Police v Talataina [2017] WSSC 77 (24 March 2017)

THE SUPREME COURT OF SAMOA

Police v TALATAINA [2017] WSSC 77

Case name:	Police v Talataina
Citation:	[2017] WSSC 77
Sentence date:	24 March 2017
Parties:	POLICE (Prosecution) v LOTOTASI SUSUGA TALATAINA male of Foaluga and Samata Savaii Accused
Hearing date(s):	24 March 2017
File number(s):	S2958/16, S2959/16, S2960/16, S2961/16, S2962/16, S2963/16, S2964/16, S2965/16, S2966/16, S2967/16, S2968/16, S2969/16, S2970/16, S2971/16, S2972/16, S2973/16, S2976/16, S2977/16, S2978/16, S2979/16, S2980/16, S2981/16, S2982/16, S2983/16, S2984/16, S2985/16, S2986/16, S2987/16, S2988/16, S2989/16, S2990/16 and S2991/16
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	- Convicted on all charges of theft as a servant and sentenced to 2 years and 8 months imprisonment, less time in custody. These are to be served concurrently
Representation:	L. Sio and F. Ioane for Prosecution Defendant self-represented
Catchwords:
Words and phrases:	Theft as a servant
Legislation cited:	section 161 and 165(e) of the Crimes Act 2013
Cases cited:	Police v Keti [2015] WSSC 16 (5 March 2015) by Sapolu CJ, R v Barrick (1985) 81 Cr App R 78 by the English Court of Criminal Appeal, Police v Malaefono [2016] WSSC 199 (20 October 2016) Samoan cases of Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12, English Court of Criminal Appeal in R v Clark (1998) 2 Cr App R (S) 95, Police v Iaseto [2011] WSSC 150 (4 October 2011) by Nelson J, Police v Valaauina [2009] WSSC 21 (6 March 2009), Police v Vaovasa [2011] WSSC 161 (5 December 2011); Police v Ah See [2012] WSSC 73 (27 August 2012).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LOTOTASI SUSUGA TALATAINA male of Foaluga and Samata Savaii
Accused

Counsel:
L. Sio and F. Ioane for Prosecution
Defendant self-represented

Sentence: 24 March 2017

S E N T E N C E

1. The accused appears for sentencing on 32 charges of theft as a servant contrary to section 161 and 165(e) of the Crimes Act 2013. The maximum penalty for theft as a servant is 10 years imprisonment. These charges are: S2958/16, S2959/16, S2960/16, S2961/16, S2962/16, S2963/16, S2964/16, S2965/16, S2966/16, S2967/16, S2968/16, S2969/16, S2970/16, S2971/16, S2972/16, S2973/16, S2976/16, S2977/16, S2978/16, S2979/16, S2980/16, S2981/16, S2982/16, S2983/16, S2984/16, S2985/16, S2986/16, S2987/16, S2988/16, S2989/16, S2990/16 and S2991/16.
1. The accused entered guilty pleas at an early stage.

The Offending

2. According to the Summary of Facts accepted by the accused, he was an employee of Tradepac Marketing Samoa Limited (“Tradepac Marketing”) as a deliveryman. His responsibilities involved delivering stock and goods for his employer to retail outlets.
   
3. Between the 25^th May and 8^th July 2016, he carried out deliveries to retail outlets in Savaii. Monies were paid to him by Tradepac Marketing customers. On 32 separate occasions during this period, whilst delivering and selling goods, he collected and stole the money paid to him on behalf of his employer by its customers. These 32 occasions form the 32 charges for which the accused now appears for sentencing.
4. The Summary of Facts state that the total amount of the money stolen by the accused was $32,912.35. The charges however to which the accused pleaded guilty amount to $34,693.35. The Summary of Facts is amended accordingly to reflect the guilty pleas and the accused is sentenced on the higher amount to which he pleaded guilty.

The Accused

5. According to the Pre-Sentence Report, the accused is a 45 year old male matai. He was the only child to his parents and was raised with his father’s family at Fualuga Savaii. He completed Secondary School and then commenced employment with BOC Gas. After a short period with BOC, he worked at Yazaki EDS Samoa. He then worked for a short period at Punjas Samoa but resigned to “undertake [his] calling as a Bishop for [his] ward for 7 years” with the Church of the Latter Day Saints. On completion of his term as a Bishop, he then commenced employment with TradePac Marketing. This position was terminated following this offending.
6. The accused is married with 6 children. He earns $900.00 per fortnight from his kava plantation. His children all attend school.
7. The accused is a first offender. I have perused the testimonials submitted in support of the accused’s character provided by Bishop Letoa Semu Lealiiee of the Church of the Latter Day Saints and Soi Poese Fa’amausili, the Pulenuu of Samataitai.
8. The accused told the Probation Service that he stole the money to repay money belonging to Tradepac Marketing stolen from his delivery truck, presumably prior to this offending. At sentencing, the accused confirmed that he never told Tradepac Marketing of the alleged theft of that money from the delivery truck; that he never reported that alleged theft to Police; and that the first occasion that he mentioned this alleged theft was when he was interviewed by the Probation Service on the 3^rd of February 2017, shortly before sentencing. The accused was given an opportunity to consider his plea and whether he wished to apply to vacate his guilty plea to not guilty. After a 3 day adjournment for the accused to consider whether he wished to apply to vacate his guilty plea, the accused maintained his guilty plea. I accepted what the accused said in terms of his guilty plea and gave my reasons orally on the 23^rd February 2017.
   

