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Police v Polaia [2023] WSSC 49 (21 July 2023)

IN THE SUPREME COURT OF SAMOA
Police v Polaia [2023] WSSC 49 (21 July 2023)


Case name:
Police v Polaia


Citation:


Decision date:
21 July 2023


Parties:
POLICE (Prosecution) v TAOFEGAUIA’I POLAIA, female of Vavau & Malaemalu (Defendant)


Hearing date(s):
15th, 16th, 17th March; 24th, 25th, 26th April 2023


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Tuatagaloa


On appeal from:


Order:
The defendant is convicted and sentenced as follows:

(i) Theft as a Servant (x11) – 13 months’ imprisonment for each count;
(ii) Forgery (x4) – 13 months’ imprisonment for each count;
(iii) All are sentences are to be served concurrently, less any time in custody.

The start date of sentence is deferred for three (3) months to 25 October 2023. The defendant must turn herself in to the Prisons Authority on that day by 12noon; failing that the Police will attend to her home and take her to prison.

The defendant will be entitled to apply for parole when she has served half of her sentence.


Representation:
T. Sasagi for Prosecution
T. Toailoa for the Defendant


Catchwords:
Theft as a servant – forgery – using a forged document – occurred multiple times – held a managerial position – significant breach of trust – pre-meditated – first offender – custodial sentence.


Words and phrases:
“if circumstance of defendant being pregnant shall warrant Court to not give a custodial sentence”.


Legislation cited:
Crimes Act 2013, ss. 161; 165(e); 194(2); 195(1)(c)’
Sentencing Act 2016, s. 63.


Cases cited:
Fuimaono v Attorney General [2021] WSCA 13;
Police v Faafaga [2014] WSSC 114;
Police v Suataai [2021] WSSC 64;
Taulapapa v Police [2002] WSSC 24.


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


AND:


TAOFEGAUIA’I POLAIA, female of Vavau & Malaemalu.


Defendant


Counsel: T Sasagi for Prosecution
T Toailoa for Defendant


Sentence: 21 July 2023


SENTENCING OF TUATAGALOA J

The charges

  1. The defendant, Taofegauiai Polaia (“Gaui”) was originally charged with a total of thirty-two (32) charges:
  2. The Prosecution withdrew the following charges:
  3. The defendant pleaded guilty to the following:
  4. The defendant maintained her ‘not guilty’ pleas to the remaining charges of nine (9) counts of theft as a servant, three (3) counts of forgery and three (3) counts of using a forged document. The defendant was found guilty on eight (8) counts of theft as a servant and two (2) counts of forgery.
  5. The defendant now appears for sentence on the following offences:
  6. The total value of money including the value of the brush cutter stolen by the defendant amounts to $2839.35.

Background

  1. The background of this matter is canvassed in (my) decision dated 9th June 2023. In summary, the defendant, Gaui was an employee of the Seabreeze Resort. In December 2019 the owners of the Resort, Chris and Wendy Booth, for medical reasons went to Australia where they are originally from until 21 September 2021 when borders re-opened.
  2. On 20 March 2020 Samoa’s borders were closed as was the rest of the world due to the spread of the COVID19 pandemic and during this time the Resort was closed to guests. The owners of the Resort only kept about 10 paying staff including the defendant for daily maintenance of the Resort solely managed by the defendant since 14 August 2020.
  3. The defendant had sole custody of the cheque book to a working account monitored by the owners who transferred money into the account from Australia to pay for the staff wages including the defendant and to provide for their meals once a day on site. The defendant was also the only one who had the keys to the office, security safe and to the storeroom.
  4. The charges relating to the defendant was during the time she was sole Manager of the Resort from 23 March 2020 to 16 July 2021.

The Submissions

  1. The prosecution seeks for a custodial sentence with a starting point of 3 years’ imprisonment and submits the following to be the aggravating factors; (i) extent of the offending that it was committed over a period of more than 12 months; (ii) the offending was pre-meditated in that the defendant has inside knowledge and experience of handling the accounts and was able to manipulate it; (iii) significant breach of trust in the fact that the defendant was sole Manager and the owners who were overseas at the time completely put their trust in her to look after the Resort and all its properties and even gave her authority to a working account using a cheque book; (iv) impact of the offending on the owners.
  2. The prosecution refers the Court to various sentencing authorities of similar offending and circumstances with similar amounts of money involved as the present matter where custodial sentences were imposed. The prosecution further submits that there are no exceptional circumstances in the present matter to warrant a departure of the Court from its policy of imposing a custodial sentence on offences of theft as a servant.
  3. Counsel for the defendant on the other hand submits that an appropriate starting point is twelve (12) months imprisonment and says that the authorities referred to by prosecution to justify their starting point of three (3) years are distinguished from the present matter on their facts as follows:
  4. Counsel for the defendant further submitted for the Court not to take into account the emphasis placed by the prosecution as impact of the offending on the neglect of the Resort resulting in the owners taking out a loan facility of 1.75million dollars to renovate and upgrade the Resort. Counsel submits that it would be unfair to hold the defendant responsible for any impact beyond what the defendant was charged. I agree. The defendant is to be sentenced for the offences she was charged and found guilty or had pleaded guilty to.
  5. Counsel for the defendant submits the following as mitigation for the Court to consider in favour of the defendant:

