Police v Malifa [2024] WSSC 24 (5 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v Malifa [2024] WSSC 24 (05 April 2024)

Case name:	Police v Malifa
Citation:	[2024] WSSC 24
Decision date:	05 April 2024
Parties:	POLICE (Informant) AND SEIRA MALIFA, female of Nuu-fou Falelauniu, and Satoalepai Savaii. (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	- As a total sentence for her offending, defendant is accordingly convicted and sentenced to 6½ years in prison. Were I able to impose a longer sentence on her I would have. Because of the record amount stolen and because of the significant breach of trust involved. But I am constrained by the law as it presently stands, the sentence is therefore 6½ years in prison, remand in custody time to be deducted.
Representation:	J. Leung-Wai for prosecution F. Lagaaia for defendant
Catchwords:	- Theft as a servant – aggravating factor – serious breach of trust – total sentence
Words and phrases:
Legislation cited:
Cases cited:	Police v Wilson [2015] WSSC 5 Police v Brown [2019] WSSC 66 Police v Tialino [2014] WSSC 179
	Police v Tiatia [2014] WSSC 149
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

SEIRA MALIFA, female of Nuu-fou Falelauniu, and Satoalepai Savaii.
Defendant

Counsel:
J. Leung-Wai for the prosecution
F. Lagaaia for the defendant
Sentence: 05 April 2024

S E N T E N C E

1. The defendant is a 39 year old solo mother of Nuu-fou with four children. She pleaded guilty to 306 charges of theft as a servant involving over $1.2m stolen from her employer a local Bank over a four (4) year period.
   
2. The uncontested summary of facts says the defendant was employed by the Bank from September 2015 to November 2022 originally in the Loans Division and subsequently as the Apia Branch Manager. The majority of the thefts were committed when she was Branch Manager from July 2019 to November 2022.
   
3. As Branch Manager she was responsible for the efficient operation of the Apia Branch and oversight of all retail staff and banking activities. One of her duties involved the opening and supervision of personal accounts, personal loans and credit facilities. She was also the direct supervisor of 33 staff, some of whom were senior and some of whom were junior.
   
4. From July 2018 to August 2022, the defendant used her position and banking knowledge to manipulate banking procedures to create fictitious loans and deposit accounts in various names portraying them to be legitimate customers of the Bank. To support her scheme, the defendant procured and submitted false loan applications, fictitious birth certificates, confirmation of employment letters, land valuations, NPF client confirmations, pay slips from various organisations and local companies including Government ministries and corporations. Very sophisticated.
   
5. These loans would be approved by Head Office on her recommendation. And after deposit of loan funds to the fictitious accounts, the defendant would withdraw the funds in cash usually by using junior staff to cash false withdrawal slips or cheques issued and approved by her. This enabled her to steal over the period 12 July 2018 to 17 November 2022 the total sum of $1,230,663.54; a record amount for this jurisdiction.
   
6. The Banks victim impact report states:
   

“The defendant has a strong and confident personality which resulted in her staff, particularly the newer and much younger staff (who were often employed as tellers), following her every command and ensuring that they were always complying with her instructions to the letter. She accepted no opposition to her instructions.

She used her senior position to not only bypass the Bank’s strict checks and procedures, but also influence junior staff to do the same.”

7. She is described in the report as a master of deception who “manipulated and bullied young and inexperienced staff by using her status as their senior leader. This played havoc with their self-esteem and confidence to do their jobs and there is a common feeling of guilt and embarrassment that they did not refuse her commands or advise a senior manager of what they were being forced to do ....” The report goes on to relate how the offending damaged staff morale to the extent that specialised counselling and support was required for some.
   
8. Sometime in November 2022, the Bank identified the fraud scheme and the defendant made admissions to the theft and not surprisingly was summarily dismissed from her employment.
   
9. On 18^th November 2022, the Bank reported the matter to Police. The defendant was interviewed and cautioned. She freely confessed her guilt and co-operated with the Police and the Bank in their investigations. The jig was up the master was revealed.
   
10. The defendant was accordingly charged with three hundred and six (306) counts of theft as a servant pursuant to sections 161 and 165 (e) of the Crimes Act 2013, each charge carrying a maximum penalty of ten (10) years imprisonment.
    
11. At mentions on 5^th February 2024 through counsel the defendant entered guilty pleas to the charges against her. The defendant is a first time offender.
    
12. None of the stolen money has been recovered by the Bank.
    
13. The general principles of sentencing as enunciated in the Sentencing Act 2016 require that the courts sentence hold the defendant accountable for her actions and the harm done to the victim and to the community. As regards the victim, the victim impact report states:
    

“The reputational damage to the Banks reputation and brand has been significant. Having entered the Samoa market many years ago it has long prided itself on offering ‘state of the art’ banking services. Many of the same banking services offered to New Zealand and Australian customers are provided here in Samoa, in line with best global practice and the highest international standards.

