Police v Skelton [2023] WSSC 59 (15 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v Skelton [2023] WSSC 59 (15 September 2023)

Case name:	Police v Skelton
Citation:	[2023] WSSC 59
Decision date:	15 September 2023
Parties:	POLICE (Prosecution) v SERAH MARIE SKELTON, female of Alamagoto (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	In respect of the charge of theft as a servant in the Further Amended Charging Document dated 27th July 2023, you are convicted and sentenced to 3 years imprisonment less time remanded in custody.
Representation:	T. Sasagi for Prosecution Q. Sauaga for the Defendant
Catchwords:	Theft as a servant – public servant (management level) – occurred multiple times – gross breach of trust – pre-meditation – first offender – full restitution paid -
Words and phrases:
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980, r. 6;
Cases cited:	Police v Chadwick [2015] WSSC 15 (5 March 2015); Police v Esekia [2021] WSSC 87 (26 May 2021); Police v Etuina [2021] WSSC 67 (4 October 2021); Police v Faatafa [2019] WSSC 95 (7 June 2019); Police v Faatoia [2022] WSSC 11 (21 June 2022); Police v Keti [2015] WSSC 16 (5 March 2015); Police v Lauina (Unreported) (01 December 2022); Police v Logi [2021] WSSC 9 (25 February 2021); Police v Malaefono [2016] WSSC 199 (20 October 2016); Police v Motuga [2014] WSSC 89; Police v Salanoa [2020] WSSC 74 (5 November 2020); Police v Sofai [2017] WSSC 78; Police v Suataai [2021] WSSC 64 (22 October 2022); Police v Tufuga [2015] WSSC 32 (30 January 2015); Police v Vito [2019] WSSC 39 (30 May 2019); Police v Wulf [2022] WSSC 18 (6 May 2022); Police v Wright [2016] WSSC 195 (2 November 2016); R v Barrick (1985) 81 Cr App. R 78 at pp 81 – 82 cited in Police v Ulupoao [2007] WSSC 21 (28 March 2007); R v Varjan CA97/03; Rako v R [2015] NZCA 463 (28 September 2015).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

SERAH MARIE SKELTON, female of Alamagoto.

Defendant

Counsel: T Sasagi for Prosecution
Q. Sauaga for Defendant
Submissions: 8 September 2023
Sentence: 15 September 2023

SENTENCE

The Charge

1. The Defendant Serah Skelton appears for sentence on one (1) representative charge that between the 1^st January 2016 and 31^st December 2017 as a servant of the Ministry of Justice and Courts Administration (“MJCA”), she dishonestly took $20,000.00 the property of her employer.

The Offending

2. According to the Amended Summary of Facts accepted through her counsel, the Defendant was the Assistant Chief Executive Officer (ACEO), Corporate Services Division of the MJCA. Her role included overseeing the Corporate Services Division, the Civil Trust Account (“CTA”), money collected through the cashier and the petty cash.
3. The CTA is a special purpose trust account. The CTA, it seems, is required to be kept pursuant to rule 6 of the Supreme Court (Civil Procedure) Rules 1980. Funds kept in the CTA include money ordered by the Court to be paid by a party to a proceeding into the account pending the outcome of a court matter. In the Amended Summary of Facts, the MJCA is described as a middle party to manage money to be paid to a third party usually as a result of a court order. The Defendant is an authorized signatory to the CTA for the release of money from the account. The Defendant was also responsible for the employees who managed and reconciled the CTA. The CTA is separate to cashier’s collections and petty cash.
4. Between the 1^st January 2016 and the 31^st December 2017 at Mulinu’u, the Defendant stole monies from the MJCA petty cash for her personal use.
5. On several occasions, she also co-signed and co-approved multiple cheques of differing amounts from the CTA. The Defendant gave those cheques to a junior employee under her supervision. The employee would cash the CTA cheques at the ANZ Bank. On return to the MJCA, she would instruct the junior employee to transfer some of the cashed CTA money into petty cash “to cover” the petty cash shortfall caused by the stolen petty cash. This was so the “accounts would balance” and conceal from the Audit Office the shortfall when “spot checks” were carried out. The total amount stolen by the Defendant was ST$20,000.00.
6. The Defendant’s offending came to light when the Ministry of Finance conducted an investigation and found discrepancies in the CTA.

