Police v Kapelielu [2024] WSSC 142 (19 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Kapelielu [2024] WSSC 142 (19 December 2024)

Case name:	Police v Kapelielu
Citation:	[2024] WSSC 142
Decision date:	19 December 2024
Parties:	POLICE (Informant) v LAEITAUA LEMATUA KAPELIELU, of Vaiusu (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 12 months’ supervision for each offence (107 counts) to be served concurrently.
Representation:	Attorney General’s Office for Prosecution Defendant appears in Person
Catchwords:	Theft as a servant – first offender – breach of trust – occurred multiple times – partial retribution
Words and phrases:	“employed as a cashier at a supermarket”
Legislation cited:	Crimes Act 2013, ss. 161(1)(a); 165(e)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

LAEITAUA LEMATUA KAPELIELU, of Vaiusu

Defendant

Counsel: Attorney General’s Office for Prosecution
Defendant appears in Person

Date: 19 December 2024

S E N T E N C ING OF TUATAGALOA J

The Charges:

1. The defendant appears for sentence having pleaded guilty to one hundred and seven (107) counts of theft as a servant contrary to sections 161(1)(a) and 165(e) Crimes Act 2013, which carries a maximum penalty of 10 years’ imprisonment.

The Offending:

2. The Summary of facts (SOF) by the Prosecution says the following:
   • The defendant was employed by the Farmer Joe Supermarket Fugalei as a cashier. Between 09 July 2024 and 27 July 2024, the defendant exploited a bug in the Farmer Joe company sales system to steal from the Company. The defendant would enter the quantity of an item as .0001 or any lower figure in the sales system which would be registered on the system as having no value or selling price and the defendant would keep the money paid by the customer for the item, instead of putting the money in the till. The defendant during this period made 107 transactions where she stole cash sums ranging from $2 to $67.90. The total sum of cash the defendant stole was $1,376.00.
   • A customer on or around 27 July 2024 noticed the $0.00 value or selling price on her receipt for an item she purchased reported the matter to the Manager of Farmer Joe. This led to an internal investigation resulting in the defendant being charged.

The Defendant:

3. The defendant is 30 years’ old, married with two (2) young children. She is currently unemployed as a result of her offending. Her family depends on making and selling of handicraft.
4. The defendant is a first offender. She with her mother apologized to the Management of the Farmer Joe Supermarket. The management confirms the apology and informed the defendant that they will accept payment of $1000 as restitution for the company’s money stolen by the defendant.
5. The defendant had only paid $500 to the Management of Farmer Joe as evidenced by receipt #0093 and confirmed by Management.

The Aggravating Factors:

6. The Prosecution identified the following as aggravating factors of the offending:
   • Abuse of position of trust – usually attach to employee – employer relationship
   • The time frame of three – four weeks that the defendant continues to offend
   • The behaviour or the offending would have more of a negative impact upon the company and its operations and processes rather than the amount stolen of $1376.00.
   • The offending at first was opportunistic but became premeditated when the defendant continues to offend.

The Mitigating Factors:

7. The mitigating features personal to the defendant are:
   • (i) Her early guilty plea;
   • (ii) Prior good character;
   • (iii) Apology and
   • (iv) Part -payment of money asked for by the Company as retribution for her misdeed.
8. The defendant in the Pre-sentence report (PSR) relays that she took advantage of the breakdown in the system whereby she allows customers to take the products where they did not have enough money to pay for the full price. There are 107 transactions and I can accept what she said where the amounts are less than $10 but I do not accept where the amount per transaction is $10+.
9. I accept that the defendant is remorseful for what she did.

Discussion:

10. Although, the defendant has not made full payment as the victim company has asked, the Court notes that the total amounts stolen by this defendant ($1,376) is much less from the amount stolen by another defendant ($4,595.21) of the same circumstances and yet both have been asked by the victim company to pay $1000 each as retribution for their misdeeds. This defendant stole $1,376 and have repaid $500 leaving a balance of $876.00. The other defendant stole the total amount of $4,595.21 was also asked to pay only $1000 as retribution by the victim company and has done so leaving a balance of $3,595.21.
11. The Courts approach to sentence for theft as a servant is custodial unless there are exceptional circumstances. However, in the circumstances of this offending the mitigating factors outweigh the aggravating factors. Most important is the apology accepted by the Management of Farmer Joe and the part -payment of money by the defendant. The apology and part-payment show genuine remorse by the defendant. I have no doubt that the defendant has learnt a lesson and would refrain from further similar offending in the future

The Sentence:

12. The defendant is convicted and sentenced to 12 months’ supervision for each offence (107 counts) to be served concurrently.

JUSTICE TUATAGALOA