Police v Tevaga [2018] WSSC 26 (16 February 2018)

IN THE SUPREME COURT OF SAMOA
Police v Tevaga [2018] WSSC 26

Case name:	Police v Tevaga
Citation:	[2018] WSSC 26
Decision date:	16 February 2018
Parties:	POLICE (Informant) and ALAKONI PINETUAOI SIO TEVAGA, female of Samalaeulu, Vaitele-tai & Saanapu (Accused)
Hearing date(s):
File number(s):	S265/17 & S266/17
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- For information S265/17, you are convicted and sentenced to 2 years and 3 months imprisonment. For information S266/17, you are convicted and sentenced to 12 months imprisonment, that sentence to be served concurrently with S265/17.
Representation:	F Ioane for Prosecution A Lesa for the Accused
Catchwords:
Words and phrases:	significant amount of money involved, extent of your planning and premeditation, offending was ongoing and lengthy, carried out your offending while on bail for the same offence of obtain by deception
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Ah Kuoi [2016] WSSC 45
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ALAKONI PINETUAOI SIO TEVAGA, female of Samalaeulu, Vaitele-tai & Saanapu
Accused

Counsel:
F Ioane for Prosecution
A Lesa for the Accused

Sentence: 16 February 2018

SENTENCE

1. Alakoni, you appear for sentencing on two charges of obtaining by deception contrary to sections 172(a) of the Crimes Act 2013.
2. These charges filed in the Supreme Court carry a maximum penalty of 7 years imprisonment and fall within the jurisdiction of the District Court. I am satisfied that it is desirable and expedient in the interests of justice to hear and determine your sentencing within the jurisdiction of the Supreme Court.
3. In terms of the charges, you entered guilty pleas to the charges on the hearing date when two other charges against you were withdrawn by leave on prosecution application and dismissed.

The Offending

4. According to the Summary of Facts accepted by you through your lawyer, you were contacted by the victim to assist in processing a visitor’s visa to Australia for his partner. On the 16^th September 2016, you obtained from the victim $675.00 for his new passport, $150.00 for a statutory declaration and $5,800.00 for air fares. The total amount taken by you was $6,625.00 (S266/17).
5. On the 23^rd September 2016, the Australian High Commission contacted the victim by email advising him that the visitor visa had been declined. You never disclosed to the victim any information about his passport application or the statutory declaration but showed him only a hand written receipt for $5,800.00 for the air tickets. It seems that no air tickets were ever provided by you to the victim.
6. You then told the victim to prepare the second visa application. You also told him that your friend ‘Carolyn’ employed in the Australian High Commission would approve the visa application. The victim then compiled the material for the second visa application and this is said to have been lodged this on the 28^th September 2016. On the 17^th October 2016, you obtained a further $14,000.00 from the victim including all fees and payments for the second visa application (S265/17).
7. The victim and his partner made contact with you requesting correspondence relating to the visa application. You then created a false email under Carolyn’s name which made the victim believe the visa had been lodged. The victim had authorized you to act on his behalf during the visa application process. The victim and his partner waited until they discovered that you had lied to them about the visa application process and that the person named Carolyn had no knowledge of the visa application or of you.
8. The total amount you obtained by deception from the victim was $20,625.00. None of this money has been repaid directly to the victim. It is accepted by the victim in the VIR however that you did pay for a one way airfare for him to travel to Australia valued at $1,405.00 so the true amount of the direct loss is $19,220.00.

The Accused

9. You are a 26 year old female of Lano Savaii. You are in a de-facto relationship with two children. You told the Probation Service that you are self-employed in a sewing business but according to the Probation Service, that business has been closed for some time. You told the Probation Service that you are pregnant, however, there is no independent medical evidence to support this.
10. You have a reference from your Church Minister from the Seventh Day Adventist Church. He describes you as a ‘great person’, ’one of our strongest youth members who always exhibited an example of character work ethic and commitment’ and as a ‘kind of person with a good heart.’
11. I have also read the letters of support from your pulenu’u, your parents, your own letter as well as a letter from your child.

The Victim

12. The victim is a male of Rosemount Australia. He is a former hotel manager at the Savaii Lagoon Resort. He describes in the VIR the significant impact that your offending has had on him and his family. He says that the money that you took was a large portion of his savings. In addition to the direct financial costs of your offending, he incurred significant additional costs associated with progressing the visa application and travel to Samoa for the hearing amongst other costs.
13. The victim describes significant emotional distress arising from your actions and anger at himself for being taken advantage of in such a way.
14. The only tangible benefit received from you by the victim was the one way air ticket valued $1,405.00 for the victim to travel to Australia, which the victim perceptively understands to have been deliberately made a one way so that he wouldn’t return to Samoa. No apology has been rendered.

Aggravating and Mitigating Factors

15. The aggravating factors of your offending is:
    • the significant amount of money involved;
    • the extent of your planning and premeditation;
    • your offending was ongoing and lengthy;
    • you carried out your offending while on bail for the same offence of obtain by deception for which you were subsequently convicted and sentenced to a non-custodial sentence in December 2016; and
    • you created a false email account and impersonated an Australian government employee to perpetrate your offending.
16. The mitigating factors personal to you is your guilty plea. I do not accept that you are at all genuinely remorseful for your offending, a conclusion shared by the Probation Service. While you said that you had attempted to repay the money to the victim, there is no evidence of any steps taken by you to repay the money you had taken from the victim as a result of your offending. You have had a year to arrange repayment and had not done so as at the date of your sentencing.

Discussion

17. Alakoni, through your counsel, you have confirmed the Summary of Facts that says that you had lied to your victim about the visa application process for his new partner. You had also lied about ‘Carolyn’ at the Australian High Commission being involved in the visa application process and then created a false email account under Carolyn’s name, from which emails were then sent to mislead the victim into believing that the visa application had been lodged. This is quite contrary to what you have said in your letter to the Court, where you seek to reverse the blame of the victim’s loss to the victim himself.
18. You dishonestly took a large amount of money from the victim, lied about the visa process, created a false email with the purpose of misleading the victim and then apparently used most of the money for purposes other than for which it was given to you. That you continue to blame the victim for his loss and attempt to portray yourself as a good Samaritan and a victim yourself is disgraceful.
19. Prosecution seeks a custodial sentence with a start point of 3 years and an uplift of 6 months for her prior convictions for the same offending. As your offending here occurred when you were on bail for the same offence of obtain by deception, I will incorporate that into factors aggravating of the offending and not as an uplift as a factor personal to you as an offender.
20. In determining the appropriate sentence, I have considered the case authorities referred to by prosecution including in particular, the sentencing approach set out by His Honour Sapolu CJ in Police v Ah Kuoi [2016] WSSC 45. Alakoni, a custodial sentence is warranted in your case to denounce your conduct, to deter you and others from committing this or similar offending and to protect the community from your actions.
21. I apply the totality in sentencing approach and information S265/17 as the lead charge. I adopt three years start point for sentence. I deduct 3 months for the $1,405.00 paid for the one way ticket for the victim and deduct 6 months for the guilty plea, late as it was.

The penalty

22. For information S265/17, you are convicted and sentenced to 2 years and 3 months imprisonment. For information S266/17, you are convicted and sentenced to 12 months imprisonment, that sentence to be served concurrently with S265/17.

JUSTICE CLARKE