Police v Pei [2017] WSSC 52 (17 May 2017)

THE SUPREME COURT OF SAMOA
Police v Pei [2017] WSSC 52

Case name:	Police v Pei
Citation:	[2017] WSSC 52
Sentence date:	17 May 2017
Parties:	POLICE (Prosecution) v Lagolago Pei female of Faiaai, Vaiusu and Tapueleele Savaii Accused
Hearing date(s):	17 May 2017
File number(s):	S2914/16
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	On the evidence and for the foregoing reasons, I find the Prosecution has proven the charge beyond reasonable doubt. This matter is adjourned to Tuesday 30th May 2017 for Pre-Sentence Report, VIR and sentencing. The accused is remanded on the same bail conditions to re-appear on the 30th May 2017 at 12.30pm for sentence.
Representation:	L. Sio for Prosecution Defendant – Self represented
Catchwords:	charge proven beyond reasonable doubt – theft as a servant –
Words and phrases:
Legislation cited:	section 161 and 165(e) of the Crimes Act 2013
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

LAGOLAGO PEI female of Faiaai, Vaiusu and Tapueleele Savaii
Accused

Counsel:
L. Sio for Prosecution
Defendant – Self represented

Sentence: 17 May 2017

J U D G M E N T

1. The accused is charged with one charge that at Vaisigano on the 14^th day of September 2016, the accused being a servant of Sheraton Samoa Aggie Greys Hotel and Bungalows stole ST$900.00 in monies, the property of her employer, Sheraton Samoa Aggie Greys Hotel and Bungalows (S2914/16).

The Law:

2. The charge against the defendant is brought pursuant to section 161 and 165(e) of the Crimes Act 2013. Section 161 and 165(e) relevantly provide:

“161. Theft or stealing – (1) Theft or stealing is the act of:

(a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(b) dishonestly, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:
(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property.
(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.”

3. Section 165(e) states:

“165. Punishment of theft – A person who is convicted of theft is liable as follows:

(e) if the property stolen is property stolen by a clerk or servant which is owned by his or her employer or is in the possession of his or her employer, to imprisonment for a term not exceeding 10 years;”

4. Section 2 of the Crimes Act 2013 defines ‘property’ to mean “real and personal property, and any estate or interest in any real and personal property, money, electricity and any debt, and anything in action, and any other right or interest.”
5. The ingredients of the offence of theft as a servant which the prosecution must therefore prove beyond reasonable doubt are:

(i) The accused was an employee of the owner of the property;
(ii) The accused dishonestly took the property within the terms of section 161; and
(iii) She did so with the intention to permanently deprive the owner of the property.

The Evidence:

6. Prosecution called 4 witnesses. These witnesses were Mark Wendt, Joshua Penia, Aumoana Asiata and Moeva Ioapo.
7. Mr Williams has been employed with the Sheraton since December 2014, first as the Director of Human Resources for Sheraton Aggie Greys Hotel and Bungalows Apia and Mulifanua until December 2016 and after then, as Director of Rooms at Sheraton Apia (“Sheraton”).
8. Mr Williams said the accused is a former employee of Sheraton Apia and held the post of Duty Manager, Front Office. She commenced employment in about February 2016, first he recalled, at Sheraton Mulifanua then later, Sheraton Apia.
9. Mr Williams described the role of Duty Manager as the hotel manager on property. When incidences arise, they are the first to respond and if anything needs to be escalated, it is escalated to the senior management team. He said “so basically, their role is to run the operation of the hotel.” The Duty Manager’s role also involves cash handling. The Duty Manager receives money from the different outlets of the hotel at the end of shift or close, co-signs the receipt with the outlet cashier or the cashier’s delegate and then the Duty Manager deposits the money into the safe through the safe ‘drop box’ with the cashier or the casher’s delegate who has brought the money from the outlet as witness to the deposit by the Duty Manager. He described the safe and the deposit process as follows:

“It’s basically digitally locked. There is a drop box that they put the money or the envelope in and they just drop it then you just close the door, it drops inside the safe.”

