Police v Fruean [2018] WSSC 127 (21 December 2018)

SUPREME COURT OF SAMOA
Police v Fruean [2018] WSSC 127

Case name:	Police v Fruean
Citation:	[2018] WSSC 127
Decision date:	21 December 2018
Parties:	POLICE (Prosecution) AND DAVID FRUEAN male of Apia. (First Defendant) AND SETOA MOLESI male of Falealupo and Letogo. (Second Defendant)
Hearing date(s):	-
File number(s):	S1611/15, S1613/15, S1617/15, S1618/15, S1627/15, S1628/15, S1629/15, S1630/15, S1631/15, S1633/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The sentence of the court for these charges will be as follows: you are convicted and sentenced to twelve (12) months supervision on condition that you perform 100 hours of Community Service in both these programs under the supervision of the Probation Office. There may be other programs the office runs that you can help with, whatever it is, that is how you can serve your 100 hours each. In addition to that each of you will pay the costs of the prosecution $300, court costs of $200. That is a total of $500 each, payable by 12:00 noon on Monday 24 December 2018, in default you will serve 6 months in prison.
Representation:	L Faasii for prosecution T Leavai for first defendant H Wallwork for second defendant
Catchwords:	False accounting - fictitious invoices – pleaded guilty – contributed to concealing the dishonest activities – co-defendant – intent to obtain at least a benefit by deception – reduces level of cranial culpability – custodial penalty is not warranted – penalty must still reflect seriousness of your offending - denouncing what you did as unacceptable – personal and general deterrent effect – mitigation – apology and reconciliation – talented men – convicted and sentenced
Words and phrases:
Legislation cited:	Sentencing Act 2016
Cases cited:	Police v Kereti [2015] WSSC 167
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

DAVID FRUEAN male of Apia.
First Defendant

AND:

SETOA MOLESI male of Falealupo and Letogo.
Second Defendant

Counsel:
L Faasii for prosecution
T Leavai for first defendant
H Wallwork for second defendant

Sentence: 21 December 2018

S E N T E N C E

1. The uncontested police summary of facts says the first defendant David Fruean is a 41-year-old male of Apia. Second defendant Setoa Molesi a 49-year-old male of Falealupo and Letogo. The victim company is Asco Motors Limited in Apia. At the time of the offending the defendants were employees of the company. David was Manager for Tyres and Batteries while Setoa was National Parts Manager.
2. The summary goes on to say that each defendant on their own issued fictitious invoices making it appear that the companys car parts are accounted for in the daily stock take. And that these parts were legitimately purchased upon invoices when in fact they were not. The fictitious invoices were then posted by each defendant on the accounting system. The defendants used old purchase order numbers or created fictitious order numbers from Government Ministries who were regular customers of Asco Motors.
3. The first defendant David Fruean did this on four separate occasions, once in 2013 once in 2014 and twice in 2015.

	Information #	Date	Invoice #	Amount	Ministry PO used
1	S1617/18	24/05/2015	38841A	SAT$1,840.00	Ministry of Police
2	S1618/15	27/07/2013	39265A	SAT$6,984.02	Ministry of Health
3	S1613/15	30/05/2015	40982A	SAT$4,079.97	Ministry of Agriculture & Fisheries
4	S1611/15	30/05/2014	40979A	SAT$4,742.00	Ministry of Women Community & Social Development

4. The second defendant Setoa issued invoices on six (6) different occasions, twice in 2013 and four times in 2014.

	Information #	Date	Invoice #	Amount	Ministry PO used
1	S1627/15	21/08/2014	41412A	SAT$1,840.00	Ministry of Police
2	S1629/15	17/01/2013	38039A	SAT$9,722.61	Samoa Law Reform Commission
3	S1628/15	31/03/2013	40683A	SAT$3,636.59	Ministry of Agriculture
4	S1630/15	19/08/2014	41383A	SAT$1,900.00
5	S1631/15	19/08/2014	41384A	SAT$1,600.00
6	S1633/15	19/08/2014	41382A	SAT$1,600.00

