Police v Salanoa [2020] WSSC 74 (5 November 2020)

SUPREME COURT OF SAMOA
Police v Salanoa [2020] WSSC 74

Case name:	Police v Salanoa
Citation:	[2020] WSSC 74
Decision date:	5 November 2020
Parties:	POLICE v AITOGI IAKOPO SALANOA a.k.a AITOGI KELEMETE, female of Sa’asa’ai Savaii and Aleisa.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):
On appeal from:
Order:	- Convicted and sentenced to 3 years 6 months imprisonment less any time remanded in custody.
Representation:	A Matalasi for Prosecution A Lesa for the Accused
Catchwords:	aggravating features – forgery – theft as a servant –mitigating factors – starting point for sentence – sentence
Words and phrases:
Legislation cited:
Cases cited:	Police v Brown [2019] WSSC 66 Police v Faaiuga [2015 WSSC 81] Police v Samau [2010] WSSC 35 Police v Tiatia [2014] WSSC 149 Police v Wilson [2015] WSSC 5
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

A N D

AITOGI IAKOPO SALANOA a.k.a AITOGI KELEMETE, female of
Sa’asa’ai Savaii and Aleisa.
Accused

Counsels:
A Matalasi for Prosecution
A Lesa for the Accused

Sentence: 5 November 2019

SENTENCE

The Charges:

Aitogi, you appear for sentence on 11 charges of theft as a servant and 8 charges of forgery.

The Offending:

According to the Summary of Facts accepted by you through your counsel, you were employed by the Bank South Pacific (‘BSP’) as the Salelologa Branch Manager. Between October 2019 and March 2020, you created 8 new accounts with your employer under false names and using those false names, made 8 separate loan applications. You used the false documents for fictitious customers to apply for those loans.

The false applications were lodged with BSP in accordance with its usual processes, cleared and approved. You then withdrew the loan money. The “loan amounts” varied between $12,000.00 and $30,000.00. The total amount stolen by you through this elaborate scheme was $175,000.00.

In May of this year, you then began to steal from your employer’s ATMs. On 3 separate occasions, you went to the BSP ATMs and stole cash from those machines. The amounts stolen by you varied between $38,410.00 and $75,000.00. The total amount stolen by you from the ATMs was $183,940.00. To hide your stealing, after you stole that money, you then entered incorrect figures on the cash count sheets to match what was inputted into the machines so that the ATMs were ‘balanced’.

In total, you stole $358,940.00.

Background of the Accused:

You are a 41-year-old woman. You are married with five (5) children.

According to your Pre-Sentence Report (PSR), you were born in Samoa and moved to New Zealand in 1988 with your family when your father secured work there. You attended school in New Zealand. Through hard work, you went to Victoria University and graduated with a Bachelor of Arts majoring in political science and criminology. You held various good jobs in New Zealand and in 2009, moved with your husband and children to Brisbane. In Brisbane, you worked at the Suncorp Bank where you held good positions, were promoted and had the opportunity to also work in India. In 2013, you decided to move back to Samoa briefly, returned to Brisbane and moved back permanently in 2015. You began working at BSP in 2016 and on the 21^st February 2018, you were appointed branch manager for Savaii.

You have positive character references in support of your character from your Church Bishop, friends and others. All references convey your deep remorse for your offending.

The Victim:

The victim is the Bank South Pacific. According to the PSR, you have apologized to the BSP Bank Manager as well as to your former Supervisor, Shirley Greed. You have made efforts to repay the monies stolen by you. The BSP Bank Manager confirms that you and your family have repaid $172,570.17. The BSP Country Head asks for leniency in sentencing and that you have suffered enough humiliation and backlash.

Aggravating Features of the Offending:

The following are the aggravating features of your offending are:

The significant breach of trust in your offending. You held a senior executive position within BSP as the Salelologa Branch Manager;

Your offending was highly premeditated and calculated. You employed a very elaborate scheme to steal from the BSP and then hide your actions;

It involved multiple offending over a period of approximately 9 months;

The amount of money stolen by you was very large by Samoan standards; and

The impact of your offending on the victim as shown in the VIR.

