Police v Pei [2017] WSSC 87 (7 June 2017)

THE SUPREME COURT OF SAMOA

Police v Pei [2017] WSSC 87

Case name:	Police v Pei
Citation:	[2017] WSSC 87
Ruling date:	7 June 2017
Parties:	POLICE (Prosecution) v AIGA LAGOLAGO PEI female of Faiaai, Tapueleele Savaii and Vaiusu Accused
Hearing date(s):	7 June 2017
File number(s):	S2914/16 and S1897/16
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	The accused is convicted of both charges before the Court and is sentenced to 12 months supervision to be served concurrently on the following conditions: (i) she carries out 180 hours community work at the SVSG and if SVSG does not accept her community work, as otherwise directed by the probation service; and (ii) she carries out 6 weeks spiritual counseling program with the SVSG or other service provider as directed by the probation service. The accused is also ordered to pay $500.00 prosecution costs within 14 days.
Representation:	L. Sio for Prosecution Defendant in person
Catchwords:	theft as a servant - gross breach of her employers trust -
Words and phrases:
Legislation cited:	section 161 and 165(e) of the Crimes Act 2013
Cases cited:	Police v Fuainina Sofai, an unreported judgment I delivered on 27 March 2017, Police v Iteli [2009] WSSC 12, Sapolu CJ Police v Keti [2015] WSSC 16 Police v Uluapo [2007] WSSC 21 (op. cit), Sapolu CJ. Police v Vaifale [2010] WSSC 60 (15 March 2010), R v Barrick (1985) 81 Cr App R 78,
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AIGA LAGOLAGO PEI female of Faiaai, Tapueleele Savaii and Vaiusu
Accused

Counsel:
L. Sio for Prosecution
Accused in person

Sentence: 7 June 2017

S E N T E N C I N G D E C I S I O N

1. The Accused appears for sentencing on 2 charges of theft as a servant in breach of section 161 and 165(e) of the Crimes Act 2013. The maximum penalty for theft as a servant is 10 years imprisonment.
2. The Accused was found guilty of the theft of $900.00 from her employer, Aggie Greys Sheraton Hotel Apia (“Sheraton”) following a defended hearing (Information S2914/16). The Accused entered an early guilty plea to Information S2897/16 for the theft of the sum of $485.32 (S2897/16).

The Offending

3. In respect of Information S2914/16, I have set out in detail the facts of that offending in my written judgment dated the 17^th May 2017. I will therefore only briefly restate the facts.
4. On the night of the 14^th September 2016, the Accused was the Duty Manager at the Sheraton. As Duty Manager, she was in charge of the hotel in the absence of management staff after hours. That night, she received from Joshua Penia the takings for the restaurant amounting to $1,214.00.
5. Contrary to hotel policy, the Accused did not wish to count the money received from Mr Penia but only did so on the urging of Mr Penia. On completion of the cash count, she then breached hotel policy by not depositing the takings in the presence of Mr Penia. She said she was too busy and assisted at the reception leaving the takings on her desk. Half an hour later, she returned to the desk and then deposited the money into the safe. The next morning, a cash count was taken and it was discovered that $900.00 was taken from the envelope.
6. The Accused suggested at her hearing that the money was stolen when it was left on her desk. As I set out in my judgment of the 17^th May 2017, I rejected that defence and found that the Accused orchestrated circumstances at the Front Office that night to enable her to later attempt to deny the theft.
7. In respect of the second charge with which the Accused pleaded guilty, according to the Summary of Facts accepted by her, on the 21^st September 2016, she received a cash float of $1,000.00. A surprise count was carried out on her float by the hotel’s General Cashier. When asked for the count, she ignored the general cashier. Only when the cash float was demanded that she admitted that she used part of the float for her personal fa’alavelaves. The cash float was short $485.32. In her statement to the Court, the Accused said that she had given the money to a staff member and had not used it for herself saying “I am that kind of person.”

The Accused

8. According to the Summary of Facts, the Accused is a 29 year old female from Vaiusu. She is married with 4 children between the ages of 11 years of age and 2 months old. According to the Pre-Sentence Report (PSR), the Accused completed school to UPY in 2005. She held various jobs over the years, however, these appear to often be for fairly short periods of time. Between 2011 and 2016, she did not work but then started employment with Sheraton in about February 2016. She committed these approximately 7 months after commencing her employment. She is currently unemployed but based on her PSR and references, appears to have been a person of good character prior to the commission of these offences.

The Victim

9. The victim of the Accused’s offending is Sheraton. A VIR was provided late yesterday. The victim states that the accused has apologized, offered to repay the balance owing and ask for leniency in sentencing.

