Police v Su'a [2019] WSSC 29 (4 March 2019)

SUPREME COURT OF SAMOA
Police v Su’a [2019] WSSC 29

Case name:	Police v Su’a
Citation:	[2019] WSSC 29
Decision date:	4 March 2019
Parties:	POLICE v SEINE PULE SU’A female of Avao and Lalovaea
Sentencing date(s):	4 March 2019
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, in respect of information S1743/17 you are convicted and sentenced to 1 year and 7 months imprisonment, less time remanded in custody. In respect of information S1732/17, you are convicted and sentenced to 1-year imprisonment, concurrent. All other charges, you are convicted and sentenced to 3 months imprisonment, concurrent.
Representation:	F Ioane for Prosecution T Lei Sam for the Accused
Catchwords:	theft as a servant
Words and phrases:	serious breach of trust; premeditated and planned nature of your theft; theft through the company’s delivery is a very common scheme that comes before the Court.
Legislation cited:
Cases cited:	Nelson J stated in Police v Tiatia [2014] WSSC 149 (3 July 2014); Police v Falevao and Police v Tolova’a.a
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SEINE PULE SU’A female of Avao and Lalovaea.
Accused

Counsel:
F Ioane for Prosecution
T Lei Sam for the Accused

Decision: 4 March 2019

O R A L S E N T E N C E

The Charges:

[1] Seine, you appear for sentencing on seven charges of theft as a servant as set out in the Summary of Facts accepted by you through your counsel. The maximum penalty for each charge of theft as a servant is 10 years imprisonment.

The Offending:

[2] According to the Summary of Facts accepted by you through your counsel, you were responsible for the delivery of the victim company’s goods to various stores. The goods are sold to these various stores and you received payments and invoices are issued for the goods delivered. The invoices and payments received by you are then recorded in the victim’s company log book for their records.
[3] On seven separate occasions, you being an employee of the victim company sold goods on behalf of the victim company to various stores and issued invoices. You would then receive full payment of the invoices from the shop owners. You would then write “NP” not paid on some of the invoices so that it would appear that the goods were sold on credit when in fact you had retained the said invoices and money for yourself. You then used the money stolen for your personal use. Your offending occurred between the 25th February 2017 and the 24th December 2017. The total amount stolen by you was $16,263.30. It is accepted that you have repaid $2,256.00 of the money stolen by you.

Background of the Accused:

[4] You are a 43 year old woman with eight children. You are the third eldest of your parent’s 10 children. You completed school to year 13. You have previously been employed at Yazaki, Fairbairn Dunlop & Associates and held other positions before being employed by Bargain Wholesale.

The Victim:

[5] The victim of your offending is Bargain Wholesale Company. You have apologized to the managing director of the Bargain Wholesale and asked for forgiveness. The apology was not accepted by the managing director of Bargain Wholesale who will only accept the apology if the stolen money is repaid in full.

Aggravating Features of the Offending:

[6] The following are the aggravating features of your offending:

• (i) Serious breach of trust given your position within Bargain Wholesale;

(ii) The premeditated and planned nature of your theft;
(iii) That you did so on 7 occasions over 10 months; and

• (iv) The amount of money stolen by you which by our standard is a significant sum of money.

[7] There are no mitigating features in respect of your offending.
[8] There are also no aggravating factors personal to you as an offender, you are a first offender.

Mitigating Factors as an Offender:

[9] These are the mitigating factors personal to you that I take into account on sentencing:

• (a) I accept your remorse as genuine together with your repayment of the sum of $2,256.00;
• (b) I accept your prior good character reflected in the references provided in support of you; and
• (c) Your guilty plea to the charges which was entered when duplicate charges were withdrawn;

Discussion:

[10] Seine, the theft you committed from your former employer through the company’s delivery is a very common scheme that comes before the Court. Sadly, it is unlikely to be the last of these cases.
[11] The Court’s approach to sentencing for theft as a servant is quite clear. As Nelson J stated in Police v Tiatia [2014] WSSC 149 (3 July 2014):
“The Courts policy in respect of such offending is well established by a long line of cases. It is serious offending and its effects are always acutely felt in a small community such as ours. It is also one of the most common offences coming before the Court. Consequently, the Courts policy is to impose imprisonment as its usual penalty. Unless there are exceptional circumstances warranting some other treatment. The Court takes no pleasure in sending talented and highly skilled individuals to jail. But there are no exceptional circumstances here that would justify another form of penalty.”
[12] Given the number of occasions in which you committed the offending and the amount stolen by you, unless exceptional circumstances exist, a custodial sentence is imposed. Prosecution seeks an imprisonment term with a start point of 4 years imprisonment and refers the Court to Police v Tiatia [2014] sentencing decision. Your counsel seeks leniency in sentencing and asks for a non-custodial sentence. No exceptional circumstances however exist to depart from the Court’s long held approach to sentencing for these cases. A custodial sentence is warranted in keeping with the Court’s sentencing approach and given the facts of your offending.
[13] A 4 year start point for sentence however is too high. This case can be distinguished from Police v Tiatia which though involved a similar amount of money stolen, the offender was a School Principal which made the breach of trust significantly more serious. Secondly, he committed the theft on 36 separate occasions. This case falls between Police v Falevao and Police v Tolova’a, both sentencing authorities referred to in prosecution submissions.

Result:

[14] In sentencing, I apply the totality principles and information S1743/17 as the lead charge with a start point of 2 years and 6 months imprisonment. I deduct 6 months for your prior good character, remorse and the funds repaid; and 5 months for your guilty plea. Accordingly, in respect of information S1743/17 you are convicted and sentenced to 1 year and 7 months imprisonment, less time remanded in custody. In respect of information S1732/17, you are convicted and sentenced to 1 year imprisonment, concurrent. All other charges, you are convicted and sentenced to 3 months imprisonment, concurrent.

JUSTICE CLARKE