Police v Viliamu [2020] WSSC 16 (21 February 2020)

SUPREME COURT OF SAMOA
Police v Viliamu WSSC 16

Case name:	Police v Viliamu
Citation:	[2020] WSSC 16
Sentence date:	21 February 2020
Parties:	POLICE v PITOAU VILIAMU female of Apolima uta.
File number(s):	S2028/19 – S2099/19, S2100/19 – S2102/19.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On each of the 66 charges of theft as a servant, you are convicted and sentenced to 12 months imprisonment. All sentences are to be served concurrently.
Representation:	Ms A. Matalasi for Prosecution Ms P. Chang for Accused
Catchwords:
Words and phrases:	Theft as a servant
Legislation cited:	Crimes Act 2013 s161 & 165(e)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

PITOAU VILIAMU female of Apolima uta.
Defendant

Counsel: Ms A. Matalasi for Prosecution
Ms P. Chang for Accused

Sentence: 21 February 2020

SENTENCING OF JUSTICE ROMA
Charges

[1] You appear for sentence on sixty six (66) charges of theft as a servant contrary to s161, Crimes Act 2013. The maximum penalty under s165(e) is an imprisonment term of 10 years for each charge. You pleaded guilty to all charges once they were finalised.

Offending

[2] At the material time, you were employed as a front desk officer at Le Vasa Resort (victim company) at Apolima uta. You were responsible for handling reservations and facilitating check ins and check outs. In the same role, you also handled monies received on behalf of the victim company and were responsible for its top up phone at the front desk.

[3] Between May and September 2019 during the course of your employment, you stole digicel phone credits from the victim company without its knowledge or authority.

[4] Specifically on 66 occasions, you transferred credit from the victim company’s top up phone to a number of mobile accounts including yours, your mother’s and a few other acquaintances. The transfers range between $4.00 and $127.00 and add up to a total of $2,264.00.

[5] The victim company became suspicious of the fast usage of its top up phone credit. An internal investigation revealed that transfers were made to your own number almost every day. In October 2019, the matter was reported to Police leading to the present charges against you.

[6] In the pre sentence report, you admit your offending and say that some of the transfers were made to 2 of your work colleagues.

Accused

[7] You are a 22 year old single female of Apolima uta, and the third of five siblings. You have a had a reasonably good education having attained a Certificate of Commerce in your foundation year at NUS. Your first employment opportunity came with the victim company and was terminated as a result of your offending. You have since gained employment with the Samoa Airport Authority as a Data Collection Clerk commencing in January this year.

[8] In the pre sentence report, your father speaks highly of your character and expresses their shock and disappointment with your offending. They remain supportive of you nevertheless. Your Church Minister speaks of you as a humble, committed, responsible and trustworthy individual in the village, the youth group and the church.

[9] Both the pre sentence report and victim impact report confirm that your parents had apologised on your behalf and offered $200.00 in restitution. The money however was not accepted because according to the victim, the matter had already been with police after numerous opportunities were given to you to make payment.

[10] You are a first offender. You have expressed remorse through the Probation Service and your Counsel.

[11] Counsel says that you are prepared to make restitution from the wages of your current employment.

Victim

[12] In a detailed VIR, the victim’s representative identifies the financial impact of your offending as loss of $3,500.00 worth of phone credit. I bear in mind that the charges before the Court involve a total sum that is a lot less. The victim company has changed its policies regarding who is allowed to top up phones. Obviously since your offending, trust has become an issue and main concern for your former employer.

[13] As to restitution, the report says that you were given 3 weeks to make payment. It was only after your offending was reported to Police and the matter came to Court that an apology was rendered by your parents and $200.00 was offered. For reasons contained in the VIR, they did not accept that payment.

[14] The victim says that you showed no remorse when your offending came to light and compares your case to those of other employees who admitted their involvement. They apologised and made payments towards the amounts they took; and avoided being referred to the police. Clearly from the victim company’s point of view, you had the same opportunity to make amends but took it lightly and did not make use of it.

