Police v So'onalole [2019] WSSC 70 (22 February 2019)

IN THE SUPREME COURT OF SAMOA
Police v So’onalole [2019] WSSC 70

Case name:	Police v So’onalole
Citation:	[2019] WSSC 70
Decision date:	22 February 2019
Parties:	POLICE v FEI’A SO’ONALOLE, female of Saina
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 is convicted and sentenced to 18 months’ supervision.
Representation:	L. Sio for Prosecution I. Sapolu for the Accused
Catchwords:	theft as a servant – breach of trust – Government employee – apology – remorseful – previous good character – early guilty plea
Words and phrases:	misappropriation of public funds – offending occurred multiple times
Legislation cited:	Crimes Act 2013 ss. 161; 165(f)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FEI’A SO’ONALOLE female of Saina

Accused

Counsel:
L. Sio for Prosecution
Sapolu for the Accused

Date: 22 February 2019

S E N T E N C E

Before I proceed with sentencing I will first lay out the background as there were some peculiar matters arising that had delayed sentencing.

Background

1. The accused was originally charged with fifty individual charges and on 28 May 2018 the accused through Counsel entered a ‘not guilty’ plea to all charges. The matter was then set for hearing on 10 October 2018.
2. On 10 October 2018 the prosecution filed additional twenty-five individual charges of theft as a servant against the accused. The matter was further adjourned to 12 October 2018 for Counsel for the accused to peruse the additional charges, obtain full instructions and for the accused to enter a plea to the additional charges.
3. On 12 October 2018, Counsel for the accused requested if the Prosecution could file the charges (including the additional) as representative charges. The Prosecution agrees and the matter was further adjourned to 31 October 2018.
4. On 31 October 2018 the seventy five individual charges were withdrawn by the Prosecution and filed five representative charges of theft as a servant. The accused through Counsel vacated her ‘not guilty’ plea entered on 10 October 2018 and entered a plea of ‘guilty’ to the five representative charges. The matter was adjourned to 28 November 2018 for sentencing.
5. On 28 November 2018 Counsel for the accused advised the Court that the accused disputes the total amount of $14,961.50 for all five representative charges. The matter was further adjourned for Counsels for the accused and prosecution to have discussion.
6. On 6 December 2018 both Counsels appeared and informed the Court that no discussions took place and they each maintained their stance as of 28 November 2018. Counsel for the accused then asked for a ‘disputed facts’ hearing given that the accused disputes the amount. The matter was then adjourned to 19 December 2018 for Counsels to make submissions as to whether there should be a disputed facts hearing.
7. On 19 December submissions were heard and decision was adjourned to 18 January 2018. The prosecution was asked to file a Victim Impact Report (VIR) by 21 December 2018.
8. On 18 December, Counsels were asked for a meeting in Chambers. The VIR filed by the Prosecution signed off by the CEO of Ministry of Education has the amount taken by the accused to be about $4,000. The Pre-Sentence Report (PSR) has the accused saying she only took about $3000 - $4,000. These were brought to the attention of the Prosecution who advised that a corrected VIR from CEO of Ministry of Education will be filed. Matter was then adjourned to 8 February 2019. Meanwhile a decision as to whether there should be a disputed facts hearing remains outstanding.
9. I indicated to Counsels that I cannot ignore the PSR where the accused says that she only took about $3000 - $4000 and the VIR which says the amount taken by the accused to be about $4,000. That, a disputed facts hearing in this case will amount to a full hearing.
10. On 8 February 2019 there was still a corrected VIR filed by the prosecution. Prosecution asked to be given time to discuss amount with Counsel for the accused again. Counsel for the accused did not object.
11. On 15 February 2019, prosecution withdrew one representative charge (S1608/18) amounting to $7,400.70. The four remaining charges is totalled $7,450.80. Counsel for the accused did not object and informed the Court that the accused maintains her plea of ‘guilty’ to the four remaining charges. The accused herself was asked if she confirms the advice to the Court by her Counsel and she confirmed. The matter was then adjourned to 22 February 2019 for sentencing. The prosecution was to file an amended summary of facts and sentencing submissions should their position be different from their original submissions filed.

Sentencing

12. The accused is to be sentenced on four representative charges of theft as a servant. The penalty is maximum 10 years’ imprisonment for each offence.^[1]
13. The accused at the time of the offending was employed as a cashier by the Ministry of Education, Sports and Culture. The offending was carried out over a period of four (4) months November & December 2016, January and March 2017. The total amount stolen by the accused is $7,400.70.
14. Over the four-month period, the accused worked as a cashier and would receive cash payments for school fees on behalf of the Ministry. She would then issue receipts but took the money for personal use.
15. A spot check by the Audit Office discovered the misappropriation of public funds by the accused.
16. Prosecution seeks a custodial sentence with a starting point of four (4) years’ imprisonment. A breach of trust is inherent in any theft as a servant offending. The offending did not occur once but multiple times over the four-month period in which Prosecution drew the inference that the offending was pre-meditated. This is not the first time a government employee has stolen from his/her employer. The amount taken is by no means less substantial.
17. Counsel for the accused seeks a non-custodial sentence taking in to account the following:
    • The accused is 34 years’ old, married with six (6) children, four of the children are of school age. The accused in the PSR (Pre-sentence report) says that the money she took was used to pay for their water bills and loan repayments.
    • She has personally apologized to the Chief Executive Officer and is said to express remorse for her actions, is willing and motivated to change.
    • Prior good character; and
    • Guilty plea.
18. The Prosecution has adopted the stance mainly taken by the Court when dealing with theft as a servant cases by imposing custodial sentences. However, there have been cases of the same offending that the Court has imposed non-custodial sentences. These cases are not referred to by the Prosecution (when they should) and make submissions as to why the Court should not consider those cases and that a custodial sentence be imposed instead.
19. I am also mindful that despite the Court taking a harsh stance on imposing imprisonment terms as a measure of deterrence, people are still stealing. We need to consider alternative measures rather than imprisonment, weighing the circumstances of each particular case, the offender him/herself and then consider whether custodial or non-custodial is appropriate.
20. I am also aware of Counsels role in the filing of charges, not obtaining the correct instructions and not fully advising the accused of the charges which have resulted in the delay of sentencing of this matter and the accused having to carry the burden of not knowing as to what will happen over the Christmas period.
21. Each case is to be considered on its own particular circumstances. With this particular case I place emphasis on the accused family situation as a mother of six children, four of them in school and two still at home. She is 34 years’ old and this is the first time she has offended. Although she pleaded not guilty earlier, this was later vacated to guilty to which she maintained until both Counsels had managed to get their act together (so to speak).
22. If I impose a starting point of 4 years’ imprisonment as recommended by the Prosecution and make deductions, I will probably end up with 2 years or less imprisonment. The accused will only get to serve half and then be eligible for parole. If I consider a supervision term for that length the accused serves the full term of supervision and if she re-offends during that time, a breach of her supervision term would result in an imprisonment term separate from any penalty imposed for any re-offending.
23. The Court can under the Community Justice Act imposed a maximum sentence of 2 years’ supervision. In the circumstances of this particular matter and my view that a custodial sentence is not the only measure of deterrence, it is appropriate that a non-custodial sentence be imposed. Being charged and having a recorded conviction are also measures of deterrence.
24. The accused is convicted and sentenced to 18 months’ supervision.

JUSTICE TUATAGALOA

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^[1] Sections 161 & 165(f) Crimes Act 2013.