Police v Lelevaga [2019] WSSC 82 (21 August 2019)

IN THE SUPREME COURT OF SAMOA
Police v Lelevaga [2019] WSSC 82

Case name:	Police v Lelevaga
Citation:	[2019] WSSC 82
Decision date:	21 August 2019
Parties:	POLICE (Informant) and LULU FETULIA’I LELEVAGA male of Aleisa and Iva, Savaii (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:	In the circumstances of this particular matter the accused is convicted and sentenced to pay a monetary fine of $500 plus the following costs of $300 to the prosecution and $200 to probation. The monetary fine and costs to be paid by Friday, 23 August 2019 by 1pm in default 8 weeks’ imprisonment.
Representation:	V. Faasii for Prosecution Accused unrepresented
Catchwords:	theft as a servant – breach of trust – pre-meditation – significant amount stolen – apology – paid back large portion of amount
Words and phrases:
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:

LULU FETULIA’I LELEVAGA male of Aleisa and Iva, Savaii

Accused

Counsel: V. Faasii for Prosecution
Accused unrepresented

Date: 21 August 2019

S E N T E N C E

1. The accused is to be sentenced on one count of theft as a servant which penalty is maximum 10 years’ imprisonment for each offence.^[1]
2. The accused at the time of the offending was employed by the Le Vai Company. The summary of facts says that the accused stole cash in the amount of $1,471.20.
3. The summary of facts prepared by the prosecution was read out and confirmed by the accused. The summary of facts says:
   • The accused was responsible for the delivery of water bottles to shops. On Saturday, 22 June 2019 the accused went with the driver to do the deliveries to certain shops from Faleula to Motootua. At the end of the deliveries the accused took the cash received from the deliveries or sales of water bottles and went to his family in Savaii.
4. The accused excuse in the Pre-Sentence Report (PSR) for his offending was because the owner or his boss was insulting and unpleasant when she reprimanded him on that morning before he went to do the deliveries. He further says in the PSR that the owner treats the employees appallingly and pays them low wages.
5. Prosecution seeks a custodial sentence of six months’ imprisonment noting the following as aggravating factors of this offending:
   • Breach of Trust;
   • There was an element of premeditation in that the accused deliberately took the bag with the monies inside;
   • Amount stolen is significant;
   • The victim company was short staffed when the accused was terminated and the amount stolen financially impacted on the company.
6. A breach of trust is inherent in any theft as a servant offending. The offending in my view is more opportunistic than premeditated. The accused had the money collected at the time and he took it. There is no evidence suggesting that the accused had been planning to take the money from the deliveries of this day, Saturday, 22 June 2019. If there is any premeditation it is very minimal. It has also been confirmed by the owner in the PSR that the accused has apologized and had repaid $1,200 of the $1,471.20 he took.
7. The accused is 25 years old, a first offender and has pleaded guilty to the offence he is charged with. There are written testimonials provided that speaks to the accused good character. There is also a confirmation letter from the Samoa Shipping Services of the accused gaining employment on a Mediterranean cruise ship which he is to depart on 30^th August 2019. Opportunities like this for our young people are few and apart and when available must be utilized. It is good for the country and especially so for the new recruit and his family financially.
8. 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.
9. 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.
10. There are also cases where the circumstances peculiar to that case does not warrant a custodial sentence. This is one of those cases. I place emphasis on the accused age, his first offender status, the fact that he has pleaded guilty; that he has repaid the majority of the money he took and apologized to the owner of the company he stole from. The circumstances of his offending also show a low culpability level on the accused part.
11. Having a recorded conviction is a penalty in itself. In the circumstances of this particular matter the accused is convicted and sentenced to pay a monetary fine of $500 plus the following costs of $300 to the prosecution and $200 to probation. The monetary fine and costs to be paid by Friday, 23 August 2019 by 1pm in default 8 weeks’ imprisonment.
    

JUSTICE TUATAGALOA

---

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