Background of the Accused

7. The Defendant is a 45 year old married woman with 4 children. In her Pre-Sentence Report, she is said to be 48 years of age. She is the youngest of 9 children. The Defendant is highly educated. She completed school to year 12, went on to the National University of Samoa and subsequently, the University of the South Pacific where she completed a Diploma in Business Management and a Bachelor of Management and Economics. She then went on to Victoria University, Melbourne Australia where she completed a Post Graduate Diploma in Project Management, Training and Assessment.
8. The Defendant began her career with the ANZ Bank in 1999. Later that year, she commenced work for the MJCA as an accounts clerk. She then worked other roles as the Law and Justice accounts clerk; as a Policy and Planning officer; and rising through the ranks as a senior and then principal level officer. In 2009, she was appointed ACEO Corporate Services. She was terminated from the MJCA for this offending. She subsequently found employment at Mapuifagalele as an Accounts Administration Officer. She informed the Probation Service that she is diabetic and has high blood pressure.
9. The Defendant has a number positive character references in support of her character. These include from the Mother Superior of Mapuifagalele, her priest, Village Mayor, eldest son, family matai, the St Mary’s School Principal, Fr Nicholas Fido, Reverend Silva and her brother Fr James Skelton. She also has a number of professional references. These include the Chief Executive Officer of the MJCA; a former Principal HR Officer, MJCA, Manusamoa Christine Saaga and Rosemarie Esera of the Ministry of Education, Sports and Culture.

The Victim

10. A Victim Impact Report (“VIR”) has been filed by the MJCA. The VIR refers to the financial loss to the MJCA and damage to the reputation of the MJCA. The matter has been widely reported in local media as well as the MJCA being subject to adverse commentary on social media. The investigation of the Defendant’s offending has consumed significant time and resources of the MJCA and its staff. It is also clear from the trial documents that significant resources of the Audit Office and Ministry of Finance were also taken up investigating the offending and assisting Police and the Office of the Attorney General.
11. Although the MJCA has provided the VIR, the ultimate victim of the offending is the State and the Samoan tax payer. The Defendant’s theft was not from an individual but money ultimately belonging to all Samoans.

Aggravating Features of the Offending

12. The aggravating features of the offending are:
    • (i) the prevalence of this and other dishonesty type offending;
    • (ii) the gross breach of trust in the offending. The Defendant was the ACEO Corporate Services. She was entrusted amongst other responsibilities to implement, supervise and oversee the proper financial management of the CTA, petty cash and other public monies held by the MJCA;
    • (iii) the multiplicity of her offending over a lengthy period of time. It was not isolated or a single act of dishonesty or theft;
    • (iv) the offending was premeditated and calculated. She stole from the MJCA petty cash and then took money from the CTA to actively hide her tracks from the Audit Office;
    • (v) the amount of money stolen by her was not insubstantial by Samoan standards; and
    • (vi) the money stolen was public money and the impact of the offending on the victim as shown in the VIR.
13. There are no mitigating features in respect of the offending. There are also no aggravating factors personal to the Defendant as she is a first offender.

Mitigating Factors personal to the Offender

14. The mitigating factors personal to the Defendant that I take into account are:
    • (i) her prior good character. She is 45 years of age, if not 48, and has not been before the Court before. She has many references which speak of her prior good character;
    • (ii) her genuine remorse as noted in the Pre-Sentence Report and her references;
    • (iii) the full restitution paid; and
    • (iv) the guilty plea on the reduction of the charges.