10. Only the Finance Team have access into the safe and even as Director of Rooms, he doesn’t know how to open the safe. He also described the “Front Office” as located behind the Sheraton Front Desk in the Lobby and typically also has the Sheraton phone operator working from inside the Front Office also.
11. Mr Penia is a bar tender and waiter at Sheraton Apia. He said that he is also involved in the balancing of cash takings at the end of shifts if there is no cashier available. He said that on the 14^th September 2016, he was working at the Restaurant with his shift starting at 2.00pm and ending at 11.00pm. The accused was the Duty Manager that night. As there was no cashier for his shift, he balanced the takings with the assistance of Mele, the cashier from the bar. The takings from his shift balanced. He completed the form, which is printed on the envelope in which the takings are placed in, signed the form but he did not seal it. The envelope and completed form was tendered as exhibit P1.
12. Mr Penia then took the envelope (exhibit P1) that night to the accused who was Duty Manager at the Front Office. When he arrived, the accused was speaking on the phone. After her phone discussion, they counted the money together and confirmed the amount of $1,214.00 in the envelope, the accused saying to him “ua atoa.” The evidence suggests the accused counted the money with Mr Penia witnessing her do so. He said he saw the accused seal the envelope. They both signed the Cash Drop Form (exhibit P2). The Cash Drop Form shows next to Mr Penia’s signature the sum of $1,214.00, being the amount received from him recorded on the form. He said to the accused for them to drop the envelope into the safe, however, the accused received a phone call and she told him that she would drop it off into the safe.
13. Mr Penia said that the process for the entries on the Cash Drop Form required him and the accused to sign the Cash Drop Form after the envelope was deposited into the safe. However, he did not witness the envelope being deposited into the safe, as was required by the Sheraton’s Cash Drop Form signing process. He confirmed that in the office that evening when he went to the accused was “Kirk”, “Mita” and the accused.
14. Mr Asiata is a security guard with TCB Security that provides security to the Sheraton Apia. In his evidence, Mr Asiata was on duty at the Sheraton on the 15^th September 2016. On that morning, he and “Moevao” went to the Sheraton safe and opened it. They removed and checked the money deposited. He said that there was one envelope with money missing. He said that that envelope had a cheque, coins but no cash money. The envelope was missing $900.00. His observation of the envelope was that it appeared that it had not been opened. His signature appears as the “Security Officer” at the bottom of exhibit P2.
15. Ms Ioapo has been a long serving member of the Aggie Greys Hotel, having commenced employment with Aggie Greys in 2004 to the Sheraton today. She is involved in Finance and is the General Cashier. The role involves balancing all the money from each sales day, carried out every morning, and then also doing the banking. From the previous night’s sales, those envelopes are checked the next morning.
16. She recounts the cash deposit process largely as described by Mr Williams and Mr Penia. In her evidence, she said that the safe cannot be open by just anyone. The key is with the security and only she has the pin. There is no camera where the safe is located. On the Thursday morning of the 15^th September 2016, she went with the security to collect the envelopes. It was then taken to the office and checked by her and the security. They found money missing from the envelope (exhibit P1), containing only silver and a cheque. The big ticks on P1 are her ticks. Ms Ioapo tendered exhibit P3, which was her envelope cash count which shows a cash of $16.00 and a cheque of $298.00 from the envelope from “Joshua”.
17. At the end of the Prosecution evidence, the accused elected to give evidence. She is 29 years old and said that she had commenced work with the Sheraton firstly at Mulifanua in February 2016 and then transferred to Apia in June 2016 as Duty Manager. As Duty Manager, she is a supervisor and when no management is around, she manages and looks after the hotel, especially at night.
18. She confirmed that she worked on the 14^th of September 2016 starting at 3.00pm and completed her shift at midnight. She said it was a busy night with a lot of people there and she was also involved in the registration of Starwood Preferred Guests (SPGs). At about 11.00pm, Mr Penia had come to her with his money, at a time she described when she was ‘a little busy’. He had come to do the drop off, she did not wish to do the count but he insisted to her to do so (agau a’u). They then did the count and all the money was accounted for. The small ticks on exhibit P1 are her ticks. She however said she questioned Mr Penia about his accepting of a cheque. She sealed the envelope by licking and sealing it in Mr Penia’s presence. Mr Penia said to her for them to drop the envelope, however, she said she was busy and didn’t think anything would happen. The envelope was left on her desk and she went to assist with check-ins. She returned about half an hour later and deposited the envelope in the safe.
19. In her evidence, the accused raised character and propensity evidence saying that in an earlier incident, she had found money which she returned to management. Under cross-examination, she then went on to say that she is a good person, she does not steal and she is not a thief. Leave was then granted to the prosecution to cross-examine the accused on her guilty plea to a charge of theft from the Sheraton, which she confirmed but said that the money stolen was not stolen for her.