Discussion

  1. A breach of trust is inherent in any theft as a servant offending. The offending did not occur once but multiple times between 23 March 2020 and 16 July 2021 in which Prosecution drew the inference that the offending was pre-meditated. The offending of forgery corresponds with four offences of the theft as a servant. It is committed always with an ulterior motive which is usually of a criminal nature. In the present case, the defendant committed forgery to facilitate the thefts. Inherent in the offending of forgery is the element of deceit. Deceit implies planning or premeditation on the part of the defendant. I find the defendant’s offending to be both pre-meditated and opportunistic in that the defendant had plenty of opportunity to carry out the offending as often as she wanted for she was in full control of the management of the Resort and access to the working account.
  2. Each case is to be considered on its own particular circumstances. The culpability level of the defendant is to be assessed on the following – the amount of money or the value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued, the degree of trust given to the defendant especially in a position of financial trust.[7] Although, the total amount involved is less than $5000 and may be viewed as not substantial but the offending must to be considered in the circumstances it took place - the time or the period it was committed was during COVID; the offending was committed over a period of more than 12 months while the owners were in Australia; the defendant was fully entrusted by the owners to have full management of the Resort and with access to a working account.
  3. In Police v Faafaga (supra) Counsel for the defendant distinguished this case based on the total amount stolen and not the overall circumstances of the offending. The case of Police v Suataai (supra) is similar to the present matter in the following circumstances – the total amount of money involved, the offences were those of theft as a servant and forgery, the offending happened over a period of time with the present being over a longer period. Counsel for the defendant says that the level of culpability of the defendant in Suataai being a bank employee is more severe than the defendant in the present matter. I disagree.
  4. The business community struggled throughout the COVID period especially when borders were shut. Many lost jobs as their employers could no longer afford to pay them. A number of Seabreeze were fortunate as the defendant and nine or ten employees were kept on by the owners and still able to earn money during such a difficult time. There is the evidence of the wife (owner) that they had to find employment in Australia during COVID19 to earn money to keep the Resort afloat, including paying for staff and for maintenance to the Resort at a time the Resort was not generating income as it was closed to guests and yet, the defendant abused her position and the trust of the owners took advantage of the situation and stole from the owners. The amount therefore is considered to be substantial because the offending had taken place during COVID when the Resort was closed down and not earning. I also place great weight on the level of trust given by the owners to the defendant. I find that there is a high degree of culpability of the defendant.
  5. The impact of the offending by the defendant cannot amount to what is claimed by the owners in the Victim Impact Report. There was no evidence at all to say of any damage caused by the defendant to the property and she was not charged with the offence of intentional damage. Furthermore, any admissions alleged to have been said by the defendant to the owners mentioned in the VIR that was not part of the evidence or was not proven is not taken into account in sentencing the defendant. The actions that are being sanctioned by the court are those that the defendant was charged and found guilty of or have pleaded guilty to a total amount of $2839.35.
  6. I accept the following as mitigating factors in favour of the defendant – her personal circumstances of having two young children (the youngest being 1 year old), she is currently pregnant due to give birth any time soon and she is a young mother at 29 years old. I accept that she is genuinely remorseful for her actions and has attempted reconciliation with the owners of the Resort by way of apology but the owners refused to meet with her. The refusal by the owners is understandable given the trust they placed in the defendant and how they have treated her but the defendant has repaid that trust with what she did.
  7. Defence Counsel has brought to the Court’s attention the status of the defendant that, she is currently pregnant due to give birth on or around 21 July 2023 +/- 14 days. I ask the question as to whether the defendant pregnant condition about to give birth is an exceptional circumstance to warrant a departure of the Court from its policy of imposing a custodial sentence on offences of this nature. Counsels did not provide submissions particular on this question but both agree that the defendant pregnant condition should be taken into consideration as a mitigating factor. The Court of Appeal in Fuimaono v Attorney General [2021] WSCA 13 (14 December 2021) agree with submission by the Attorney General that “pregnancy is not a reason to discount a sentence unless, for some reason, it would make the sentence disproportionately severe.” Their Honours at [18] were of the view that the defendant to be separated from her infant child would result in a disproportionately severe sentence and further discounted the sentence imposed by six (6) months.
  8. In the circumstances of this offending, I find appropriate the starting point of three (3) years and deduct 12 months for being a first offender; further 8 months for personal circumstances, genuine remorse and attempted reconciliation. This, leaves 16 months’; to which I deduct 3 months for the offences she pleaded guilty to. The end sentence is 13 months.
  9. Section 63 of the Sentencing Act 2016 allows me on humanitarian ground to defer the start date of sentence of imprisonment for up to three (3) months. I also understand that the Prisons Authority for the same reason release women inmates to their families to give birth and is entitle to remain at large for three months and then recalled to serve the rest of her sentence.

Sentence Imposed

  1. The defendant is convicted and sentenced as follows:
  2. The start date of sentence is deferred for three (3) months to 25 October 2023. The defendant must turn herself in to the Prisons Authority on that day by 12noon; failing that the Police will attend to her home and take her to prison.
  3. The defendant will be entitled to apply for parole when she has served half of her sentence.

JUSTICE NIAVA M. TUATAGALOA

[1] Crimes Act 2013, ss161 &165(e).
[2] ibid., s194(2).
[3] ibid., s195(1)(c).
[4] Crimes Act 2013, s161, s165(e)
[5] Crimes Act 2013, s194(2)
[6] Obstetric Ultrasound Report dated 28 April 2023.
[7] Sentencing in Tasmania (2002) 2ndedition by professor Kate Warner at p.343

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