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Police v Etuina [2021] WSSC 67 (4 October 2021)

IN THE SUPREME COURT OF SAMOA
Police v Etuina & Ors [2021] WSSC 67 (04 October 2021)


Case name:
Police v Etuina & Ors


Citation:
[2021] WSSC 67 (04 October 2021)


Decision date:
04 October 2021


Parties:
POLICE v IELE ETUINA, SETEFANO TAPU & PENE TIMOTEO


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata Keli Tuatagaloa


On appeal from:


Order:
Iele Etuina is convicted and sentenced to two (2) years’ and six (6) months imprisonment less any time in custody.

Defendant Pene Timoteo is convicted and sentenced to two (2) years imprisonment less any time in custody; defendant

Setefano Tapu is convicted and sentenced to two (2) years supervision as follows:

(i) The defendant, Setefano Tapu carry out his two (2) years supervision term working for the victim company under the same conditions that he is currently employed. That is, his salary is to be deducted to pay for the total amount of the stolen goods.


Representation:
E. Tiitii for Prosecution
Defendants appear unrepresented


Catchwords:
Jointly charged – theft as a servant – occurred multiple times


Words and phrases:
“total value of goods stolen a significant amount”


Legislation cited:
Crimes Act 2013, ss. 33, 161, 165(3).


Cases cited:
Police v Logi [2021] WSSC 9.


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


AND:


IELE ETUINA, SETEFANO TAPU & PENE TIMOTEO


Defendants


Counsel: E. Tiitii for Prosecution
Defendants appear unrepresented


Date: 04 October 2021


S E N T E N C E

  1. All three defendants appear for sentencing having been jointly charged on seven counts of theft while employed by the Cost Less Supermarket at Vaitele. The maximum penalty for the offence of theft as a servant is maximum 10 years’ imprisonment.[1]
  2. According to the summary of facts provided by Prosecution, all three defendants worked the night shift from 2pm-10pm and would remove the frozen goods from the victim company’s main freezer and place it inside a basin (faatanoa) outside and then covered it with rubbish to keep it hidden. In the morning, the defendants would place the stolen goods on to the delivery truck that delivered bakery goods to various shops. The defendants would then sell the stolen goods to other shops and split the money amongst themselves.
  3. The offending was carried out on the following dates:
  4. The total value of stolen goods amount to $14,920.00.
  5. All three defendants pleaded guilty to all seven (7) charges of theft as a servant on 30 August 2021. The two defendants, Pene Timoteo and Setefano Tapu, have no previous convictions. The defendant Iele Etuina has a previous conviction.

Discussion.

  1. The most aggravating of the offending is the period or length of time that it was carried out of about six months and the total value of the goods stolen of $14,920.00. This is a significant amount.
  2. It appears that there was a high level of pre-meditation or planning involved by all three defendants. According to the pre-sentence report all three defendants took turns selling the stolen goods to various shops. Their actions indicate a very serious breach of trust causing the employer who provided them with jobs substantial financial loss.
  3. The only mitigating factors would be prior good characters of the defendants and their early guilty pleas plus an apology by the defendants (if any) to the owner of the victim company.
  4. The Prosecution recommends for custodial with a starting point of four years adopted by Nelson J in Police v Logi[2]of similar nature and circumstances of offending and the total amount of goods stolen. I agree with Prosecution as to the starting point and would sentence each defendant individually depending on the mitigating factors applicable to each one:
  5. Iele Etuina has a previous conviction and although it is of a different nature it nevertheless shows that he is not of prior good character. According to the PSR there has been no apology by Iele to the owner of the victim company. The only mitigating factor in his favour is his guilty plea which entitles him to 25% discount amounting to 12 months. I will further deduct six (6) months for the written testimonials provided on his behalf by his church bishop and village mayor. This leaves two (2) years and six (6) months. Iele is convicted and sentenced to two (2) years’ and six (6) months imprisonment less any time in custody.
  6. Pene Timoteo as confirmed by the victim company is still employed there. However, the company says that Pene is denying any involvement with the matter before the Court despite having pleaded guilty and a pre-sentence report that says of their collusion in the carrying out of the offending. As Pene still denies any involvement, the company has not made any deductions to his salary; instead the company has continued to pay his full salary despite the fact that he has pleaded guilty. His continuous denial does not place him in a favourable light; instead it reflects on his character as a dishonest person and a person who is not willing to take responsibility for his behavior. The Court will not give him the benefit that it will give to the defendant, Setefano Tapu. Pene is a first offender and therefore of prior good character. He informed the Court that he has apologized to the owner of the victim company and the Court will give him the benefit of the doubt because he is currently still being employed by the company. Also in his favour is his guilty plea. I will deduct six (6) months for prior good character, further six (6) months for the apology and 12 months for the guilty plea. This leaves two (2) years. The defendant is convicted and sentenced to two (2) years imprisonment less any time in custody.
  7. Setefano Tapu is a first offender and of prior good character further supported by the written testimonials attached to the pre-sentence report. According to the pre-sentence report, Setefano has apologised to the owner of the victim company and is currently still employed by the victim company with deductions to his salary going towards paying for the total amount of the stolen goods. This is affirmative action taken by the victim company to have the total amount of the stolen goods recovered and is also reparation. Furthermore, the willingness to still employ the defendant despite what has happened makes the defendant accountable for his behavior and is also an indication that the victim company has accepted his apology and still trusts the defendant by keeping him employed. The defendant himself has also pleaded guilty indicating he is remorseful for what he has done. I would have applied the same starting point of four (4) years and made the same deductions for Setefano as I did with Pene if I was to impose a custodial sentence. His current circumstances of still being employed by the victim company is (in my view) exceptional circumstances I therefore, convict Setefano and sentence him to two (2) years supervision as follows:

JUSTICE TUATAGALOA

[1] Crimes Act 2013, ss. 161, 165(e) and 33.

[2] Police v Logi [2021] WSSC 9.

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