Discussion:

20. It is not in dispute that the accused is an employee of Sheraton Samoa Aggie Greys Hotel and Bungalows. Accordingly, the first element of the charge is established.
21. Turning to the second element, there is no dispute that the sales from the restaurant came to $1,214.00 made up of $900.00 cash, $16.00 in coins and a cheque of $298.00. This money was taken by Mr Penia and counted with the accused and was fully accounted for. The money was then left with the accused in the Front Office. From this point until Ms Ioapo and Mr Asiata opened the safe the next morning, the only evidence as to what occurred with the money was from the accused herself. She said that she was busy, she was on the phone and went to serve the front counter for check-ins. She said she left the envelope on the desk, because they were busy, and thinking “nothing would happen.” She returned half an hour later and deposited the envelope in the safe.
22. Having considered the evidence and hearing from the witnesses including the accused herself, I find that the accused purposely orchestrated circumstances at the Front Office that night to enable her to attempt to deny the theft. She did so by departing from Sheraton cash management policies which she as a Duty Manager would be expected to be well aware of. First, she did not want to count the money when brought to her by Mr Penia. She only counted the money on the insistence of Mr Penia. I do not accept the suggestion from her cross-examination carried out of a prosecution witness that a cash count is not part of the duties of a Duty Manager prior to deposit in the Sheraton safe. That would seem to be basic and prudent financial management of the hotel takings, appropriately the role of the Duty Manager. More relevantly, it is inconsistent with what is shown on the “Cash Drop Form” (exhibit P2). The Cash Drop Form has the signature of the Departmental Cashier next to the amount $1,214.00 and has the witness signature to the right of the amount. The suggestion that a cash count is not carried out by her as Duty Manager is not credible. It is part of the hotel process.
23. Having however carried out the cash count at the insistence of Mr Penia, the accused then breached Sheraton policy by having Mr Penia sign the Cash Drop Form and leave the money with her to deposit in the safe without him witnessing the physical deposit into the safe. She claims that this was because she was busy, either on the phone or to serve the front counter check-ins. I do not accept this explanation nor was it credible. The safe was in the room and she described the distance of the safe from her desk as the distance from the witness box to the Judge in the Court Room. Mr Penia had also finished his shift so could have waited for the Cash Drop to be carried out. Her failure to deposit the money in the safe in the presence of Mr Penia was a breach of basic hotel policies that as Duty Manager, she would be well aware of. That the accused then claims she left the money on her desk for half an hour thinking nothing would happen, is again not credible. These circumstances however give her a basis to suggest that the money was stolen in that period, a suggestion I do not accept.
24. There was some dispute in the evidence that a key was required to open the chute to the safe to deposit the money. That key, if it was necessary to open the envelope deposit chute was also in the Front Office. It would have added no material delay in taking the key and opening the safe chute to effect the cash drop.
25. The accused placed some weight on the alleged fact that the envelope was ‘sealed’, Mr Penia saw her seal the envelope and that when the envelope was opened by Ms Ioane, it had been sealed. In my view, this does not assist the accused because it was she who had purportedly sealed the envelope and she may not have sealed it properly to enable easy re-opening. In any event, even if it was properly sealed by her as she claims, there is no question the envelope was opened, the money taken and then re-sealed again. That she claims she sealed the envelope does not assist her. In all, I found the accused’s evidence to be unreliable and not credible. Accordingly, I find that the accused took the $900.00 and she did so without the owner’s consent. The second element has been proven beyond a reasonable doubt.
26. Having said what I have found on the evidence, I also accept that the accused took the money dishonestly and she did so with the intent of permanently deprive her employer of the $900.00. The third element has there also been proven beyond a reasonable doubt.

Decision:

27. On the evidence and for the foregoing reasons, I find the Prosecution has proven the charge beyond reasonable doubt.
28. This matter is adjourned to Tuesday 30^th May 2017 for Pre-Sentence Report, VIR and sentencing.
29. The accused is remanded on the same bail conditions to re-appear on the 30^th May 2017 at 12.30pm for sentence.

JUSTICE LEIATAUALESA DARYL CLARKE