Police v Vito [2019] WSSC 39 (30 May 2019)

SUPREME COURT OF SAMOA
Police v Vito [2019] WSSC 39

Case name:	Police v Vito
Citation:	[2019] WSSC 39
Decision date:	30 May 2019
Parties:	POLICE v MOANA VITO female of Lotopa.
Sentencing date(s):	30 May 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:	- Convicted and sentenced to 2 years and 10 months imprisonment less time remanded in custody.
Representation:	Q Sauaga for Prosecution G Latu for the Accused
Catchwords:	theft as a servant; trusted employee;
Words and phrases:	employed as main cashier; took money from cash take; conceal theft;
Legislation cited:
Cases cited:	Police v Tiatia [2014] WSSC 149 Police v Faaiuga [2015] WSSC 81
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MOANA VITO female of Lotopa.
Accused

Counsel: Q Sauaga for Prosecution

G Latu for the Accused

Decision: 30 May 2019

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

The Charge:

[1] Moana Vito, you appear for sentence on one charge of theft as a servant that between the 1st August 2017 and the 31st July 2018, you together with your co-defendant stole $42,180.00 in cash from your employer Chan Mow Company Limited. The maximum penalty for the 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, at the time of your offending, you were employed as one of the main cashiers for the Chan Mow Company Limited. You received monies from sales made by customers at the Wholesale branch of Chan Mow Company Limited at Matafele. Together with your co-defendant who was employed as a Finance Officer, you were both employed together by the Chan Mow Company Limited.

[3] According to the Summary of Facts, the Finance Officer was responsible for receiving all cash monies from cashiers including from yourself as well as delivery truck drivers; counting the money received; and banking the money with the ANZ Bank the following day. During the period of your offending, you together with your co-defendant stole money from Chan Mow Company Limited either from your own personal daily taking of cash received, received by the Finance Officer, and also from the delivery trucks. As a result, there was a shortage of daily cash and you together with your co-defendant would each work together to conceal the daily shortage from being detected by using the previous days taking to balance the following day’s banking in order to make up the amount of shortage.

[4] According to the Summary of Facts, every time you took money from your cash take, you informed your co-defendant so that your co-defendant was aware of your cash takings and she could balance the cash given to her with the previous day’s takings. According to the Summary of Facts, you together with your co-defendant had been stealing the money from the company on a number of occasions between the 1st August 2017 and the 31st July 2018. The theft was in various different amounts and you together concealed the shortage of the cash takings to avoid detection. On the 1st August 2018 however, a surprised cash count was carried out by the credit controller and the cash count revealed the shortage of $42,180.00.

The Background of the Accused:

[5] According to your Pre-Sentence Report, you are a 35 year old woman with three children. You grew up at Lotopa and attended school to year 13. You first worked for Chan Mow Company Limited in 2004 for a year and then took up alternative employment. You then returned to work with Chan Mow Company Limited in 2017. No character references were submitted in support of your character. You are however a first offender.

The Victim:

[6] The victim of your offending is Chan Mow Company Limited. According to the Victim Impact Report, you were a trusted employee of the company. The company states that the money taken by you and allegedly by your co-defendant is a lot of money. The company representative says that as a result of the fire in 2016 destroying the company’s warehouse and its content, the company lost a lot of money and is trying to “stay alive”. The company representative complains of the significant number of thefts encountered by their business.

Aggravating Features of the Offending:

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

(i) The serious breach of trust given your position as a cashier;
(ii) Your offending was premeditated, planned and according to you coordinated with your co-accused to conceal the theft;
(iii) That you committed your offending over a period of approximately 11 months which is a long period of time; and
(iv) The amount stolen by you allegedly together with your co-defendant was of $42,180.00 is a large sum of money.

[8] In terms of the mitigating features to your offending, there are none.

[9] In terms of the aggravating features personal to you as an offender, there are none. You are a first offender.

Mitigating Factors as an Offender:

[10] In terms of the mitigating factors personal to you, I take the following into account on sentencing:

(a) Your apology to the company;
(b) Your prior good character; and
(c) Your early guilty plea to the charge.

[11] Both prosecution and your counsel agree that you are to provide assistance to authorities in relation to your co-accused. I will accordingly give you a discount for your assistance to authorities that will be given in future. If after sentencing you do not however give that assistance as you have indicated through counsel, your matter may be referred back to court for re-sentencing.

Discussion:

[12] Moana the amount of money stole by you allegedly together with your co-accused is a significant amount of money. You also made no effort it seems to repay that money to your former employer.

[13] As Justice Nelson 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”.

[14] As I indicated to you, your matter warrants a custodial sentence. This is because of the significant amount of money involved; the lengthy period of time over which you offended; the level of premeditation and planning involved in your actions; and the significant breach of trust involved in your offending. Cashiers are invested with significant trust by their employers and in your case, you breached that trust and allegedly colluded with a fellow employee to steal the money.

[15] Prosecution seeks an imprisonment term with a start point of 7 years imprisonment and refers me to various authorities for lower sums of money stolen with lower start points and in essence submits that as a result of the higher amount stolen in this case, a 7 year start point is warranted. Prosecution however did not refer to the sentencing decision in Police v Faaiuga [2015] WSSC 81 referred to by Mr Latu. In that case involving a finance officer in the victim company stealing $461.196, a start point of 6 ½ years was adopted by Sapolu CJ.

[16] Having regard to the authorities that I have been referred to and the aggravating factors of your offending, I adopt 5 years start point for sentence. I deduct 6 months for your prior good character and 3 months for your apology. I deduct 6 months for assistance to authorities that is to be given by way of giving evidence for the prosecution and from the balance, I deduct 11 months for your guilty plea.

Result:

[17] You are accordingly convicted and sentenced to 2 years and 10 months imprisonment less time remanded in custody.

JUSTICE CLARKE