Police v Fesolai [2018] WSSC 108 (17 October 2018)

SUPREME COURT OF SAMOA
Police v Fesolai [2018] WSSC 108

Case name:	Police v Fesolai
Citation:	[2018] WSSC 108
Decision date:	17 October 12018
Parties:	POLICE (Prosecution) AND PIO FESOLAI male of Faleasiu, Malie and Vaitele-Fou. (First Defendant) AND AMANONO MAFUALO male of Vaitele-Fou and Fusi Safotulafai. (Second Defendant)
Hearing date(s):	-
File number(s):	S275/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- As a gesture of leniency to you I will round off your sentences to 30 months or 2½ years in prison. There are no other deductions Pio and Amanono that can be made to your sentence. For this offence you will be convicted and sent to prison for 2½ years. Remand in custody time if any to be deducted.
Representation:	Ms Faasii for prosecution Defendants unrepresented
Catchwords:	- theft as a servant - maximum penalty - dishonestly take – admitted - holding a defendant accountable for the actions - no exceptional circumstances – premeditation - good background of service – convicted - remorseful
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PIO FESOLAI male of Faleasiu, Malie and Vaitele-Fou.
First Defendant

AND:
AMANONO MAFUALO male of Vaitele-Fou and Fusi Safotulafai.
Second Defendant

Counsel:
Ms Faasii for prosecution
Defendants unrepresented

Sentence: 17 October 12018

S E N T E N C E

1. Defendants have pleaded guilty to a charge of theft as a servant which carries a maximum penalty by law of 10 years imprisonment. The charge states that at Motootua during the year 2017 the defendants being servants of the National Health Services did dishonestly take sixteen (16) boxes of pharmacare paracetamol tablets valued at $10,560.00, such tablets being the properties of their employer the National Health Services. The defendants at the time were employed at the Pharmacy Division Warehouse of the National Hospital.
2. According to police summary of facts admitted by both defendants at a previous calling, the first defendant is a 35-year-old male of Vaitele-Fou and Malie married with four (4) children. Second defendant is a 31-year-old male of Vaitele-Fou and Fusi Savaii married and expecting a child.
3. The first defendant was employed as a Pharmacy Technician responsible for processing prescriptions as well as maintaining and updating the records of medicine dispensed from the warehouse. Second defendant was a Senior Pharmacy Technician. He was also responsible for processing prescriptions as well as maintaining the records of the warehouse and ensuring the dispensary was well stocked. Of the two defendants the second defendant was more senior but there is no reason to treat them differently as they were both involved to the same extent in the offending.
4. The facts reveal that the first defendant was acquainted with a lady named Emma Toamua who ran a delivery business selling items such as paracetamol to small retail shops presumably around the hospital and Apia area. What would happen is this lady would call the first defendant and request some paracetamol tablets for her business purposes and the two men would then organise for the tablets to be removed from pharmacy supplies and they would convey them to Ms Toamua. The record shows Ms Toamua has also been charged but I am unaware at this stage of the outcome of her court case. At least one person who worked with these defendants has also been charged and the court file notes that person has pleaded not guilty and his trial is scheduled for later this year.
5. The police summary of facts further discloses that during the period 31 December 2016 and 01 January 2018 which represents the year 2017, the defendants supplied to Emma Toamua on six occasions the sixteen (16) boxes of paracetamol removed from the Pharmacy Warehouse. The police summary also says that for this they were paid $150.00 each by the said Ms Toamua. And further confirms that the total value of the goods stolen in this fashion was $10,560.00.
6. The police say in their summary that they received reports from the Samoa Victim Support about the activities of the defendants and this led them to investigate the matter. Defendants were brought in for interview and when the first defendant was interviewed he admitted that they stole the boxes of paracetamol as alleged and sold it to Ms Toamua. The police also interviewed the second defendant and he also admitted to the same thing. The end result is the charge against the defendants to which they have pleaded guilty.
7. Theft as a servant as should by now be known to all is a common offence in our country and offenders regularly receive prison sentences from the court. Sentences are for the purposes of holding a defendant accountable for the actions and for the harm that they cause to the community through such criminal offending. And the sentences are designed to send a message to the defendants themselves as well as to the general public that if you do this sort of thing and you steal from your employer you can expect a prison term. It will be a very rare case indeed when people who steal from their employers will be considered for some other kind of penalty.
8. In this case gentlemen I have considered the circumstances and there are no exceptional circumstances justifying any penalty other than imprisonment. The court must continue to send the message to the community about this kind of offence. The real question for me as presiding judge is what penalty is appropriate given the circumstances of the matter.
9. The aggravating factors as correctly noted by the prosecution in their memorandum includes the element of premeditation because it took some planning to do what the defendants did. It is also relevant that it was not done on only one occasion, according to the summary it was done on six separate occasions over a one-year period. It is also relevant that the value of the stolen properties is significant it exceeds ten thousand tala ($10,000). Perhaps one of the most significant aggravating factors is the fact that these were hospital stores. They are there for the good and benefit of the people of the country. And you were entrusted to deal properly with these goods a trust which you broke. This is a serious breach of trust and significantly aggravates your offending.
10. As indicated the maximum penalty is now 10 years in prison for this theft. Considering all the factors of this matter however the court will start sentencing at 4 years in prison. From that start point there are certain deductions for matters in your favour which I will make on your behalf. The first is for your character and good background of service. I have read your pre-sentence report including the references attached to your reports from your faifeau and various other people including your former employer. Which I find curious but nevertheless they have elected to provide a reference. I have also looked at your background of tautua to your aiga as well as to the ekalesia and extended family and to your villages. To take into consideration those matters I deduct 6 months from the start point of sentence, leaves 3½ years in prison.
11. I accept you are both remorseful, you have told the court that in the last calling of this matter. Your pleas of guilty to this charge is also evidence of your real remorse. And the pleas of guilty means the court has been saved the expense of an enquiry and trial. For that you will receive full credit of a one-quarter deduction of the balance of your sentence that is 10½ months, leaves a balance of 31½ months in prison.
12. As a gesture of leniency to you I will round off your sentences to 30 months or 2½ years in prison. There are no other deductions Pio and Amanono that can be made to your sentence. For this offence you will be convicted and sent to prison for 2½ years. Remand in custody time if any to be deducted.

_____________________
JUSTICE NELSON