Police v Lotomatauama [2024] WSSC 11 (8 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v Lotomatauama [2024] WSSC 11 (08 March 2024)

Case name:	Police v Lotomatauama
Citation:	[2024] WSSC 11
Decision date:	08 March 2024
Parties:	POLICE (Informant) v TIRESA SANERIVI LOTOMATAUAMA, female of Samatau and Fagalii (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	You are accordingly convicted and sentenced as follows: (a) charge 12 on Charging Document dated 11th December 2023 on a totality basis, convicted and sentenced to ten months imprisonment less any remand in custody; and (b) all remaining charges, two months imprisonment to be served concurrently.
Representation:	T. Toailoa for Prosecution V. Afoa for the Accused
Catchwords:	Theft as a servant – employee of Samoa Airport Authority – breach of trust – occurred multiple times – pre-meditation – apologized to victim company – reparation paid – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Amosa v Police [2022] WSCA 3 (14 November 2022); Mitha v New Zealand Police [2006] NZHC 1139 (28 September 2006); Police v Keti [2015] WSSC 16 (5 March 2015); Police v Logi [2021] WSSC 9 (25 February 2021); Police v Mulitalo [2022] WSSC 30 (15 June 2022; Police v Otineru [2023] WSSC 60 (15 September 2023); Police v Saitumua [2019] WSSC 53 (9 August 2019); Police v Saufoi [2022] WSSC 79 (1 December 2022); Police v Sekone [2020] WSSC 10 (30 January 2020); Police v So'onalole [2019] WSSC 70 (22 February 2019); Police v Su'a [2019] WSSC 29 (4 March 2019); Police v Tevaga [2013] WSSC 35 (21 May 2013); Police v Vaovasa [2016] WSSC 68 (14 April 2016); Police v Wulf [2022] WSSC 18 (6 May 2022); Zhang v R [2022] NZCA 267.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TIRESA SANERIVI LOTOMATAUAMA, female of Samatau and Fagalii.

Accused

Counsel: T Toailoa for Prosecution
V Afoa for the Accused

Decision: 8 March 2024

SENTENCE

The Charge

1. Tiresa, you appear for sentence on twelve (12) charges of theft as a servant from the Samoa Airport Authority (“SAA”), stealing $9,225.00.

The Offending

2. According to the Summary of Facts accepted by you through your lawyer, you were employed by the SAA as a tax officer. Your duties included collecting the departure tax at Faleolo Airport for flights to Pago. As a tax officer, you were issued a roll of 500 departure tax stickers. These would be affixed to the back of the passenger boarding passes once paid. Airport security would check the boarding passes for the payment of departure tax before allowing passengers through to departures.
3. For each paying passenger, you were to complete a boarding and departure tax form recording their names, passport numbers, dates of birth and the tax sticker serial number. The form is then used to calculate the amount of departure tax collected for each flight.
4. In August 2022, a shortage was identified and this alerted the SAA to investigate the departure tax collections. It was identified that you had purposely not declared some of the tax receipts and falsified records. Of the records that you were supposed to keep for some flights, there were no records at all meaning that you had destroyed the records and kept the money collected from those flights. Between the 5th July 2022 – 30th July 2022, you stole $9,225.00 from the SAA. You admitted to the thefts in September and October 2022.

Background of the Accused

5. You are from Samatau and Fagalii. You are now 23 years old but at the time of your offending, were 21 years old. You are the fifth of six children and according to your counsel, married with no children. You completed school to year 13. Once you completed school, you worked at Farmer Joe for approximately a year as well as part-time for Coin Save. In 2021, you began employment at the SAA. As a result of your stealing, you were terminated. You have positive character references in support of your character from your mother, church bishop and pulenuu.

The Victim:

6. A Victim Impact Report (“VIR”) has been filed by the SAA through the General Manager. Although the General Manager refers to $17,146.10 having been lost, I proceed on the basis that you stole $9,225.00 in accordance with the Summary of Facts. The General Manager refers to the Corporate Services Division suffering emotional and psychological distress from the funds being stolen by you as well as through having to go through the police process. There was also the time taken to assist police with their work. The SAA has recovered $8,800.00 from you. You have apologized and the apology has been accepted.

Aggravating Features of the Offending:

7. The aggravating features of the offending are:
   • (i) the prevalence and pervasiveness of this and other dishonesty type offending in Samoa;
   • (ii) the breach of trust in the offending. You were entrusted by the SAA to collect departure tax and properly account for it. You breached that trust;
   • (iii) the multiplicity of your offending over the period of one month;
   • (iv) I accept that the offending involved an element of premeditation as submitted by prosecution. It was also calculated. You stole money from the additional flights that weren’t on the normal flight schedule; you purposely did not declare some of the tax receipts; and you falsified and destroyed records;
   • (v) the amount of money stolen by you was not small by Samoan standards; and
   • (vi) the money stolen was money belonging to public authority and the impact of your offending on the SAA as shown in the VIR.
8. There are no mitigating features in respect of the offending. There are also no aggravating factors personal to you as you are a first offender.

