Police v Katopau [2018] WSSC 9 (7 February 2018)

IN THE SUPREME COURT OF SAMOA
Police v Katopau [2018] WSSC 9

Case name:	Police v Katopau
Citation:	[2018] WSSC 9
Decision date:	07 February 2018
Parties:	POLICE (Informant) and NEVILE KATOPAU, male of Samatau & Vaitele-uta (Accused)
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:	The accused for each count of theft as a servant is convicted and sentenced to 22 months’ imprisonment. All to be concurrent. For the offence of possession of narcotics, the accused is convicted and sentenced to 8 months supervision with the condition to attend the 8 weeks alcohol/drugs programme. The term of supervision to follow after serving his term in prison.
Representation:	F Ioane for Prosecution T Leavai for the Accused
Catchwords:	Theft as servant – possession of narcotics (marijuana) – breach of trust – pre-meditated – occurred a number of times – first offender – guilty plea – restitution – 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:

NEVILE KATOPAU, male of Samatau & Vaitele-uta
Accused

Counsel:
F Ioane for Prosecution
T Leavai for the Accused

Sentence: 07 February 2018

SENTENCING OF TUATAGALOA J

The charges:

1. The accused appears for sentence on the following charges:
   • (i) 5 counts of theft as a servant which penalty is maximum ten (10) years’ imprisonment; and
   • (ii) 1 count of possession of 18 marijuana seeds which penalty is maximum 14 years’ imprisonment.

The facts:

2. The summary of facts was read out and confirmed by the accused. The offending was carried out on 4 separate occasions in June and August 2016. The total amount stolen was $28,000.

The accused:

3. The accused was employed as a Sales Representative for Alnima Motors and at times as Acting Manager. He is 37 years’ old, married with 5 children. He was a taxi driver prior to working for Alnima Motors. The accused and his family live with his parents at Vaitele-uta.

Aggravating factors:

4. The aggravating factors of the offending are:
   • (i) Breach of trust;
   • (ii) Amount stolen is not minimal but significant;
   • (iii) Not a one-off offending but multiple over a period of 2-3 months; and
   • (iv) Degree of culpability is high due to the fact that the offending was pre-meditated.

Mitigating factors:

5. The mitigating factors are:
   • (i) First offender: testimonials by his parents, wife and Rev. Senara speak of his good character prior to the offending. There is nothing suggesting that the accused was not of good character prior to the offending.
   • (ii) Guilty plea;
   • (iii) Restitution made – the accused has repaid $22,000 ($11,000 each to two victims). The submission by his counsel is that the accused is working towards paying back the amount remaining of $6,000 to the third victim. He has only paid $1,000 yet has had ample time to pay it off but still hasn’t; and
   • (iv) Personal circumstances of the accused are taken into consideration.

Discussion:

6. The offences the accused is charged with are ‘dishonest’ offences. They are very serious offences which Parliament imposes a high penalty of maximum 10 years’ imprisonment.
7. Prosecution has asked for a custodial sentence for the theft as a servant charges with a starting point of 5 years, and 12 months’ supervision for the possession of narcotics.
8. Counsel for the accused asks for a non-custodial sentence with the following reasons:
   • (i) Accused has repaid back most of the money taken and is in the process of repaying the amount of $6,000 outstanding that if a custodial sentence is imposed, the accused won't be able to pay the amount outstanding.
9. I don’t like the tone of counsel’s submission. If the accused was genuine, he has had ample time to pay back the amount he stole. Those monies were not his in the first place. The fact also that his wife is pregnant with their sixth child is not a good enough reason not to impose a custodial sentence where the circumstances of the offending warrants it.
10. I will take into account those reasons raised by counsel to discount whatever sentence I impose. In saying that, I consider that a custodial sentence is appropriate.
11. I take 4 years as a starting point, less 6 months for first offender, a further 6 months for the money repaid and 6 months for his personal circumstances. As for his guilty plea, although late I will give 25% discount (8 months). This leaves 22 months.
12. The accused for each count of theft as a servant is convicted and sentenced to 22 months’ imprisonment. All to be concurrent.
13. For the offence of possession of narcotics, the accused is convicted and sentenced to 8 months supervision with the condition to attend the 8 weeks alcohol/drugs programme. The term of supervision to follow after serving his term in prison.
    

JUSTICE TUATAGALOA