Aggravating Factors

[15] The aggravating factors are:

• (i) Breach of trust – Your responsibilities included the handling of monies and the top up phone from which you transferred varying amounts of credit to several accounts including yours over a 5 months period;
• (ii) Pre meditation – You were well familiar with the front desk operations including the use and monitoring of the top up phone. Your offending was planned and calculated with that in mind and involved numerous and continuous transfers over a long period without detection;
• (iii) Continuous and multiple offending - Your offending involved 66 occasions and continued over a period of 5 months until you were caught. As such the level of culpability on your part was high.
• (iv) Value of the property stolen – The total value of credit being $2,264.00 is not insignificant;
• (v) Impact of offending on the victim referred to above.

Mitigating Factors

[16] The mitigating factors are as follows:

• (i) Guilty Plea at the earliest opportunity when the charges were finalised;
• (ii) Apology rendered on your behalf by your parents;
• (iii) Personal circumstances, expression of remorse, previous good character including the fact that you are a first offender.

Discussion

[17] As a matter of practice unless special circumstances exist, the Court has generally imposed custodial sentences in cases of theft as a servant mainly because of the seriousness of the crime and prevalence of the offending in the community. In Police v. Iaseto [2011] WSSC 150 (4 October 2011) His Honour Nelson, J says of the policy as follows:

• “The Courts sentencing policy for offences of theft as a servant is well known. Invariably the penalties are terms of imprisonment because of the seriousness of the crime and its prevalence in the community ... ”

[18] I also bear in mind the guidelines identified in R v. Barrick (1985) 81 Cr. App. R. 78 in sentencing certain types of fraud cases including thefts committed by employees in positions of trust, and adopted by His Honour Sapolu, CJ in Police v. Ulupoao [2007] WSSC 21 (28 March 2007) and Police v. Keti [2015] WSSC 16 (5 March 2015).

• “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 ...
• “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... ”

[19] In your case, I can find no special circumstances to warrant a departure from the Court’s sentencing practice. The high level of your culpability alone, with your offending occurring on 66 occasions over a period of 5 months warrants a custodial sentence. The other aggravating factors as well as the need for deterrence reinforce the need for a custodial sentence.

[20] Prosecution seeks a starting point of 18 months. They rely on:

• (i) Police v. Taeao (Unreported 10 February 2020) where Tuala Warren, J adopted an 18 months starting point for an accused sentenced on 9 counts of theft that occurred over 3 months; the amount involved was $3,670.00;
• (ii) Police v. Julian Faith Toomata (Unreported 15 November 2019) where Tuala Warren, J adopted a 12 months starting point for an accused who was sentenced on 8 counts of theft of items amounting to a total value of $2,078.30;
• (iii) Police v. Fiamatai [2013] 44 (16 May 2013) where Nelson J adopted a starting point of 18 months for an accused sentenced on one count of stealing $2,000.00 from his employer.

[21] Your Counsel submits that an appropriate starting point is the one adopted in Police v. Julian Faith Toomata (Unreported 15 November 2019) because of the amount involved.

[22] I do not agree. Whilst the sum involved in your case is within the range of those in the above cases, the most distinctive feature of your offending is the significant number of occasions and period of time over which they occurred. For that reason, I am of the view that a higher starting point is warranted.

[23] I find helpful the case of Police v Reupena [2019] WSSC 46 (8 August 2019) involving a cashier accused who on 49 occasions stole monies she received for her personal use. The amounts stolen varied from $7.88 to $246.00 and added to a total $3,627.98. Clarke, J adopted a starting point of 2 years and 3 months.

[24] Coming back to your case, I will apply the totality principle and adopt 2 years as starting point. I deduct 7 months for your early pleas of guilty. I deduct a further 3 months for your personal circumstances, previous good character including the fact that you are a first offender. I deduct a further 2 months for your expression of remorse. The end sentence is 12 months imprisonment.

Penalty

[25] On each of the 66 charges of theft as a servant, you are convicted and sentenced to 12 months imprisonment. All sentences are to be served concurrently.

Thank you, you may stand down.

JUSTICE FEPULEA’I A. ROMA