The Victim

9. The victim of the offending is Tradepac Marketing. A Victim Impact Report was not made available to the Court for the purposes of sentencing. The accused however confirmed that he has not repaid any money to Tradepac Marketing.

Aggravating and Mitigating Factors

10. The aggravating features in relation to the accused’s offending are: (a) the serious breach by the accused who held a position of his employer’s trust, (b) the extensive number of times these offences were committed, (c) the length of time these offences were committed, (d) the degree of planning and pre-mediation involved in the accused’s offending, and (e) the total amount of money that was stolen was substantial.
11. There are no mitigating features in respect of the accused’s offending.
12. In relation to the accused as an offender, there are no aggravating features but there are mitigating features. These mitigating features are: (a) the fact that the accused had been a person of good character prior to his commission of these offences; and (b) the early pleas of guilty by the accused to the charges against him.

Discussion

13. In Police v Keti [2015] WSSC 16 (5 March 2015), His Honour Sapolu CJ examined the sentencing guidelines for certain types of fraud including thefts committed by employees in positions of trust in R v Barrick (1985) 81 Cr App R 78, a judgment of the English Court of Criminal Appeal. These sentencing guidelines have also been adopted and applied in the Samoan cases of Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12 and more recently in Police v Malaefono [2016] WSSC 199 (20 October 2016). Citing from R v Barrick (op. cit) per Lord Chief Justice Lane in delivering the judgment of the English Court of Criminal Appeal stated at pp. 81-82:

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the general punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but as less than $10,000, or thereabouts, terms of imprisonment ranging from the very short up to eighteen months are appropriate (see for example Weston (1980) 2 Cr. App. R (S) 391). Cases involving sums of between about £10,000 and £50,000 will merit a term of about two to three years imprisonment...”

14. The tariffs established in R v Barrick (op. cit) were re-set in the subsequent decision of the English Court of Criminal Appeal in R v Clark (1998) 2 Cr App R (S) 95 (see: Police v Keti (op. cit)) to take into account inflation.
15. In Police v Ulupoao (op. cit), His Honour Sapolu CJ also referred to the text Sentencing in Tasmania (2002) 2nd ed by Professor Kate Warner at p. 343 in respect of sentences passed in cases of fraud and theft committed in the course of an accused’s employment as follows:

"In assessing the severity of the conduct, the amount of money or value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued and the amount of restitution are important considerations. The degree of trust given to the defendant is a particularly important factor so that cases of employment in a position of financial trust are more seriously regarded than cases of employees who are not so employed but steal in the course of their employment. In cases of abuse of a position of trust, good character and an absence of prior convictions are typical and have little weight because of the expressed need for a general deterrent sentence. Nor do an immediate intention to repay, financial loss to the offender and personal humiliation have significant weight for they are all factors commonly encountered in cases of theft from an employer involving deception over a period of time."

16. Accordingly, in general, a term of imprisonment is inevitable, save in very exceptional circumstances or where the amount of money stolen is small. That this approach has been adopted by the Courts of Samoa should be well known. In Police v Iaseto [2011] WSSC 150 (4 October 2011), His Honour Nelson J stated in sentencing another employee of Tradepac Marketing:

“The courts sentencing policy for offences of theft as a servant is well known. Invariably the penalties are terms of imprisonment because of the seriousness of the crime and its prevalence in this community. Charges of theft as a servant involving a total amount of around $10,000 usually attracts a penalty of 18 months in prison on a first offender guilty plea basis.”

17. This approach was also applied in Police v Valaauina [2009] WSSC 21 (6 March 2009) and Police v Malaefono (op. cit).
18. Despite the Courts very clear denunciation of the offence of theft as a servant, the prevalence of this type of offending continues. For Tradepac Marketing, it has been the victim on 4 prior reported occasions for this same offending (see: Police v Iaseto (op. cit); Police v Vaovasa [2011] WSSC 161 (5 December 2011); Police v Ah See [2012] WSSC 73 (27 August 2012) and Police v Malaefono (op. cit)). All 4 accused in those matters were, like this accused, delivery truck sales representatives or involved in the supervision of deliveries. All 4 were sentenced to imprisonment. The accused has trodden the same path as his 4 predecessors and that path leads to the gates of Prison. There are no exceptional circumstances in the accused’s case to warrant otherwise.
19. For the accused, he has evidently been a man of apparent faith. He served his Church in the high post of Bishop for approximately 6 years, immediately prior to being employed by Tradepac Marketing. The Articles of Faith of the Church of the Latter Day Saints at article 13 states, in part:

“13 We believe in beinest, true true, chaste, benevolent, virtuous, and in doing good to all men....”

20. It is dilt to therefore reconcile tile the accused’s offending with his faith and his earlier post of Bishop, save as to say that he has strayed far from the teachings of his faith. The accused’s offending will be the source of personal humiliation to him. That personal humiliation however does not carry significant weight for they are all factors commonly encountered in cases of theft from an employer involving deception over a period of time. The personal humiliation is also a factor that he, like the many other offenders before him for this type of offending, should have considered as being the natural consequence of his dishonest actions.
21. I adopt the totality principles in sentencing. I have considered the cases referred to by prosecution together with other relevant sentencing decisions. Having considered the aggravating features relating to the accused’s offending; I find that a custodial sentence with a sentence start point of 3 years is 10 months is appropriate. I deduct 4 months for previous good character and 10 months for his guilty pleas.

The penalty

22. The accused is convicted on all charges of theft as a servant and sentenced to 2 years and 8 months imprisonment, less time in custody. These are to be served concurrently.
    

JUSTICE LEIATAUALESA DARYL CLARKE