Police v Sione [2018] WSSC 68 (16 February 2018)

IN THE SUPREME COURT OF SAMOA
Police v Sione [2018] WSSC 68

Case name:	Police v Sione
Citation:	[2018] WSSC 68
Decision date:	16 February 2018
Parties:	POLICE (Informant) v TONY SIONE, male of Toamua-uta & Matautu-uta and JASON RAELI, male of Vaitele-fou and Tufulele (Defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	Tony Sione: convicted and sentenced to 18 months supervision. For the lesser offences of forgery and using a forged document Tony Sione is convicted and sentenced to 6 months supervision. The supervision terms for the lesser offences are concurrent but, cumulative to the 18 months supervision for the main offence. This means that the accused Tony Sione is convicted and sentenced to 24 months or 2 years supervision. Jason Raeli: convicted and sentenced to 10 months’ supervision and 40 hours’ community service. Probation to talk with Jason Raeli that his 40 hours community service may be best utilized to servicing the Ministry cars given that he is a motor mechanic.
Representation:	R Titi for Prosecution Accused in Person
Catchwords:	Theft as a servant – two defendants - forgery – using a forged document – breach of trust – pre-meditation – significant amount stolen – first offenders – early guilty pleas – remorseful – non-custodial sentence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TONY SIONE, male of Toamua-uta & Matautu-uta and JASON RAELI, male of Vaitele-fou and Tufulele.
Accused

Counsel:
R Titi for Prosecution
Accused in Person

Sentence: 16 February 2018

SENTENCING OF TUATAGALOA J

1. Tony Sione and Jason Raeli were both employed by EPC; Tony Sione as a store clerk and Jason as a motor mechanic. Both are jointly charged with the theft of one (1) coil of PVC H/The Copper Cable valued at $5,432.46, the property of their employer.
2. The accused Tony Sione facilitated the theft by forging the signature of the Chief Engineer on an Internal Requisition Invoice and used the document to obtain the coil PVC H/D Copper Cable. He is also charged with forgery and using a forged document.
3. The accused Tony by facilitating the theft is the more culpable of the two accused in the commission of the theft while being employed by EPC. The pre-sentence report also says that he approached his co-accused and discussed the stealing of the PVC coil. He initiated the whole thing.

The accused Tony Sione

4. I will deal first with Tony Sione who is charged as follows:
   • (i) Theft as a servant (joint) with a maximum 10 years’ imprisonment;
   • (ii) Forgery with a maximum 7 years’ imprisonment; and
   • (iii) Using a forged document also with a maximum 7 years’ imprisonment.
5. I will adopt the totality approach in relation to the accused Tony Sione and take the theft as a servant as the leading offence. I take the aggravating factors identified by Prosecution of breach of trust; pre-meditation; the significant amount of the item stolen ($5,4332.46) and the impact of this offending on the employer in installing more strict and costly security measures to avoid future thefts from happening. The victim impact report (VIR) from the Acting Legal Advisor of the employer confirms that both accused apologized for their behaviour when they were internally interviewed but they had not formally apologized to Management.
6. Tony in his pre-sentence report said he went to try and see the General Manager to apologize but was told by security he was not available. He pleaded guilty to the offences and is a first offender.
7. Tony is married with 4 children. He is well educated having reaching University Preparatory Year (UPY) level. He was employed by Polynesian Airlines for 3 years prior to EPC.
8. As I said earlier the more culpable of the two accused is Tony Sione. The forgery and use of forged documents to facilitate the commission of theft as a servant by Tony can be taken as aggravating factors to the main offence. The prosecution recommends a custodial sentence of 18 months’ starting point for the main offence of theft as a servant. If I take the 18 months starting point recommended by the prosecution and then make deductions for the mitigating factors of prior good character, remorse and 25% for early guilty plea the end sentence will be most likely less than 12 months. I am mindful that the court takes a very stern stance with dishonest offences especially those of theft as a servant and imprisonment terms are always imposed as a measure of deterrence. The problem is, there has been no data to say that imprisonment term has a ‘deterrence’ impact on this offending (or for any offending). Secondly, prosecution has provided a few of the court’s sentencing on this offence and where the sentence imposed is always custodial but there have been sentencing of this court involving far more significant amounts over a period of months or years but the Court had imposed non-custodial sentences. What it comes down to is that each sentence is imposed according to the circumstances of each case.
9. For this defendant, to be imposed with an imprisonment term will not only do nothing for him but most importantly for the society as well. That is, with the level of education he has attained, his being a first offender and having pleaded guilty to the offence which I have no doubt he is truly remorseful, he deserves a second chance. A longer non-custodial term will be imposed that will make him accountable for his actions. Having a conviction will have a far more impact on future career opportunities and to his character as well.
10. For the offence of theft as a servant he is convicted and sentenced to 18 months supervision. For the lesser offences of forgery and using a forged document the accused Tony Sione is convicted and sentenced to 6 months supervision. The supervision terms for the lesser offences are concurrent but, cumulative to the 18 months supervision for the main offence. This means that the accused Tony Sione is convicted and sentenced to 24 months or 2 years supervision.

The accused Jason Raeli

11. I turn now to the co-accused Jason Raeli of the theft as a servant charge. As I said before the more culpable person in the commission of the offending of theft as a servant was the accused Tony Sione.
12. Jason Raeli was employed as a motor mechanic with EPC. He is also well educated reaching tertiary level and successfully completing a Certificate 3 in Automotive from Fiji. He is 27 years’ old of Vaitele-fou, married with 2 children.
13. It seems that his only involvement with the offence was driving the vehicle which carried the PVC coil out of the compound and went with his co-accused Tony Sione and sold it. He is a first offender and has pleaded guilty to the offence. Given his involvement and taking into account the mitigating factors in his favour, a non-custodial sentence is appropriate.
14. I convict and sentence the accused Jason Raeli to 10 months’ supervision and 40 hours’ community service. Probation to talk with Jason Raeli that his 40 hours community service may be best utilized to servicing the Ministry cars given that he is a motor mechanic.
15. Aua ne’i lua toe solitulafono. Faaoga lelei le taimi lea e toe atiae le mafaufau, toe saili nisi galuega e tausi ai lua aiga aua o leisi taimi e toe tulai mai ai i luma o le faamasinoga nei, e le toe tuu atua se avanoa.
    

JUSTICE TUATAGALOA