Police v Fiamatai [2018] WSSC 101 (7 September 2018)

SUPREME COURT OF SAMOA
Police v Fiamatai [2018] WSSC 101

Case name:	Police v Fiamatai
Citation:	[2018] WSSC 101
Decision date:	7 September 2018
Parties:	POLICE v TOGIASO FIAMATAI male of Fagamalo Savaii.
Hearing date(s):
File number(s):	S980/18 & S979/18.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, in respect of both charges of burglary and theft, you are convicted and sentenced to 6 months imprisonment, to be served concurrently less time remanded in custody.
Representation:	F. Ioane for prosecution Accused self-represented
Catchwords:
Words and phrases:	burglary and theft, gross breach of trust by you as you were the security guard, they are burglarizing or stealing from the very property they are paid to protect.
Legislation cited:
Cases cited:	Police v Saolotoga Pupumai (30 September 2013) per Nelson J, His Honour Nelson J stated in Police v Oloapu [2015] WSSC 232 (20 July 2015), (Police v Amazing Asiata (8 August 2017)) and custodial (Police v Fa’atui Fuamemoe (2 August 2016), Police v Taase [2012] WSSC 54 (2 April 2012), Police v Oloapu [2015] WSSC 232 (20 July 2015) and Police v Uli [2018] WSSC 42 (2 March 2018)).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TOGIASO FIAMATAI male of Fagamalo Savaii.
Accused

Counsel:
F Ioane for prosecution
Accused self-represented

Sentence: 7 September 2018

S E N T E N C E

1. Togiaso, you appear for sentencing on one charge of burglary and one charge of theft as a servant, both charges carrying a maximum penalty of up to 10 years imprisonment. You entered an early guilty plea to the two charges.

The Offending:

2. You were employed as a security guard with your employer, the Savaii Lagoon Resort.
3. According to the Summary of Facts accepted by you, on the evening of Monday13th June 2018, you were working at the Savaii Lagoon Resort. You noticed that the back door to the store room was open. You did not report the open door nor did you make a note of the open door in your note book.
4. Without your employer’s authority, you then entered the store room, climbed the wall into the store room and entered the Resort Manager’s office. As you came down from the wall, you landed on the plastic table causing the petty cash box to fall to the ground and scatter.
5. From the petty cash, you stole $1,846.00.
6. The matter was reported to the Police and according to what you told the Probation Service in your Pre-Sentence Report, you were arrested the next day. According to Police, the amount of $520.00 was recovered from you.

The Accused:

7. You are a 26 year old male of Fagamalo, Savaii. You are in a de-facto relationship with 2 children. You are the second eldest of 7 children and completed high school. After high school, you attended the National University of Samoa but did not complete the NUS course. You commenced employment with the Savaii Lagoon Resort in 2017. As a result of your offending, your employment was terminated.
8. You told the Probation Service that you committed your offending because you were frustrated because you had requested 8 hour shifts but were only being given 4 hour shifts. You also told the Probation Service that you had apologized to the owners of the Savaii Lagoon Resort and that your apology was accepted. You have also been fined by your village involving 1 cattle, 4 sow, 20 boxes of canned fish and $300.

The Victim:

9. The victim of your offending is your former employer. The Manager of the Resort stated that no apology has been made by you to your former employers. When your matter was heard for submissions on sentence, you rejected this and said that you had apologized to them at the Police Station. Your former employers have now written to the Court stating that you did not apologize to them and they have not seen or spoken to you since you committed your offending. Your former employers are New Zealanders who live in New Zealand and only come to Samoa from time to time.

Aggravating and Mitigating features of Offending:

10. The aggravating features of your offending are as follows:
    • (i) the gross breach of trust by you as you were the security guard; and
    • (ii) the value of the money by you which by our Samoan standards is not small.
11. There are no mitigating features to your offending.

The aggravating and Mitigating features relating to you as an Offender:

12. You are a first offender and there are no aggravating features personal to you as an offender. I take into account in mitigation your prior good character, remorse, village penalty imposed and early guilty plea. Whilst you have stated that you apologized, I do not accept this occurred.

Discussion:

13. Prosecution seeks a custodial sentence with a start point of 2 years imprisonment and refers to Police v Saolotoga Pupumai (30 September 2013) per Nelson J. The Probation Service concludes that if an alternative to imprisonment is to be considered, a community based sentence of 12 months supervision and 100 hours community work is appropriate.
14. In dealing with your sentencing Togiaso, offending by security guards against the properties they are tasked to protect or those owned by their employers is a serious offence because they are burglarizing or stealing from the very property they are paid to protect. As His Honour Nelson J stated in Police v Oloapu [2015] WSSC 232 (20 July 2015):

“The message must go out to all security guards. You are the last line of defence of an employer. Your job is to catch the thieves not become one. This was a severe breach of trust by defendants.”

15. As the Courts have stated on various occasions, where security guards steal from their employers, a deterrent sentence is generally imposed and when security guards steal, they run the real risk of imprisonment. In your case, I accept that a custodial sentence is appropriate.
16. Having perused the Sentencing Memorandum by Prosecution, the authorities referred to show that sentences have varied between non-custodial (Police v Amazing Asiata (8 August 2017)) and custodial (Police v Fa’atui Fuamemoe (2 August 2016); Police v Saolotoga Pupumai (30 September 2013) and those authorities referred to by Prosecution). The majority however result in custodial sentences.
17. Having considered the authorities I have been referred to together with various other sentencing authorities involving theft and burglary by security guards (see: Police v Taase [2012] WSSC 54 (2 April 2012); Police v Oloapu [2015] WSSC 232 (20 July 2015); Police v Oloapu [2016] WSDC 42 (7 October 2016); and Police v Uli [2018] WSSC 42 (2 March 2018)), I adopt 12 months start point for sentence on both charges. I deduct 3 months for your remorse, prior good character and village penalty. For your early guilty plea, I deduct 3 months. That leaves 6 months imprisonment.

The penalty:

18. Accordingly, in respect of both charges of burglary and theft, you are convicted and sentenced to 6 months imprisonment, to be served concurrently less time remanded in custody.

JUSTICE CLARKE