Discussion

15. Serah, I have carefully read your statement and those from your family members about the impact of these proceedings on you and your family. Your counsel describes your experience with the criminal justice system as “harrowing”. I have also read the many references in support of your good character. You were very highly regarded both personally and professionally. The references also make clear the level of trust entrusted to you in the MJCA. In his reference, the CEO of the MJCA states that “[i]n my role as CEO, I had complete trust and confidence in Serah...” He and others also speak of your “integrity”, “honesty”, “high aptitude”, “leadership”, “good judgment” and “professionalism”, amongst many other positive attributes.
16. Having read the references, it is very difficult to reconcile the person lauded in these many references with your offending. This is more bewildering given you were the ACEO Corporate Services. As ACEO, you were the second most senior level public servant in the MJCA. In the very building where the Courts operate and for all to see, a steady stream of Defendants appear each and every day for this and other types of offending and face imprisonment, you stole $20,000.00 from petty cash. You then concealed your stealing with money from the CTA. Your offending was brazen, calculated, arrogant and completely foolish. Given your position, perhaps you thought you could get away with your stealing. Perhaps you simply felt entitled to the money by virtue of your position. Only you will know why you had such a serious lapse of judgment. What should however have been clear to you all along given your position was the likely consequences that would flow from your stealing.
17. Samoan Courts have time and again made clear that for this type of offending, “[i]n general, a term of immediate imprisonment is inevitable save in very exceptional circumstances or where the amount of money obtained is small...”^[1] In a similar vein, the learned author of Hall’s Sentencing states:
    • “Where the opportunity for offending arises out of abuse of a position of authority or involves a breach of trust, unless there are strong mitigating circumstances, the offence is likely to result in the imposition of a deterrent or denunciatory sentence.”^[2]
18. In Police v Chadwick [2015] WSSC 15 (5 March 2015), Sapolu CJ made the point that cases of theft as a servant always involve a breach of trust by an employee of an employer’s trust in him/her. The more important question is often “the quality and degree of trust placed by an employer in an employee...”
19. In your case Serah, the quality and degree of trust placed in you was substantial. You were ACEO Corporate Services. You were a very senior public servant, second only to the CEO. You were responsible for the employees who managed and reconciled the CTA. You were tasked at a senior management level, amongst other matters, with the protection of public money from acts of dishonesty and fraud. You also no doubt had reporting obligations if public money was being misappropriated. Appointed to a senior public service position to protect public monies from thieves and fraudsters, you became the thief. You were also one of only a few signatories to the CTA. This account was used by you to replenish the money stolen from petty cash. The CTA, as the name makes clear, was a “trust” account. Your conduct was shameful.
20. There is no scale or guideline tariff sentencing for this offence. In R v Varjan CA97/03, the New Zealand Court of Appeal stated at [22] and [23] in the case of of fraud that:
    • “Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
    • It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.”
21. In Rako v R [2015] NZCA 463 (28 September 2015), the New Zealand Court of Appeal at [10] also stated that:
    • “Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant. In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.”
22. Prosecution seeks a sentence start point of 5 years imprisonment. Your counsel seeks a non-custodial sentence. If a custodial sentence is to be imposed, that a start point of 2 years imprisonment be adopted.
23. The authorities show that Defendants have been imprisoned for this offending where the level of their culpability is much less than in your case. The following table shows a number of authorities referred to by counsel and the Court. I have also had regard to the authorities referred to by counsel and not included in this table.

Case	Charges	Sentence
Police v Lauina (Unreported) (01 december 2022).	16 x TAS - $28,828.40. Full restitution plus additional sums in total - $34,000.00. Victim sought withdrawal of matter.	10 months supervision plus 50 hours community services for each charge plus prosecution and probation costs.
Police v Faatoia [2022] WSSC 11 (21 June 2022)	1 x TAS - $4,678.90 (Security guard)	18 months start point.
Police v Wulf [2022] WSSC 18 (6 May 2022)	2 x TAS - $13,000 (Employee – STEC)	2 year start point.
Police v Suataai [2021] WSSC 64 (22 October 20222)	6 x forgery and 5 TAS - $2,600.00.	30 months start point.
Police v Etuina [2021] WSSC 67 (4 October 2021)	7 x TAS - $14,910.00	4 year start point.
Police v Esekia [2021] WSSC 87 (26 May 2021)	156 x TAS - $353,034.07 – Assistant Manager Finance and Administration.	8 year start point.
Police v Logi [2021] WSSC 9 (25 February 2021)	2 x TAS - $16,000.00.	4 year start point.
Police v Salanoa [2020] WSSC 74 (5 November 2020)	11 x TAS - $358,940.00 and 8 x forgery.	7 year start point.
Police v Faatafa [2019] WSSC 95 (7 June 2019).	45 x TAS - $57,000.00 – employed as Manager Samoa operations of victim company.	5 year start point.
Police v Vito [2019] WSSC 39 (30 May 2019)	1 x TAS (representative) - $42,180.00 – Cashier.	5 year start point.
Police v Sofai [2017] WSSC 78	2 x TAS - $850.00.	12 months supervision and attend program and100 hours community work plus $600.00 prosecution costs.
Police v Wright [2016] WSSC 195 (2 November 2016)	3 x TAS (120 litres petrol in total, indeterminate value); 1 x TAS 4 plywood sheets $688 - by Superintendent of Police from Maritime Division.	3 year start point.
Police v Malaefono [2016] WSSC 199 (20 October 2016)	11 x TAS - $18,964.20 – delivery truck driver.	3 year start point.
Police v Keti [2015] WSSC 16 (5 March 2015).	37 x TAS - $11,877.80 – accounts section, Farmer Joe Vaitele.	2 year start point.
Police v Tufuga [2015] WSSC 32 (30 January 2015)	1 x TAS - $25,000.00 plus 1 x forgery.	3 year start point.
Police v Motuga [2014] WSSC 89	TAS - $20,000.00.	5 year start point.