This theft will likely be the largest theft in Samoa’s history and this factor alone has exposed the Bank to negative exposure in the press (social medial especially). It has seriously undermined its reputation locally and regionally, as well as within the banking community.”

14. This is in addition to the actual financial loss the Bank has suffered and the significant expense incurred in engaging specialist overseas and local staff to investigate these thefts and provide support, copies of countless documents and other services for the Police investigation. This matter has also as noted above undermined internal staff relationships and customer confidence. Something the victim has been forced to address at considerable cost. All this is helpfully detailed in the victim impact report.
    
15. The court also does not overlook that this kind of offending has a ripple effect that permeates throughout the banking industry of the country in one form or another. Affecting peoples confidence in all the banking institutions of this small jurisdiction of ours.
    
16. The courts sentencing must unequivocally denounce the defendants conduct and send a deterrent message not only to her personally but also to the community at large, that if you engage in this kind of deliberate, planned, organised theft from your employer you can expect little leniency from the courts.
    
17. Indeed the pattern of sentencing for theft as a servant is well established. As noted in many decisions of the court. In Police v Wilson [2015] WSSC 5 theft of $228,000 from Fletchers Company Limited, a start point of 7 years imprisonment was imposed. And in Police v Brown [2019] WSSC 66, theft from local solicitors Drake and Co of $119,000, a starting point of 6½ years imprisonment was used. In Police v Tialino [2014] WSSC 179 theft of $370,00 from Gold Star Ltd, a 6 year starting point adopted. This case involves a theft of more than double that of any previous one.
    
18. The court has said many times:
    

“The court policy in respect of such offending is well established by a long line of cases. It is serious offending and its effects are always acutely felt in a small community such as ours. It is also one of the most common offences coming before the court. Consequently, the courts policy is to impose imprisonment as its usual penalty. Unless there are exceptional circumstances warranting some other treatment.”: Police v Tiatia [2014] WSSC 149

19. There are many factors aggravating the defendants offending. There has been a serious breach of trust as the defendant held senior positions in the Bank at the relevant time. She was for many years the Manager for its main branch. As noted in the victim impact report:
    

“The defendant was the direct supervisor of 33 staff that included tellers, personal bankers, Home Loan specialists and supervisors, who would deal directly with customers for any banking needs. She was responsible for ensuring that all Bank processes were strictly followed.”

20. The offending was clearly well planned and executed indicating a large degree of pre-meditation. This is also a case of multiple thefts of different amounts over a lengthy period of time. In addition, a large amount of money has been stolen with significant impacts on the victim. A substantial imprisonment term is undoubtedly required to mark the seriousness of the defendant’s offending and the high level of criminality involved.
    
21. This case relates to theft of over $1m SAT. It is the highest recorded theft as a servant case in the history of the country. The present 10 year maximum penalty was probably not designed to cater for such large scale dishonesty. And it is perhaps time Parliament perhaps through the Law Reform Commission consider whether large scale thefts should be accorded special treatment or placed in a special category. To this end I direct that the Registrar to serve a copy of these sentencing remarks on the Law Reform Commissioner.
    
22. But for the moment, the maximum penalty for theft as a servant is 10 years in prison. The court deals with the defendant on that basis. Given the large number of charges and the amounts involved per charge the court will deal with the defendant on a totality of offending basis so that she will receive one sentence for all her thefts.
    
23. Considering all the circumstances sentence should start at least in the 8½ to 9 years in prison range. I consider the upper level as appropriate. Sentence will start at 9 years in prison.
    
24. It is clear from the materials before me as confirmed by defence counsel that no apology or restitution has been made, or even attempted. The only mitigating factors in the defendants favour are her clean record and good background of service to her family and church as set out in the pre-sentence report. For that you will receive the normal deduction of 6 months, leaves a balance of 8½ years.
    
25. You are also entitled to the usual one-quarter balance of sentence deduction for your guilty plea, because it has saved the courts valuable time and resources. This also reflects what little remorse you may have felt and your co-operation in the investigation of these defalcations. One-quarter equals a 25½ months or just over a two (2) years deduction. However the defendant neither requires nor deserves leniency for her calculated and hurtful scheme of deceit. Reduction for her guilty plea will be limited to two (2) years, leaves a balance of 6½ years.
    
26. As a total sentence for her offending, defendant is accordingly convicted and sentenced to 6½ years in prison. Were I able to impose a longer sentence on her I would have. Because of the record amount stolen and because of the significant breach of trust involved. But I am constrained by the law as it presently stands, the sentence is therefore 6½ years in prison, remand in custody time to be deducted.
    

SENIOR JUSTICE NELSON