Police v Faatoia [2022] WSSC 11 (21 June 2022)

IN THE SUPREME COURT OF SAMOA
Police v Faatoia [2022] WSSC 11 (21 June 2022)

Case name:	Police v Faatoia
Citation:	[2022] WSSC 11
Decision date:	21 June 2022
Parties:	POLICE (Prosecution) v FAAFOI MILA FAATOIA, male of Malololelei & Nofoalii (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	On the charge of theft as a servant, you are convicted and sentenced to eight months’ imprisonment. Less any time remanded in custody.
Representation:	V. Faasii for Prosecution Defendant appears in Person
Catchwords:	Theft as a servant – security guard for victim company – gross breach of trust – remorseful – apology carried out – of previous good character – early guilty plea – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Police v Fiamatai [2018] WSSC 101 (7 September 2018); Police v Iteli [2009] WSSC 12 (23 February 2009); Police v Lefe’e [2013] WSSC 53 (8 July 2013); Police v Oloapu [2015] WSSC 232 (20 July 2015); Police v Poasi [2011] WSSC 31 (28 February 2011); Police v Sooalo [2020] WSSC 17 (12 February 2020); Police v Taase [2012] WSSC 54 (2 April 2012); Police v Uli [2018] WSSC 42 (2 March 2018); Police v Valaauina [2009] WSSC 21 (6 March 2009).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FAAFOI MILA FAATOIA, male of Malololelei & Nofoalii

Defendant

Counsel: V. Faasii for Prosecution
Defendant appears in Person

Date: 21 June 2022

S E N T E N C E

1. Faafoi, you appear for sentence on one charge of theft as a servant carrying a maximum penalty of up to 10 years’ imprisonment. According to the Prosecution’s summary of facts accepted by you, at the time of your offending you were employed as a security officer at the Tanoa Hotel. You had commenced employment with the Tanoa Hotel on the 04^th July 2020.
2. Between the 04^th June and the 26^th of June 2021 at Sogi you were working at the hotel. Between those dates you stole the following property from the hotel premises at Sogi without authority:
   • (i) One Jaguar console mixer valued at SAT$1513.76.
   • (ii) One amplifier valued at SAT$3165.14.
3. You then sold the mixer to your cousin who is a disk jockey for the sum of SAT$150. The total value of the property stolen by you is SAT$4,678.90.
4. You are a 39 year old male of Malololelei and Nofoalii. You grew up in American Samoa and you completed school to Year 8.
5. You have worked as a chef in various restaurants including McDonalds. In July 2020, you were employed by the Tanoa Tusitala Hotel as a security guard. In 2021, you were terminated for this offending.
6. You have positive character references from the President of your Church; there is also a medical report from your General Practitioner referring to your diabetic condition.
7. The victim of your offending is the Tanoa Tusitala Hotel. You have apologised to the General Manager to the hotel for your theft and your apology has been accepted. The General Manager told the Probation Service that he had no intention for you to be charged and he seeks the Court’s leniency when passing sentence. Tanoa Hotel has provided an e-mail to Prosecution asking for this matter to be withdrawn as it has been sorted out with you.
8. In terms of the aggravating features of your offending they are as follows:
   • (i) Gross breach of trust;
   • (ii) You committed your offending as a security guard on the same premises that you were employed to protect; and
   • (iii) The value of the good stole by you, with by Samoan standards is not a small amount.^[1]
9. In terms of the mitigating features to your offending, there are none. In terms of the aggravating features personal to you as an offender there are also none.
10. The mitigating factors that I accept as personal to you and I take into account for sentencing are as follows:
    • (i) Your personal circumstances including your diabetic condition;
    • (ii) The views of the victim seeking withdrawal of the charge. As an experienced trading business, I accept that no improper pressure has been placed by you on the victim. The victim’s appeal for leniency is a relevant mitigating factor I take into account in your case;
    • (iii) The remorse including the admission of theft to your employer shown in the pre-sentence report as well as your apology;
    • (iv) Your prior good character; and
    • (v) Early guilty plea.
11. Faafoi you appear for sentencing on the charge of theft as a servant. This is a highly prevalent offence in Samoa. You held a position of significant trust within the Tanoa Tusitala Hotel. You committed a serious breach of that trust because the reason you were employed by Tanoa Tusitala Hotel as a security guard is to protect the hotel from this and other types of offending. You however became the thief. You then went and on sold one of the items that you stole to your cousin.
12. The Court’s approach to theft as a servant is clear. In Police v Valaauina^[2], Nelson J stated:
    • “The courts attitude to thefts as a servant is well documented and should be well known to the public by now. Because of the seriousness and because of the prevalence of such offending usually a penalty of imprisonment is imposed. The only time that it is not imposed is if there are exceptional circumstances warranting some other treatment. The reason for such penalties is to not only to deter the offender himself/herself from such future behaviour but also others who may be tempted to follow his/her example.”
13. Where thefts committed by employees who are security guards, the Court’s approach is very clear. If a security guard steals from his or her employer they run the real risk of imprisonment. This is demonstrated in a line of sentencing authorities of the Supreme Court involving security guards not referred to by Prosecution in their submissions.^[3]
14. In each of these cases, a custodial sentence was imposed by the Court. In Police v Taase involving the theft of goods valued at $1,402.00, a starting point of 12 months’ imprisonment was adopted. In Police v Sooalo involving the theft of goods valued at $4000, an amount similar to your case, an 18 month imprisonment start point was adopted. In Police v Poasi involving the theft of goods valued at $4000, an end sentence of 12 months’ imprisonment was imposed.
15. In your case while I accept that you have a medical condition, the condition is not an exceptional circumstance such as to warrant a non-custodial sentence. As counsel for the Prosecution submitted, the Prison Service is able to provide the medical care for your diabetes. However, I will allow a nominal deduction for this in terms of mitigating factors.
16. In Police v Sooalo, Roma J adopted an 18 month start point for sentence. I accept that sentencing starting point as appropriate in your case. From that start point I deduct one month for your personal circumstances which includes your medical condition; three months for your remorse, apology and early admission to the employer; two months for your prior good character; one month for the view of the victim; and three months for your early guilty plea leaving an end sentence of eight months’ imprisonment.
17. Accordingly, on the charge of theft as a servant you are convicted and sentenced to eight months’ imprisonment. Less any time remanded in custody.
    

JUSTICE CLARKE

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^[1] see: Police v Iteli [2009] WSSC 12 (23 February 2009).
^[2] Police v Valaauina [2009] WSSC 21 (6 March 2009).
^[3] see Police v Poasi [2011] WSSC 31 (28 February 2011); Police v Taase [2012] WSSC 54 (2 April 2012); Police v Lefe’e [2013] WSSC 53 (8 July 2013); Police v Oloapu [2015] WSSC 232 (20 July 2015); Police v Uli [2018] WSSC 42 (2 March 2018); Police v Fiamatai [2018] WSSC 101 (7 September 2018); and Police v Sooalo [2020] WSSC 17 (12 February 2020).