5. As a result of their activities the first defendant is charged with four (4) counts of false accounting and the second defendant with six (6) counts of false accounting. Charges which you gentlemen have pleaded guilty to.
6. The defendants explanation is they did this to cover up shortages in stock. A third defendant has been sent to prison for the theft of such stock. But the prosecution expressly conceded when submissions in this matter were heard that there was no collusion between these defendants and the defendant sent to prison. It therefore appears the defendants actions may have unwittingly contributed to concealing the dishonest activities of their co-defendant. But they were not part of a tripartite theft ring as contemplated by me when I sentenced that co-defendant to prison.
7. The defendants however must still take responsibility for the loss that their actions have however innocently caused. Setoas counsel has suggested her client did this to protect junior members of their team some of whom earned very low salaries. Well that may be so but it does not excuse the defendants who have pleaded guilty to a criminal offence involving an intent to obtain at least a benefit by deception. In plain language David and Setoa what you did was dishonest and cannot be excused.
8. You both admitted you should have done more to investigate how and why the shortages occurred instead of taking the easy way out and creating a false document to cover up what was happening. I accept that and it reduces the level of your criminal culpability. The real question for me to decide gentlemen is whether that saves you from the penalty imposed on your co-defendant.
9. I have carefully read all the documents in this matter including the reports from the Probation Office. I have also listened to what your lawyers have said both verbally and in writing as well as submissions by the attorney for the police.
10. I have come to the conclusion that considering all the circumstances a custodial penalty is not warranted. There is scope for such a penalty in appropriate cases. David Frueans counsel has cited Police v Kereti [2015] WSSC 167 as one example. That case also refers to other examples.
11. But the penalty gentlemen must still reflect the seriousness of your offending and the extra work that was required by your then employer to investigate and remedy the situation you both created. As outlined by them in the victim reports. The courts penalty should also incorporate those applicable factors referred to in the Sentencing Act 2016 such as holding you to account for your actions, denouncing what you did as unacceptable and so as to have a personal as well as a general deterrent effect. It is also relevant this matter goes back many years and the prosecution did not finalise the charges against you until 2018 when you then entered guilty pleas.
12. In particular, I take into account in mitigation your good backgrounds of service to your families and community, your clean records, the various character testimonials that have been made. Also the fact that an apology and reconciliation has taken place as confirmed by Probation Office which seems to indicate the victim company has put the matter behind them. Your guilty pleas are also significant because it has saved the time and limited resources of the court. These are the factors in your favour.
13. You are both talented men. You Setoa are a mechanic by trade, you David are heavily involved in youth activities. I am going to put those talents to good use. You will atone for your offending by helping the many young misguided offenders who come before this court who are in need of skills to be taught as well as mentoring. There are two programs I have in particular in mind: one is the Samoa Victim Support Youth Development Program that I think you can both assist with. There is also Pastor Faafetais Teen Challenge Program which again is a program for young people who have strayed from the path I am sure your talents can also be used there.
14. The sentence of the court for these charges will be as follows: you are convicted and sentenced to twelve (12) months supervision on condition that you perform 100 hours of Community Service in both these programs under the supervision of the Probation Office. There may be other programs the office runs that you can help with, whatever it is, that is how you can serve your 100 hours each.
15. In addition to that each of you will pay the costs of the prosecution $300, court costs of $200. That is a total of $500 each, payable by 12:00 noon on Monday 24 December 2018, in default you will serve 6 months in prison.
16. O le fa’aiuga lena o le lua mataupu, ma ou te talitonu foi e le po se lilo ia oulua e le tau fai atu foi se tala a le fa’amasinoga pe a toe tulai seisi o oulua i se mea fa’apea. O lea ua fa’apitoa le faiga o le fa’aiuga mo le lua mataupu i le asō. Ae a toe molia mai seisi o oulua i se mea fa’apenei o le a matuā ese a le fa’aiuga e la’asia a le Fa’amasinoga. Ua manino lea tulaga i lua susuga? (Defendants indicated they understood).

JUSTICE NELSON