Police v Kalati [2017] WSSC 46 (5 May 2017)

IN THE SUPREME COURT OF SAMOA
Police v Kalati [2017] WSSC 46

Case name:	Police v Kalati
Citation:	[2017] WSSC 46
Decision date:	05 May 2017
Parties:	POLICE (Informant) and LEINATI KALATI a.k.a LEINATI LETAULAU female of Fasitoo-uta & Tafuna, Amerika Samoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 12 months’ suspended sentence.
Representation:	A Matalasi for Prosecution T Leavai for the Defendant
Catchwords:	Theft as servant – breach of trust – pre-meditated – first offender – early guilty plea – personally apologised to company – paid back full amount stolen – non custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013
Cases cited:	P v Tevaga [2013] WSSC 35 (21 May 2013). P v Rudnick [2010] WSSC 48. P v Smith [2013] WSSC 4. P v Kereti [2015] WSSC 167. P v Chadwick [2015] WSSC 15. P v Su’a [2016] WSSC 128. P v Tautalaaso Wright [unreported judgment].
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

LEINATI KALATI A.K.A LEINATI LETAULAU
female of Fasitoo-uta & Tafuna, Amerika Samoa
Defendant

Counsel:
A Matalasi for Prosecution
T Leavai for Defendant

Sentence: 05 May 2017

SENTENCING OF TUATAGALOA J

The charges:

1. The defendant has pleaded guilty to four (4) charges of theft as a servant as follows:
   1. On 20 November 2015 the defendant stole $1,638.00;
   2. On 04 December 2015 the defendant stole $400.00;
   3. On 17 December 2015 the defendant stole $700.00; and
   4. On 16 August 2016 the defendant stole $810.00.
2. The total amount stolen by the defendant is SAT$3,548.00.

The facts:

3. The summary of facts has been read out and confirmed by the defendant which basically says:
   • The defendant is 59 years’ old and was employed as an Office Manager for the law firm Clarke Ey Lawyers.
   • The defendant has been working for Clarke Ey Lawyers for six (6) years from 2011-2016. Her responsibilities were to manage the office and its administration. She was also entrusted with the preparation of adoption documents and collect or receive payments.
4. The money stolen by the defendant were payments of an adoption application by an Australian based client of the Firm whom the defendant would, by way of text, ask to make payment to her instead of depositing through the Firm’s account.
5. The defendant would personally on four (4) different occasions attend to the local money transfer agency and uplifted the money and kept it for her personal use.

The defendant:

6. The defendant has been working for various law firms and other companies prior to working for Clarke Ey Law. She has been working for various law firms and companies in the last 40 years.
7. There are written testimonials from two (2) of the law firms where she was employed at. They spoke of her as being an efficient and diligent employee.
8. There is also a written testimonial from a respected member of her village Leaupepe Toleafoa who also vouch for her many good qualities in the village and in their family.
9. According to the pre-sentence report, the defendant reached Year 12 at Samoa College, is the eldest of 10 children; her first husband died and she remarried to a man from American Samoa who she was two children. She is a first offender.

The victim impact report:

10. The impact of the offending on Clark Ey Law according to the Victim Impact Report (VIR) are as follow:
    1. Indirect financial impact in the time they spent investigating and dealing with the offending which time they said would be billed at $1,200.00;
    2. Dampening effect on staff morale especially when the defendant is a senior staff member and well entrusted by the firm;
    3. The firm has restructured responsibilities and revised payment procedures and framework for adoption matters.
11. Ms Fiona Ey of Clarke Ey Law confirmed at the time of VIR that the defendant has personally apologised and had repaid $3,000.00 with the defendant saying that she would pay the balance of the amount stolen. Ms Ey on behalf of the Firm accepted the apology and the partial restitution. Ms Matalasi for the prosecution confirmed in court prior to sentencing that the defendant has paid the balance owing.

The aggravating factors:

12. I take the following as aggravating factors of the offending:
    1. Breach of trust – the defendant was a senior staff member of the Firm. She was entrusted with receiving and collection of legal fees. On a personal level she was treated as a family member by the partners and was well paid.
    2. Pre-meditation – The offending was pre-meditated from the way the defendant had carried out the offending. That is, she personally texted the client and the method she told them to send the money through a money transfer agency instead of direct payment through the Firm’s account.
    3. The total was significant. The victim impact report says the amount represents 75% of that client’s fees.
    4. The offending has impacted upon the Firm by the Firm restructuring responsibilities and had revised payment method.