24. In Police v Wright involving a Police Superintendent’s theft of items of substantially less value than in this case, Nelson J’s assessment of culpability emphasized the quality and degree of the breach of trust and adopted a 3 year start point in a deterrent sentence. In Police v Etuina and Police v Logi involving between $14,000.00 and $16,000.00, a 4 year start point was adopted. In Police v Motuga involving the theft of $20,000.00, a 5 year start point was adopted. In Police v Lauina involving the theft of $28,828.40, a non-custodial sentence was imposed. That sentence however appears peculiar to that case, the restitution exceeding the sum stolen and the plea of the victim.
25. The sentence today is with the purpose of denouncing your conduct and deterring you and others from committing this same or similar type of offending. The Court must continue to send out a strong message that this type of offending will not be tolerated. It will be met with a stern sentence sufficient to convey the Court and the community’s denunciation of such conduct. Samoa is a small developing island state with limited financial resources and many development challenges. Public money is a precious and limited commodity. It must be therefore clear to all including in particular public servants and public office holders that the theft of public money is a very serious offence. If you steal in this way, save as to exceptional circumstances, a term of imprisonment is inevitable. You steal at your peril and if you do so, you should be under no illusion as to what awaits you in Court.
26. In your case, there are no exceptional circumstances. Your offending constituted a particularly gross breach of trust by a very senior public servant of public monies entrusted to your care. You did so on more than one occasion, your offending was not isolated and it took place over a lengthy period of time. Perhaps best stated by the CEO, he “had complete trust and confidence” in you – as he should in any of his ACEOs. That trust and confidence was however entirely misplaced. You have I expect let down many people - your family, your friends and your work colleagues – and no doubt, yourself.
27. As stated in Rako, setting the starting point is not solely or even primarily by reference to the amount at issue. Start points reflect a more complex exercise involving the consideration of a combination of factors resulting in the start point. These include in “the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.”
28. Having considered the authorities and the relevant factors in this case, I accept that the appropriate start point for sentence on a totality basis is 5 years. This reflects, together with the other factors I have referred to, your gross breach of trust; the impact of your offending together with the resources it has consumed to investigate; the multiplicity and duration of your offending; and your premeditated, calculated concealment and brazen theft of public money.
29. From this start point, I deduct 7 months (12%) for your prior good character, remorse and apology. I deduct a further 6 months (10%) for the full restitution paid by you despite restitution only being paid in August 2023, some years after you stole the money. From the balance, I deduct 11 months (23.5%) for your late guilty plea on reduction of the charges leaving an end sentence of 3 years imprisonment.

Observations on Systemic Weakness

30. Before I conclude my sentencing, I wish to make some brief final remarks. In her Pre-Sentence Report, the Defendant refers to a practice of herself and others in the MJCA “borrowing” – a too often abused euphemism for stealing in this country - from the petty cash. The Defendant did not assist Police, nor does it seem MOF or the Audit Office to determine whether there is any truth in the allegation as to the possible involvement of others in borrowing from petty cash. As such, the Defendant’s allegations of borrowing from petty cash by others in the MJCA is only that - an allegation.
31. What however appears from the accepted facts and the anecdotal evidence in the trial documents is that other employees in the MJCA were aware of the Defendant’s actions which were clearly contrary to public finance management regulations. In terms of the CTA, the evidence of a large number of cheques written and cashed in circumstances seemingly contrary to public finance management regulations went unreported for a long period of time. It was also not from within the MJCA that wrongdoing was identified and investigated but by the Ministry of Finance.
32. In Police v Wright (supra), Nelson J found it disturbing that Police culture seemed to be one of “blind loyalty and obeisance” to superior officers. As Nelson J also stated, loyalty is an admirable quality “but not to the extent of turning a blind eye to what was potentially criminal behavior on the part of a senior colleague.” A culture of silence around the Defendant’s apparent breaches of public finance regulations by other officers is also disturbing. A culture of silence around breaches of public finance regulations within the public service must not be allowed to take root. It weakens government’s public financial system and the protection of public money. These are matters that the Public Service Commission and the Ministry of Finance may wish to address.

Result

33. Now I turn to the result. In respect of the charge of theft as a servant in the Further Amended Charging Document dated 27^th July 2023, you are convicted and sentenced to 3 years imprisonment less time remanded in custody.
    

JUSTICE CLARKE

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^[1] R v Barrick (1985) 81 Cr App. R 78 at pp 81 – 82 cited in Police v Ulupoao [2007] WSSC 21 (28 March 2007).

^[2] Geoff Hall, Hall's Sentencing (online ed, LexisNexis) at [I.5.11 Breach of trust].