There are no mitigating features in respect of your offending. There are also no aggravating factors personal to you as an offender, you are a first offender.

Mitigating Factors personal to the Offender:

In terms of the mitigating factors personal to you as an offender, these are the factors that I take into account:

Your prior good character. You are 41 years of age and you have not been before the Court before;

Your genuine remorse as noted in the Pre-Sentence Report and your references;

The restitution paid; and

Your guilty plea.

Discussion:

Aitogi, in all the material placed before the Court, you have had a very good upbringing, the love and support of your family and the opportunity of a University education. You have worked at senior levels in Australia and New Zealand and were promoted in the various jobs you had in those countries. You are a capable person with ability to work at a high level, as demonstrated by your work experience overseas.

You however appear today for sentencing for theft as a servant which is one of the very prevalent offences that comes before the Courts. Your offending however stands out because of the amount of money that you stole from your former employer.

In your PSR, you explain that your offending was driven by financial issues around the construction of your home at Aleisa and the theft and burglary of your building materials from that project. That is no excuse for what you did. As an alleged victim of theft, you do not then become a thief yourself to make up for what you claim was stolen from you.

In committing your offending, you applied yourself very diligently to steal from the BSP and then hide that stealing. In terms of the false loans documents, you used your knowledge of and access to the Bank’s lending system, documents and processes to take the time to complete those false applications, submit those and follow that through to the point of collecting the “loan money.” When you stole from the ATMs, you also were methodical and diligent in the method you used to steal and then used your knowledge of the Bank’s systems to hide those thefts. You were highly calculated and considered in your actions. You also would have known that what you were doing was wrong and a serious crime yet you took that risk. For that, you appear here today.

The Court has been very clear when in terms of sentencing for theft as a servant. 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 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”.

There are no exceptional circumstances in your case. You stole $358,940.00. You did so on a number of occasions in a highly calculated and considered way. There are also no personal circumstances such as to make your case exceptional. A custodial sentence is appropriate.

Prosecution seeks a sentence start point of 8 years imprisonment. Your counsel seeks a start point of 7 years imprisonment.

I have referred to sentencing submissions by both counsel. I have also referred to Police v Faaiuga [2015 WSSC 81] involving a finance officer and the victim company stealing $461,196.00 a start point of 6 ½ years was adopted. In Police v Brown [2019] WSSC 66 (14 November 2019) involving the theft of $118,991.17 by the Loan Payments Receiver, a start point of 6 ½ years imprisonment was adopted. I have also referred to Police v Samau [2010] WSSC 35 involving the theft of approximately $134,000.00 and Police v Wilson [2015] WSSC 5 involving the theft of $228,390.12 where a start point of 7 years imprisonment adopted.

In my respectful view, whilst the amount of money stolen in Samau and Wilson are less, Police v Wilson can be distinguished because of the significant number of transactions involved. Similarly, in Police v Samau, a serious aggravating factor was the betrayal of trust by him as a lawyer and an officer of the Court.

In my view, given the significant amount stolen by you and your senior managerial role as the Salelologa Branch Manager, on a totality basis, the appropriate start point for sentence is 7 years imprisonment adopting charge 11 of the Charging Document as the lead charge. From that start point, I deduct 8 months for your prior good character and 8 months for your genuine remorse and apology. For the significant restitution paid by you, I deduct 12 months. From the balance, I deduct 14 months for your early guilty plea leaving an end sentence of 3 years and 6 months imprisonment.

Result

Accordingly, in respect of charge [11] on a totality basis, you are convicted and sentenced to 3 years 6 months imprisonment less any time remanded in custody.

In respect of charge [10], convicted and sentenced to 2 years and 5 months imprisonment. Charge [9], 2 years imprisonment. Charges [1] to [7] inclusive, convicted and sentenced to 1 year 9 months imprisonment on each charge and on charge [8], 12 months imprisonment. On the remaining charges, convicted and sentenced to 18 months imprisonment. All sentences are to be served concurrently.

JUSTICE CLARKE