The mitigating factors:

13. On the other hand, the following are mitigating factors personal to the offender:
    1. The age of the defendant – 59 years’ old.
    2. First offender status. The written testimonial testified to the defendant’s good honest character prior to the offending. Her age of 59 years old further highlights her first offending status, that she has a clean record and was a law abiding citizen for 59 years.
    3. The defendant personally apologised to Ms Fiona Ey (partner) of Clarke Ey Law twice. This is in the Court’s view is a sign of remorse and owning up to her behaviour.
    4. The defendant is taking responsibility for her actions by making a bulk payment towards the amount she stole.
    5. The defendant’s early guilty plea is viewed by the Court as the defendant taking full responsibility and owning up to her behaviour. I accept that the defendant is truly remorseful for what she has done.

Discussion:

14. This offending is considered prevalent in our community and as such the Court as deterrence would usually impose a custodial sentence. Despite the Court imposing custodial sentences the offending is still very prevalent by the number of cases coming through the courts. The sentencing decisions cited by Prosecution reflect the stance by the Court which it has maintained post Crimes Act 2013 which Act increases the penalty for theft as a servant from seven years to maximum 10 years’ imprisonment.
15. However, there are or have been sentencing decisions by the Court of non-custodial sentences of this offending where the Court finds that the circumstances of, the particular case justifies a departure from imposing a custodial sentence. Vaai J in P v Tevaga said at paragraph [8]:

“Although custodial sentences must always be considered for offences involving dishonesty by those who were placed in positions of trust, sentence to be passed in each case must be considered primarily in the circumstances surrounding the offending.”^[1]

16. There are quite a number of cases under the Crimes Act 2013 where the Court despite penalty being increased to maximum 10 years’ imprisonment the Court had imposed sentences of non-custodial. While there are a number of cases pre-Crimes Act 2013 where non-custodial sentences were imposed I refer only to two cases I find more relevant:

P v Rudnick[2]

• The total amount taken $4,100; the sentence imposed was 100 hours’ community service and $1000 fine;

P v Smith[3]

• Total amount taken $6,818; sentence imposed was 18 months’ supervision and costs to the Prosecution.

17. While there are a number of cases post Crimes Act 2013 where non-custodial sentences were imposed I refer only to the following for comparison to the present case:

P v Kereti[4]

• 50 charges; total amount stolen $7,961; sentenced to two years’ supervision and 100 hours’ community service plus costs to Prosecution.

P v Chadwick[5]

• 16 charges; total amount stolen $4,729.50; sentenced to 12 months’ supervision and costs to Prosecution.

P v Su’a[6]

• 1 count; total amount stolen $4,700.00; sentenced to seven months’ supervision with special conditions.

P v Tevaga[7]

• 26 charges; total amount stolen $5,270.00 over a period of four months; $2,420 repaid with undertaking by defendant to pay the balance remaining; sentenced to 18 months’ supervision with special conditions to repay balance owing, 60 hours’ community service and to attend program recommended by Probation.

18. The Prosecution submits for a custodial sentence with a starting point of two years and an end sentence of 12 months’ imprisonment citing the case of Police v Tautalaaso Wright^[8] to be relevant. Counsel for the defendant pleads for non-custodial with a heavy emphasis on the Court for mercy given the matters raised as mitigation.
19. What distinguishes the present case from the Tautalaaso case is, in the present case the defendant is 59 years’ old of previous good character as opposed to the defendant Tautalaaso Wright who is although of previous good character was only 23 years’ old.
20. I place much weight on the defendant’s age in the present case and that of her first offending status than I would of the defendant Tautalaaso. The defendant in the present matter has been employed by various employers for 40 years, two of whom had provided good references for her. She repaid the majority of the money and had paid off the remaining balance of $548.00 that she undertook to her former employer that she would. I find the case of P v Tevaga^[9] more relevant to the present case.
21. The defendant’s age of 59 years’ old and a recorded conviction of a dishonest offence would make it very hard for her to secure future employment. A recorded conviction will now taint her 40 years of what was an unblemished employment record. This will no doubt have a huge impact on the defendant.
22. For the reasons provided a non-custodial sentence is in my view appropriate. The defendant is convicted and sentenced to 12 months’ suspended sentence.
    

JUSTICE TUATAGALOA

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^[1] P v Tevaga [2013] WSSC 35 (21 May 2013).
^[2] P v Rudnick [2010] WSSC 48.
^[3] P v Smith [2013] WSSC 4.
^[4] P v Kereti [2015] WSSC 167.
^[5] P v Chadwick [2015] WSSC 15.
^[6] P v Su’a [2016] WSSC 128.
^[7] P v Tevaga [2013] WSSC 35.
^[8] P v Tautalaaso Wright [unreported judgment].
^[9] P v Tevaga [2013] WSSC 35.