “[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims”.
    • “[22] It is in the assessment of culpability that comparison with other case is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.”
21. The guidance provided in R v Varjan has been applied in a number of New Zealand fraud cases. More recently, R v Varjan was applied by the New Zealand Court of Appeal in Costello v R [2015] NZCA 512 which was concerned with appeals against sentence on charges of obtaining by deception.
22. I have also consulted other New Zealand sentencing authorities, notably Chapman v Police [2015] NZHC 498 and Bennet v Police [2015] NZHC 2595, which were concerned with sentences on fraud charges including obtaining by deception. On the basis of those New Zealand authorities, I consider a starting point of 5½ years for sentence in the present case to be too high.
23. I am also of the view that because these obtaining by deception offences were committed within a period of about five weeks, it would be more appropriate to impose concurrent sentences which will reflect the totality of the offending rather than impose cumulative sentences. This is notwithstanding the fact that there is more than one victim.

The aggravating and mitigating features

24. In relation to the offending, these offences involved serious breaches of trust. The first victim was a very good friend of the accused and the second victim was a long time friend. The accused took advantage of his friendships with the two victims and the trust that normally arises from such relationships to deceive his friends. It is also evident that the accused was motivated by greed.
25. It is also evident that these offences involved substantial planning and premeditation. The losses of $7,500 to the first victim and $10,000 to the second victim are significant sums of money for both victims. However, reparation of $3,000.00 has been made to the first victim and his wife. Even though there are no victim reports, those losses must have affected the victims.
26. In relation to the accused as offender, I will not take into account his previous traffic convictions as an aggravating feature. But those traffic convictions for which he is now serving a term of 5 months imprisonment show that the accused is not a person of previous good character.
27. The only mitigating features in relation to the accused as offender are the reparation he has made and his guilty plea to the charges.

Discussion

28. Having regard to the aggravating features relating to the offending and the need for deterrence in this type of case, and applying the totality principle, I will take 2½ years as the starting point for sentence. I will deduct 3 months for the reparation of $3,000.00 made by the accused. That leaves 27 months. I will deduct a further 7 months or 25% for the guilty plea. That leaves 20 months or 1 year and 8 months.

Result

29. The accused is convicted of the charge of obtaining by deception involving $10,000 and sentenced to 1 year and 8 months imprisonment. On each of the other two charges of obtaining by deception involving $4,000 and $3,500, he is convicted and sentenced to 18 months imprisonment. All these sentences are to be concurrent.
30. The accused has been in custody since 6 January 2016 on a sentence of 5 months imprisonment on traffic matters. He has not been in custody because of his present offences. No time is therefore to be deducted for the time the accused has been in custody for his sentence on traffic matters.
31. The present concurrent sentence of 1 year and 8 months imprisonment is to commence at the expiry of the accused’s present term of imprisonment for traffic offences of 5 months.

CHIEF JUSTICE