Police v Tuaimalo [2017] WSSC 92 (20 June 2017)

THE SUPREME COURT OF SAMOA
Police v Tuaimalo [2017] WSSC 92

Case name:	Police v Tuaimalo
Citation:	[2017] WSSC 92
Sentence date:	20 June 2017
Parties:	POLICE (Prosecution) v MANI TUAIMALO male of Matautu-uta Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	- Convicted and sentenced to 12 months supervision. A special condition of that supervision is that he is to perform 80 hours of community service to Samoa Victim Support Group. He is also ordered to pay Court costs of $500. This is payable by 4pm on Friday 23 June 2017, in default 6 months imprisonment.
Representation:	O Tagaloa for Prosecution T Leavai for the accused
Catchwords:	Theft as a servant – breach of trust
Words and phrases:
Legislation cited:	Crimes Act 2013 s.161(a),165(e) and 33
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

MANI TUAIMALO male of Matautu-Uta
Accused

Counsel:
O Tagaloa for Prosecution
T Leavai for the accused

Sentence: 20 June 2017

S E N T E N C E

The charge

1. The accused appears for sentence on one joint charge of theft as a servant, contrary to sections 161(a), 165(e) and 33 of the Crimes Act 2013.
2. The co-accused has been issued with a warrant of arrest.
3. Theft as a servant carries a maximum penalty of 10 years imprisonment.
4. He pleaded guilty to the charge on 6 May 2017.

The offending

5. The Prosecution summary of facts admitted by the accused says that he was a delivery truck driver for Frankie Company Limited at Fugalei. On 4 March 2017 at around 9.30 am, the accused and his co-accused loaded the delivery truck with two hundred boxes of chicken legs. They took an extra 20 boxes of chicken legs and 5 boxes of turkey wings and put them into the truck. They delivered the 200 boxes of chicken legs to Frankie Hyper Company at Vaitele. Afterwards the accused and co-accused went and sold the 20 boxes of chicken legs and 5 boxes of turkey wings and divided the money between them. A box of chicken legs is valued at $43.00 while a box of turkey wings is valued at $46.00. The total value of the stolen goods is SAT$1090.00

The accused

6. The accused is 31 years old. He is single with has a daughter who is 7 years old. He has sole custody of his daughter. He currently works earning a salary of $300.00 per week.
7. His mother, village mayor and church minister have provided character references in which they speak of his good character.
8. He has previous convictions for dishonesty offences.

Aggravating features of the offending

9. Aggravating factors are the breach of trust, the level of premeditation and the value of the theft.

Aggravating features in relation to the accused

10. The accused has four previous convictions, two for theft and two for forgery in 2012.

Mitigating factors

11. The accused has apologised to the complainant company and the apology was accepted. This is confirmed in the victim impact report.
12. The goods were recovered and in good condition which means the complainant company did not suffer any financial loss.
13. I take into account his references and in particular the fact that he lives with and has sole custody of a 7 year old daughter.
14. It is a mitigating factor that the accused entered a guilty plea.

Discussion

15. Prosecution submits that an imprisonment term with a starting point of 18 months is appropriate in this case.
16. As this Court has remarked on several occasions, this type of offending not only affects the employer but the economy and the community as a whole. The accused must realise that this type of conduct creates an atmosphere of distrust within workplace and affects the financial stability of companies.
17. It is also a significant breach of trust. The complainant company provided him with a job so that he can make a living. In return, he has committed this offence.
18. This accused should be imprisoned as he has committed this type of offence before and this shows that he has the propensity towards this type of offending.
19. However I take into account that he has a 7 year old daughter and he has sole custody of her. It is fortunate that the company did not suffer any financial loss as a result of this offending.
20. Having considered all the circumstances of the offending, I have decided to impose a non-custodial sentence. He will be supervised by Probation and he is warned that this is the last opportunity given to him by the Court. The next time he appears for dishonesty offences, he will most likely receive a sentence of imprisonment.

Sentence

21. The accused is convicted and sentenced to 12 months supervision. A special condition of that supervision is that he is to perform 80 hours of community service to Samoa Victim Support Group. He is also ordered to pay Court costs of $500. This is payable by 4pm on Friday 23 June 2017, in default 6 months imprisonment.

JUSTICE TAFAOIMALO TUALA WARREN