Mitigating Factors personal to the Offender

9. The mitigating factors personal to you that I take into account are:
   • (i) your remorse expressed through the Pre-Sentence Report and the apology extended to the SAA;
   • (ii) relative youth, although this is not a significant factor as you were 21 years of age at the time of your offending and an adult under Samoan law;
   • (iii) the reparation paid to the SAA amounting to $8,800.00;
   • (iv) prior good character, though at 21 years of age, you have not lived a long and law abiding life so this too is not a significant factor; and
   • (v) your guilty plea, late as it was on withdrawal of other charges against you.

Discussion

10. I have been referred to a number of sentencing authorities by counsel and also refer to theft as a servant sentencing authorities from recent years as follows:

Case	Details	Sentence
Police v Otineru [2023] WSSC 60 (15 September 2023) Tuatagaloa J	4 x TAS amounting to $9,778.00 over 2 months. Defendant 22 years old at time employed by Samoa Post Limited Tuasivi. Defendant also submitted false records.	Judge noted no exceptional circumstances to warrant a departure from the Court’s usual stance with offending of this type. A 2 year sentence start point adopted resulting in 9 months imprisonment. Further reduced to 3 months.
Police v Saufoi [2022] WSSC 79 (1 December 2022) Tuatagaloa J	16 x TAS amounting to $28,828.40 from Ah Liki Wholesale. Defendant paid full restitution plus additional amounting to $34,183.10. Ah Liki Wholesale sought withdrawal of charges.	10 months supervision plus 50 hours community service.
Amosa v Police [2022] WSCA 3 (14 November 2022) Court of Appeal	TAS of $379 and $369 by 2 employees of the Gambling Control Authority. Co-defendants who had pleaded guilty to similar amounts made full restitution and sentenced with fines.	Court of Appeal stated that “[w]e consider that a starting point of a term of imprisonment was open to the Chief Justice... However, by reference to sentences imposed in comparable cases of employee dishonesty we are satisfied that the starting point imposed of 12 months was too high... We are satisfied that in the context of current sentencing practice, an appropriate starting point of six months imprisonment gives proper recognition of the aggravating features of this offending.”
Police v Mulitalo [2022] WSSC 30 (15 June 2022) Roma J	6 x TAS by ANZ worker who stole $1,000.00 total. Full restitution made with 25% deduction, remorse and GP.	12 months start point sentence and end sentence = 1 month imprisonment.
Police v Wulf [2022] WSSC 18 (6 May 2022) Tuatagaloa J	2 x TAS by a Samoa Trust Estates Corporation employee of 2 x water pumps valued at $6,500 each.	2 year sentence start point. The defendant had a PC 2013.
Police v Logi [2021] WSSC 9 (25 February 2021) Nelson J	2 x TAS from Ah Fook Vailima Distributors involving boxes of beer valued at $15,986.00. Defendant aged 20 years old.	Start point of four (4) years in prison with end sentence of 18 months imprisonment.
Police v Sekone [2020] WSSC 10 (30 January 2020) Tuatagaloa J	1 x TAS from the National Health Service of paracetamol totaling $10,560.00.	3 year sentence start point adopted.
Police v Saitumua [2019] WSSC 53 (9 August 2019) Tuala-Warren J	4 x TAS from CCK Trading Ltd amounting to $7,914.00. Defendant 29 year of age.	3 years imprisonment as a starting point for sentence.
Police v Su'a [2019] WSSC 29 (4 March 2019) Clarke J	7 x TAS of $16,263.00 goods. Repaid $2,256.00.	2 ½ years sentence start point with 6 month deduction for “prior good character, remorse and the funds repaid.”
Police v So'onalole [2019] WSSC 70 (22 February 2019) Tuatagaloa J	4 x TAS amounting to $7,450.80 from the MESC over 4 month period.	18 months supervision.
Police v Vaovasa [2016] WSSC 68 (14 April 2016) Tuatagaloa J	10 x TAS totaling $21,972.65. Defendant 22 year old first offender.	4 year sentence start point adopted. End sentence of 1 year 10 months.
Police v Keti [2015] WSSC 16 (5 March 2015) Sapolu CJ	37 x TAS - $11,877.80 – accounts section, Farmer Joe Vaitele.	2 year start point.
Police v Tevaga [2013] WSSC 35 (21 May 2013) LR Vaai.	Ministry of Revenue employee. 26 x TAS amounting to $5,720.00. Amount of $2,420 repaid. Judge noted sums stolen was taken for borrowings of other employees.	18 months-probation; balance to be repaid; 60 hours c/work and programs as recommended by Probation Service.

