Police v Esekia [2021] WSSC 87 (26 May 2021)

IN THE SUPREME COURT OF SAMOA
Police v Esekia [2021] WSSC 87 (26 May 2021)

Case name:	Police v Esekia
Citation:	[2021] WSSC 87
Decision date:	26 May 2021
Parties:	POLICE (Informant) v LAAVASA ESEKIA, female of Vaiala and Tafuna American Samoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On each of the 156 counts of theft as a servant you are convicted and sentenced to four (4) years imprisonment. All sentences to be served concurrently.
Representation:	I. Atoa for the Informant S. Ponifasio for the Defendant
Catchwords:	Theft as a servant – breach of trust – early guilty plea – employee of finance company – significant amount stolen – pre-meditation –huge financial loss (victim company) – apology to victim company – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 161; 165(e).
Cases cited:	Police v Faifua [2015] WSSC 35; Police v Jeffery Peni (13 November 2013); Police v Kaleopa [2015] WSSC 121; Police v Matila Tiatia (22 October 2013) Police v Uili Tialino (4 September 2013).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

LAAVASA ESEKIA female of Vaiala and Tafuna American Samoa

Defendant

Counsel: I. Atoa for Prosecution

S Ponifasio for defendant

Sentence: 26 May 2021

SENTENCING OF JUSTICE ROMA

Charges

1. You appear for sentence on 156 charges of theft as a servant contrary to ss161 & 165(e) Crimes Act 2013. The maximum penalty for each count is ten (10) years imprisonment. You pleaded guilty to all charges on the 21^st September 2020.

Offending

2. At the time of offending you were employed by the complainant company Federal Pacific Finance Ltd as an Assistant Manager, Finance and Administration. As part of your duties, you were to prepare the weekly payroll report reflecting each employee’s pay. The report would then be given to the General Manager for clearance before you post each employee’s pay to his account using internet banking.
3. On various dates between the 6^th July 2016 and 20^th September 2019 on 156 separate occasions whilst preparing the weekly payroll report, you altered your weekly salary by increasing the amount on the report without your employer’s knowledge and authority. You then transferred the respective sums to your personal account.
4. On the 27^th September 2017 you opened a new account under your daughter’s name, and on various dates up to the 4^th September 2019 transferred thereto monies that you stole over and above your normal pay.
5. Your offending was discovered in September 2019 when you took maternity leave and another employee took over your responsibilities. Looking at the table of amounts contained in the summary by prosecution, you began with theft of tens of tala and slowly increased to consistent takings of thousands of tala over a period of 3 years and 2 months. The total amount stolen is $353,034.07.

Aggravating Factors

6. In relation to your offending the aggravating features are:
   • (i) the significant breach of trust given your position as an Assistant Manager;
   • (ii) the significant amount of monies stolen totaling $353,034.07.
   • (iii) these were multiple and continuous offending having occurred on 156 separate occasions over a significant period of 3 years and 2 months;
   • (iv) there was clear planning and premeditation;
   • (v) the impact on the complainant company - apart from its huge financial loss, significant time and resources were committed to the investigation and improvement of the complainant company systems.

Mitigating Factors

7. In mitigation I consider the following which matters are also raised by counsel in her plea in mitigation:
   • (i) your guilty pleas to all charges at the earliest opportunity;
   • (ii) you have apologised and paid the complainant company the sum of $3,000; and
   • (iii) your personal circumstances – From the material before me you are 34 years of age and in a de facto relationship with 2 children. You have had a good level education having graduated with an Arts degree in 2009. You have held a number of good employment positions over the years. You have a medical condition, being a bony mass arising from the second rib on your left chest which according to a medical report dated 16 October 2020 grows overtime and has the possibility of being cancerous. Your condition requires overseas treatment and the court has previously adjourned sentencing for 6 months to allow you the opportunity to seek overseas treatment. Your counsel also tells me that you are at least 20 weeks pregnant and due to give birth in September. You are a first offender.

Discussion

8. It has been the general sentencing practice of the court that theft as a servant cases are imposed custodial sentences except in exceptional and rare circumstances. Prosecution submits that there are no exceptional circumstances to warrant a departure from that practice and a custodial sentence with a starting point of 8 years is appropriate. They rely on the cases of Police v. Faifua [2015] WSSC 35 (11 March 2015); Police v. Kaleopa [2015] WSSC 121 (9 April 2015); Police v. Uili Tialino (4 September 2013), Police v. Matila Tiatia (22 October 2013); and Police v. Jeffery Peni (13 November 2013) all of which I have closely reviewed.
9. Ms Ponifasio on the other hand submits that despite the significant amounts of monies involved, a non-custodial sentence is appropriate. Counsel argues that your medical condition which requires overseas treatment and pregnancy are rare and exceptional circumstances that warrant a departure from the courts’ general practice of handing down deterrent imprisonment sentences in similar cases. I do not agree. There have been many cases where pregnancy and medical conditions have not prevented accused from being given custodial sentences where the circumstances deem appropriate.
10. In your case the significant amounts involved; the offending having continued for over 3 years and 2 months; the interests of the victim; the public interest and the need for deterrence are important considerations which far outweigh that of your medical condition. In saying that I must make allowance for your condition in reduction of sentence.
11. Applying the totality principle I adopt 8 eight years as the appropriate starting point as submitted by prosecution. From that term, I make the following deductions – 9 months for the apology that you rendered and partial restitution in the sum of $3,000; 9 months for your medical condition; and a further 12 months for your personal circumstances including the fact that you have 2 young children and are a first offender. After those deductions, you are left with 5 years and 6 months. I make a final deduction of 18 months for your early guilty pleas to all charges leaving a term of 4 years.

Result

12. On each of the 156 counts of theft as a servant you are convicted and sentenced to four (4) years imprisonment. All sentences to be served concurrently.
    

JUSTICE FEPULEA’I A. ROMA