Aggravating Factors:

10. The aggravating factors of the Accused’s offending are as follows:
    1. Gross breach of her employers trust given her position as Hotel Duty Manager and Guest Services Manager. When she committed the theft on the 14^th September (Information S2914/16), she was Hotel Duty Manager and there was therefore a significant degree of trust entrusted to her by her employer;
    2. The Accused carried out offending on two separate occasions;
    100. Her level of deception in respect of her first set of offending which also includes an element of premeditation; and
    4. The value of the money stolen of $1,385.32.

The mitigating factors

11. The mitigating features of this matter are the Accused’s early guilty plea to S S2897/16, reconciliation and apology to her employer in respect of S2897/16, the repayment of the sum of $485.32, her remorse in respect of S2897/16 and prior good character. In light of the apology to the victim, late as it was reflected in the VIR, I accept that the Accused is remorseful for her actions that have brought here before the Court.

Discussion

12. In this matter, it is difficult to understand the Accused’s theft of $485.32 carried out on the 21^st September 2016, just one week after she stole the $900.00. This is because it was clear on the Accused’s own evidence at her trial that she was aware that she was already suspected of the earlier theft of $900.00 prior to the 21^st September 2016. Despite being aware that she was suspected of theft, she nevertheless stole the $485.32 on the 21^st September 2016. At her sentencing, asked about this, she could not explain why she would steal on the 21^st September 2016 knowing she was suspected of the earlier theft just a week earlier. It was brazen in the circumstances and very foolish of the Accused, particularly as she acknowledged at her sentencing hearing that she was aware that the Court’s approach to theft as a servant was often imprisonment.
13. Theft as a servant is a highly prevalent offence in Samoa. As stated by His Honour Nelson J in Police v Vaifale [2010] WSSC 60 (15 March 2010) which also involved sentencing on a charge for theft

“Like drug offending, theft servant is one of thef the most prevalent offences in our community and because of that and the seriousness of such offendnd itsequences to a sm a small community, the court has evolved a normal sentencing policy for sfor such offences of imprisonment unless there are strong reasons why a case should be treated differently. And for repeat offenders, come knowing that nothing will save you from prison.”

14. In Police v Fuainina Sofai, an unreported judgment I delivered on 27 March 2017, I set out in that judgment sentences handed down in comparable cases involving amounts similar to those in this case. As that judgment shows, sentences imposed over the years have varied between custodial and non-custodial sentences.
15. In Police v Keti [2015] WSSC 16 (5 March 2015), Honourable Sapolu CJ stated at paragraph 17:

“the sentencing guidelines decision for certain types of fraud including thefts committed by employees in positions of trust given in R v Barrick (1985) 81 Cr App R 78, 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....”

16. In Police v Iteli [2009] WSSC 12, Sapolu CJ stated:

“In general, this Court has imposed terms of imprisonment in cases of theft as a servant except where the amount of money or the value of the goods taken is "small". By Samoan standards $1,203.40 is not a "small" amount even though it is also not a very large amount.”

17. In Police v Uluapo [2007] WSSC 21 (op. cit), Sapolu CJ further stated in terms of the amount stolen:

“I would also not describe the total amount of $1,050 that was taken by the accused as "small" even though it is much less than the total amounts involved in some of the theft as a servant cases that have come before the Courts.”

18. Prosecution seeks an imprisonment term with a start point of 12 months. Prior to filing of the VIR yesterday, I had determined that a custodial sentence was warranted given the amount stolen and the quality and degree of trust reposed in the Accused by her employer was significant and her theft was therefore a substantial breach of that trust and as a deterrent to the accused and others from committing this offence. That determination of a custodial sentence however in all the circumstances in the absence of the VIR was finely balanced. I have now however had the benefit of reading the VIR filed yesterday a week later than ordered. The Accused has (a) again apologized to the victim and which apology was accepted; (b) the victim pleads for a chance to be extended to the accused as “she was a very hardworking associate who always performed her tasks to the best of her abilities”; and (c) the victim accepts the Accused’s offer to repay the balance of the money stolen.
19. A deterrent sentence can be imposed in ways other than imprisonment. It is also clear that the accused had a promising future with the victim, a future she has now forgone. A conviction will be recorded against her name. I accept that this will also have a significant impact on the Accused’s future and is punishment itself. These are convictions which she no doubt will be ashamed of, and rightly so. Her actions are shameful and the convictions will follow her for the rest of her life. I also bear in mind the accused personal circumstances. A non-custodial sentence in the circumstances will therefore be imposed.

The penalty

20. The accused is convicted of both charges before the Court and is sentenced to 12 months supervision to be served concurrently on the following conditions:
    • (iii) she carries out 180 hours community work at the SVSG and if SVSG does not accept her community work, as otherwise directed by the probation service; and
    • (iv) she carry out 6 weeks spiritual counseling program with the SVSG or other service provider as directed by the probation service.
21. The accused is also ordered to pay $500.00 prosecution costs within 14 days.

JUSTICE LEIATAUALESA DARYL CLARKE