11. Tiresa, the attitude of Samoan Courts to this type of offending should be well known to the public. The Courts have made very 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...” The reason for such penalties is not only to deter people like you from stealing but also others who may be tempted to follow your example. Theft as a servant and dishonesty offending is so prevalent in Samoa that it is an epidemic from which almost no business or organization is immune. Reflecting the seriousness of this type of offending, the learned authors of Hall’s Sentencing have also stated:
    • “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.”
12. Your counsel has asked for a non-custodial sentence. Prosecution has referred to the authorities and submits that a cursory assessment would suggest that a starting point of 2 years is appropriate in the circumstances. However, the principles of sentencing together with the rehabilitation of the defendant and the factors outlined in their written submissions warrant a non-custodial sentence.
13. Although the Probation Service has assessed you as suitable for a community-based sentence, I must be satisfied that either the amount of money stolen by you was small or very exceptional circumstances exist in your case. First, the amount of money stolen by you was not small. I must therefore be satisfied that very exceptional circumstances exist such as to depart from the general sentencing policy of the court of imposing a custodial sentence. In essence, your counsel relies on all mitigating factors as a package to submit that the circumstances exist so as to warrant departing from an imprisonment term. Particular weight seems placed on your age, first offender status, the amount of reparation paid by you and/or your family and the views of the victim.
14. Having considered your matter carefully and the submissions by counsel, I also do not view the circumstances of your case as so exceptional such as to warrant departing from the Court’s usual sentencing policy of imprisonment. In Amosa v Police involving the theft of $379.00, the Court of Appeal held that a sentence of imprisonment was open to the Court with six-months imprisonment an appropriate starting point. Your offending was far more serious and your theft involved considerably more. You held a position of trust with the SAA. On twelve separate occasions in one month, you stole a significant amount of money amounting to $9,225.00. Your stealing was not isolated and you tried to cover your tracks by not recording the monies received by you or destroying work records. Your offending also had a significant impact on the SAA as disclosed in the VIR. The SAA is also a government ‘public body’ ultimately belonging to the people of Samoa.
15. Although you were 21 years of age at the time of your offending, the authorities show that other defendants around your age have been imprisoned for this type of offence (see: Police v Otineru (supra); Police v Logi (supra); Police v Vaovasa (supra)). Similarly, your first offender status does not constitute “very exceptional circumstances”. As New Zealand authorities show, the suggestion that you are a first offender when you have committed a series of offending is misleading and inappropriate. In terms of the SAA’s views, the General Manager refers to the hope that the defendant “undertakes a community service exercise.” The SAA however is a public body and the General Manager’s views do not outweigh the public interest in deterring and denouncing this type of offending, particularly against the government and government corporations ultimately owned by the people of Samoa.
16. Emphasis is placed on the reparations paid as well as the views of the victim. In Police v Saufoi (supra), the defendant paid considerably more than the $28,828.40 stolen. That together with the victim’s plea to withdraw charges heavily influenced the imposition of a non-custodial sentence. In Police v Mulitalo (supra), despite full restitution having been made on a lesser sum of stolen money, a custodial sentence was imposed. Where reparation is paid to the victim in offences of this nature, caution should be exercised with how reparation is treated. Only in very exceptional cases should reparation be decisive in the imposition of a non-custodial sentence. The risk is that a wrong view might begin to develop amongst thieves and would be thieves that if they are caught, simply repaying the money is a ticket out of prison. That would be an entirely wrong message to convey.
17. In the recent New Zealand Court of Appeal judgment in Zhang v R [2022] NZCA 267, there was debate as to whether the payment of reparation resulted in a reduction to the start point or as a mitigating factor personal to the defendant. In Zhang, the reparation went towards the start point with a 20 per cent deduction for full reparation deemed sufficient.
18. In Mitha v New Zealand Police [2006] NZHC 1139 (28 September 2006), Panckhurst J however observed that where full reparation had been made, ordinarily that is a mitigating factor personal to the offender. Panckhurst J noted though that reparation may be relevant on the fixing of the starting point where it goes towards the motivation for the offending and the retention of the money. In this case, your reparation is a mitigating factor personal to you.
19. The sentence today is therefore 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. Having reached this view and that very exceptional circumstances do not exist to depart from the Court’s usual approach to sentencing, I view a two-year sentence start point as appropriate on a totality basis. From that start point, I deduct three months for your remorse and apology; four months for your youth and prior good character; four months for the reparation paid and from the balance, three months for your guilty plea leaving an end sentence of ten months imprisonment.

Result

20. You are accordingly convicted and sentenced as follows:
    • (a) charge 12 on Charging Document dated 11th December 2023 on a totality basis, convicted and sentenced to ten months imprisonment less any remand in custody; and
    • (b) all remaining charges, two months imprisonment to be served concurrently.

JUSTICE CLARKE