Police v Saitumua [2019] WSSC 53 (9 August 2019)

THE SUPREME COURT OF SAMOA
Police v Saitumua [2019] WSSC 53

Case name:	Police v Saitumua
Citation:	[2019] WSSC 53
Sentence date:	9 August 2019
Parties:	POLICE (Prosecution) v JASSLISS SAITUMUA aka PEPE male of Satupaitea Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	The accused is convicted of each count of theft as a servant and sentenced to 1 year imprisonment. These are to be served concurrently. Any time he has spent in custody to be deducted
Representation:
Catchwords:	Theft as a servant
Words and phrases:
Legislation cited:	Crimes Act 2013, section 161 (a) Crimes Act 2013, section 165 (e)
Cases cited:	Police v Chadwick [2015] WSSC 15 (5 March 2015) Police v Keti [2015] WSSC 16 (5 March 2015)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JASSLIS SAITUMUA aka PEPE male of Satupaitea
Accused

Counsel:
A Matalasi for Prosecution
Accused Unrepresented

Sentence: 9 August 2019

SENTENCE

The charges

1. The accused appears for sentence on 4 counts of theft as a servant, contrary to s.161(a) and s.165(e) of the Crimes Act 2013, which each carries a maximum penalty of 10 years imprisonment.
2. He pleaded guilty to the offences on 17 June 2019.

The offending

3. According to the Prosecution summary of facts admitted by the accused, the accused was employed by CCK Trading Ltd at Vaitele-Tai. He was responsible for packing bulk roasted and ground coffee to transfer to the retail packaging room. He and 3 other co-defendants are involved in this offending. On 4 occasions in July 2018, he and his co-defendants stole sacks of roasted coffee beans, one of them sold it and they divided the money. The total value of the stolen coffee beans is SAT$7914.00.

The accused

4. According to the pre-sentence report, the accused is 29 years old, is single and lives with his parents at Satufia Satupaitea. He has a Certificate 3 in welding from APTC.
5. His mother said his offending came as a complete shock. She says he is obedient and works hard to support them financially.
6. There are written testimonies from his village mayor, church minister and current employer. He is a Sunday school teacher, is instrumental in his church and village and his family relies on him. He now teaches welding at Uesiliana Vocational Center at Satupaitea since July 2018.
7. The accused is a first offender.

Victim

8. The victim impact report was provided by the Managing Director of CCK Trading Ltd. She says as a result of this offending they have purchased a CCTV system for $5000.00 and have implemented more checks and balances.
9. She says that the accused has been to see them twice but has maintained his innocence.

Aggravating features of the offending

10. A significant aggravating factor is that the accused has breached the trust which was placed in him by his employer. As Sapolu CJ said in Police v Chadwick [2015] WSSC 15 (5 March 2015), cases of theft as a servant always involve a breach of trust by an employee of his/her employer’s trust in him/her. He went onto say that “often the important question is the quality and degree of trust placed by an employer in an employee”. The quality and degree of trust reposed in the offender including the rank is to be considered. In this case, trust was placed in the accused to be responsible for the daily operation of the roasting machine.
11. It is also aggravating that the sum of money involved was significant, being SAT$7941.00 which is a financial loss to the company.
12. This offending was also premeditated. It was carried out 4 times over the period of 1 month.

Mitigating factors

13. I take into account in mitigation the written testimonials of his faifeau, village mayor, current employer and his mother who speak of his valuable contribution to the church, village, family and place of employment.
14. Another mitigating factor in favour of the accused is his early guilty plea to the charges.

Discussion

15. Prosecution is seeking an imprisonment term and to adopt 5 years as the starting point for sentence.
16. Sapolu CJ in Police v Keti [2015] WSSC 16 (5 March 2015) has helpfully set out sentencing guidelines decisions for certain types of fraud including thefts committed by employees in positions of trust given in R v Barrick (1985) 81 Cr App R 78, Lord Chief Justice Lane in delivering the judgment of the English Court of Criminal Appeal stated at pp. 81-82:

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the general punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but as less than $10,000, or thereabouts, terms of imprisonment ranging from the very short up to eighteen months are appropriate (see for example Weston (1980) 2 Cr. App. R (S) 391). Cases involving sums of between about £10,000 and £50,000 will merit a term of about two to three years imprisonment. Where greater sums are involved, for example those over £100,000, then a term of three and half years to four and a half years would be justified (see example the case of Strubell (1982) 4 Cr. App. R. (S) 3000...

“In any case where a plea of guilty is entered however the Court should give the appropriate discount...

“The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including the rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow employees or partners; (ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like...

17. Sapolu CJ goes on to say that the sentencing guidelines set out in R v Barrick were re-set to take account of inflation in the subsequent decision of the English Court of Criminal Appeal in R v Clark (1998) 2 Cr App R (S) 95 where Rose LJ stated:

“The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents respectively of £10,000, £50,000 and £100,000, the figures mentioned. Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 will merit 3 to 4 years. These terms are appropriate for contested cases. Pleas of guilty will attract an appropriate discount. Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for”.

18. This Court has adopted and applied the sentencing guidelines set out in R v Barrick (1985) 81 Cr App R 78, pp 81-82 as re-set in R v Clark (1998) 2 Cr App R (S) 95 on the basis that they are guideline decisions. (see Police v Taala [2005] WSSC 28; Police v Ulupoao [2007] WSSC 21; Police v Iteli [2009] WSSC 12) .
19. I bear in mind the Court’s words in Police v Vala’auina [2009] WSSC 21(6 March 2009) where it was affirmed;

The Courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is not only to deter the offender himself/herself from such future behaviour but also others who may be tempted to follow his/her example.

20. Therefore the approach of this Court has been to send a stern message to the offender and community that theft as a servant has become all too prevalent in Samoa and is a scourge on Samoa’s commercial sector. Accountability, denunciation, deterrence, and protection of the community demands a response from the Court which censures such conduct.
21. Having considered the aggravating features relating to this offending, I find that a custodial sentence is appropriate. There are no exceptional circumstances warranting some other treatment. It is unfortunate given that the accused is such a promising teacher.
22. I will apply the totality principle and I will take 3 years imprisonment as a starting point for sentence. I deduct 12 months for the positive written testimonials, his previous good character and his personal circumstances. I deduct 8 months for his early guilty pleas. That leaves 1 year and 4 months. He has a promising future as a teacher of welding and for that reason I exercise leniency and deduct 4 months.
    

Sentence

1. The accused is convicted of each count of theft as a servant and sentenced to 1 year imprisonment. These are to be served concurrently.
2. Any time he has spent in custody to be deducted.
   

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN