Police v Bourne [2021] WSSC 88 (26 March 2021)

IN THE SUPREME COURT OF SAMOA
Police v Bourne & Ors [2021] WSSC 88 (26 March 2021)

Case name:	Police v Bourne & Ors
Citation:	[2021] WSSC 88
Decision date:	26 March 2021
Parties:	POLICE (Prosecution) v TELESIA LINA BOURNE (First Defendant); PIO PAEPAE (Second Defendant); ULALIA SULUFAU (Third Defendant); TAMARAAFOLAU BROWN (Fourth Defendant) and MASELA MOANANU MASOE (Fifth Defendant).
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vui Clarence Nelson
On appeal from:
Order:	I am therefore going to impose on you Pio and Tamara and all the other defendants monetary penalties for this matter because I do not consider Probation or Community service of any use or applicable to you. If of course you do not pay these fines you will have to serve out the default imprisonment term. For you then Pio convicted and fined $1000, in addition to that you will pay $100 Court costs, $100 Police costs, $50 Probation Office costs a total of $1,250.00; that is to be paid by close of courts business on Monday, 29th March 2021 in default of payment in full by that time you will serve six (6) months in prison. Tamara you will be convicted and fined $700, in addition to that you will also pay $100 Court costs, $100 Police costs, $50 Probation Office costs; total of $950.00 also payable by close of business on Monday, 29th of March in default you will serve six (6) months in prison. For the defendant Masela convicted and fined $350 also payable by close of business on Monday, 29th of March in default you will serve three (3) months in prison. For the defendant Telesia Bourne you will be convicted and fined $250 payable by the close of business on Monday 29 March in default three (3) months in prison. Lastly the defendant Ulalia convicted and fined $200 also payable by close of business on Monday 29th March in default two (2) months in prison. It is also ordered that any restitution monies held by counsels or the court are to be released to the complainant company forthwith.
Representation:	F. Ioane for Prosecution T. Lei Sam for the First Defendant A. Matalasi on behalf of T. Leavai for the Third Defendant C. Vaai for the Fourth Defendant Second and Fifth Defendants Unrepresented
Catchwords:	Theft as a servant – defrauding activities – fined.
Words and phrases:
Legislation cited:	Sentencing Act 2016, s. 9.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

TELESIA LINA BOURNE, female of Luatuanuu.

First Defendant

A N D:

PIO PAEPAE, male of Ulutogia Aleipata.

Second Defendant

AND:

ULALIA SULUFAU, female of Savalalo and Leulumoega Tuai.

Third Defendant

A N D:

TAMARAAFOLAU BROWN, female of Toomatagi.

Fourth Defendant

A N D:

MASELA MOANANU MASOE, female of Vaitele-uta and Palisi.

Fifth Defendant

Counsel: F Ioane for prosecution
T Lei Sam for first defendant
A Matalasi on behalf of T Leavai for third defendant

C Vaai for fourth defendant
Second and fifth defendants unrepresented

Sentence: 26 March 2021

S E N T E N C E

1. The defendants appear for sentence because they embezzled money from their employer the Samoa Gambling Authority aka Samoa Sports Lotto. They stole different sums at different times but they were all engaged in the business of selling lottery tickets.
2. The defendant Telesia Bourne was a ticket operator like all the other defendants. And the method used by her and the other defendants was that when a customer would come and pay for a ticket for one of the overseas Australian Lotteries the operator would enter the amount of the ticket into the computer system and the machine would print out a receipt/ticket. But before the ticket was fully out of the machine the operator would turn off the machine and then restart it again.
3. Upon restarting the machine would release the ticket and this would be given to the customer as the registered ticket. But the internal mechanism of the machine would automatically cancel the entry because the machine was turned off halfway through the process. Thus the machine operator was able to keep the money the customer paid for the ticket and the customer leave the office thinking they have a legitimate ticket when in reality the computers internal system had noted it as cancelled.
4. Using this kind of modus operandi or a similar method the defendants were able to engage in their business of defrauding the Samoa Gambling Authority of money. Some of these defendants did it over a lengthy period of time some did it over a short period.
5. In this way they were able to steal funds. Thus Telesia Bourne stole $500.60 over a six-month period from 29 January 2020 to 24 June 2020. She faces five (5) counts of theft as a servant.
6. The impact of the defendants offending on the activities of the Gambling Authority is detailed in the Victim Impact Report filed. That report states that in addition to over $9,000.00 misappropriated by the defendants there was other impact from the offending.
7. The Report talks about the loss of confidence in the products of the Samoa Sports Lotto and people being worried about being the victims of fraud causing a downturn in sales. The Authority also had to review and update their system to ensure this kind of thing does not happen again as well as install cameras at considerable cost. The defendants offending also “severely affected our reputation with the loss of trust and confidence in our company and our product” and the Victim Impact Report goes on to say the staff were targeted and subject to ridicule and criticism from the public and accused of stealing. There is no question that these are the consequences of what you people did and these consequences are serious.
8. In relation to the defendant Pio Paepae he too was employed as an operator and he too using the same kind of system as Telesia was able to steal a larger amount of money namely $2,388.80. He did this over the nine-month period from 29 August 2019 to 24 June 2020. He faces ten (10) counts of theft as a servant.
9. The defendant Ulalia Sulufau also employed as a ticket operator stole $440.00 over the one month 15 May 2020 to 11 June 2020. She faces five (5) counts of theft as a servant.
10. Ticket operator Tamara Brown stole $2,467.40 over the nine months from 15 August 2019 to 22 June 2020. She faces seven (7) counts of theft as a servant.
11. Final defendant Masela Moananu also a ticket operator stole $718.20 over the seven months between 12 December 2019 and 27 June 2020.
12. All defendants are first offenders with a good background of service to their families and community as outlined in their pre-sentence reports from the Probation Office. All have made the necessary apologies to the Samoa Gambling Authority and have made full restitution of the monies they took. Some defendants are represented by counsel and I accept that all are remorseful as conveyed in their pre-sentence reports and through the pleas made by counsel representing them.
13. In terms of the criminal culpability of this group I will arrange the defendants in the following order. The two most serious offenders would be Pio Paepae and Tamara Brown. Pio Paepae stole a significant amount of money over a long period of time and faces the most number of charges. Similarly Tamara Brown also stole a significant amount money over a lengthy period of time and faces a large number of charges. The penalty on these two defendants must reflect the culpability of their crimes.
14. The third ranked defendant would be Masela Moananu who stole around $700 over seven months and faces seven (7) counts. And the last two defendants would be Telesia who stole around $500 over a six-month period and Ulalia who stole about $400 in the course of one month.
15. As noted because their culpability is different they will be given different sentences designed to reflect their individual offending and their particular circumstances. But all the sentences must hold the defendant accountable for their action and must denounce their conduct as unacceptable and must deter them and others who may be thinking of doing this sort of thing. I will deal firstly with Pio and Tamara.
16. The court has considered carefully whether imprisonment should be imposed on you two. Because you stole on more than one occasion and you did this over a lengthy period of time albeit you only stole in small amounts. The prosecution and the Police are saying you should be sent to prison because of these factors. And also because your breach of trust was great and because the offending was obviously pre-meditated. There is much force in that argument by the prosecution.
17. However I note that section 9 of the Sentencing Act 2016 mandates the court to also take into consideration “in sentencing or otherwise dealing with a defendant” the issue of restitution or an offer to make restitution and reparation.
18. The court is impressed by your willingness to effect full restitution which both of you have done in addition to your original apology to the company post-offending. That is some indication of your true remorse for your actions and your acceptance that what you did was totally wrong and reflects an attempt by you to try and make right that wrong. I also note the victim company’s full acceptance of your apology as well as the restitution as reflected in the documentation submitted to the court.
19. I am therefore going to impose on you Pio and Tamara and all the other defendants monetary penalties for this matter because I do not consider Probation or Community service of any use or applicable to you. If of course you do not pay these fines you will have to serve out the default imprisonment term.
20. For you then Pio convicted and fined $1000, in addition to that you will pay $100 Court costs, $100 Police costs, $50 Probation Office costs a total of $1,250.00; that is to be paid by close of courts business on Monday, 29^th March 2021 in default of payment in full by that time you will serve six (6) months in prison.
21. Tamara you will be convicted and fined $700, in addition to that you will also pay $100 Court costs, $100 Police costs, $50 Probation Office costs; total of $950.00 also payable by close of business on Monday, 29^th of March in default you will serve six (6) months in prison.
22. For the defendant Masela convicted and fined $350 also payable by close of business on Monday, 29^th of March in default you will serve three (3) months in prison.
23. For the defendant Telesia Bourne you will be convicted and fined $250 payable by the close of business on Monday 29 March in default three (3) months in prison.
24. Lastly the defendant Ulalia convicted and fined $200 also payable by close of business on Monday 29^th March in default two (2) months in prison.
25. It is also ordered that any restitution monies held by counsels or the court are to be released to the complainant company forthwith.
26. O le upu mulimuli a le Fa'amasinoga o lena ua fa’asala tupe le tou solitulafono. A’o le fa’asalaga lena e mo le aso ma tulaga fa’apitoa o le tou mataupu. A toe molia mai seisi o outou i luma o le Fa'amasinoga i ituaiga mataupu fa’apenei, sau le tagata ma amo mai lona fala ma lona aluga aua e ese a le fa’aiuga e oo iai. Ua tou malamalama i tulaga ia? (Defendants indicated they understood).

JUSTICE NELSON