Police v Toala [2024] WSSC 73 (21 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v Toala [2024] WSSC 73 (21 March 2024)

Case name:	Police v Toala
Citation:	[2024] WSSC 73
Decision date:	21 March 2024
Parties:	POLICE (Informant) v PETAIA TOALA, male of Siufaga, Faga Savaii & Alafua (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	Mr. Toala, I make and order that in relation to the charge of theft as a servant to which you have pleaded guilty, that you are discharged without conviction.
Representation:	H. Apisaloma for Prosecution G. Patu for the Defendant
Catchwords:	Theft as a servant – discharged without conviction.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 11; 161; 165(e); Sentencing Act 2016, ss. 69; 70.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PETAIA TOALA, male of Siufaga, Faga Savaii & Alafua

Defendant

Counsel: H. Apisaloma for Prosecution
G. Patu for the Defendant

Sentencing: 21 March 2024

SENTENCE OF PERESE CJ

1. The defendant is a 30 year old male of Siufaga, Faga Savaii and Alafua
2. He has pleaded guilty to a single charge of theft as a servant.^[1] The value of the stolen property, being a desktop computer and mini PA, is approximately SAT$7000.
3. The property is owned by the Seventh-day Adventist Church at Lalovaea. It appears that the defendant was a former employee of the Church and that he had taken home the church’s property described above. The defendant says he used the equipment to carry out the complainant’s work at his personal residence. It is not clear whether he had consent to have the property at his home.
4. The defendant then sold the property but they have been recovered by the police and returned to the Church.
5. This is an unusual sentencing matter. It is not clear how the defendant stole the property and whether he had used or dealt with the property with the intent to deprive the church permanently of the property. The defendant alleges that the complainant owed wages to him. The defendant potentially has a defence of colour of right, but that is not being pursued. The defence of colour of right is a common law defence which is available in Samoa by virtue of section 11 of the Crimes Act 2013. If proven the defendant would be entitled to be acquitted of the charge.
6. However, despite being given an opportunity at the last call of this matter to consider making an application to vacate his guilty plea, his lawyer advised the Court that he wishes to uphold his guilty plea. I must therefore take it that the defendant intended to deprive the owner of the property permanently, and that he does not wish to advance a colour of right or claim of right defence to the property. He acknowledges in his affidavit, “I am not denying that I stole the items, I take full responsibility for my actions and I am remorseful.”^[2]
7. I have had the opportunity to consider the prosecution sentencing memorandum, the summary of facts, the pre-sentence report prepared by Probation dated 04^th March 2024 and the submissions on behalf of the defendant dated 06^th March 2024. I have also had regard to the affidavit from the defendant dated 06^th March 2024 and his supplementary affidavit dated 07^th March 2024.
8. The law provides that where a person steals the property of another in circumstances where the property is owned by the defendant’s employer, then the maximum term of imprisonment that they can be imposed cannot exceed 10 years.^[3] This is a clear sign from the lawmakers that the Court must take these types of offences seriously.
9. The prosecution points to the following aggravating features:
   • (i) The offender’s abuse of trust, which is inherent in almost every instance of theft from an employer;
   • (ii) A degree of planning and pre-meditation. The prosecution submits that the Court can draw an inference from the way in which the property was taken without the employer’s permission; that the defendant had no intention of returning the property;
   • (iii) That the defendant sold the two items separately; and
   • (iv) The stolen items were of high value – a total value of SAT$7,000.00, and belonged to a Church.
10. The Prosecution seeks a custodial sentence with a starting point of two years.
11. The defendant’s counsel submits that the appropriate treatment for this offending is a discharge without conviction.^[4] Mr. Patu submits for the Court to take into consideration the early guilty plea, that he is a first time offender, and that contrary to Prosecution’s submissions there was a lack of planning and pre-meditation. Mr. Patu submits that a discharge without conviction should be granted because the direct and indirect consequences of the conviction to the defendant would be out of all proportion to the gravity of the defence.
12. The Probation Service report sets out in more detail the defendant’s extensive experience as a videographer, and the potential effect of a conviction of this nature on his employability.
13. Although the defendant has not pursued the defence of colour of right, I cannot in the interest of justice turn a blind eye to the possibility the defendant sold the equipment to recover what he considered to be unpaid wages. The defendant suggests that the sum owed was SAT$96,000. I am sceptical of this level of remuneration. It may be the case that he had not been paid for the work which he carried out during the month of November 2023 or any of the periods of “overtime” that he worked, (for which he might be entitled to recover lost income by way of quantum meruit claim).
14. When this matter was called last week on 07^th March 2024, I invited Prosecution to reconsider the charge and whether it still wished to pursue it. Prosecution advised that the issues raised in this case are criminal rather than civil. Indeed, it is the Prosecution’s view that there is no civil element in the matter. I respectfully disagree. The defendant put the issue of unpaid wages before the Court in his affidavit dated 06^th March 2024 which is why I am obliged to consider this concern. There has been no response from the Prosecution.
15. I consider the gravity of the offence is serious, it’s an offence involving an employee’s theft from an employer who had reposed trust and confidence in him. These types of offences go to the heart of employment relationships. An employer is entitled to have trust in the employee, and the breach of trust through theft is one of the most serious offences an employee can commit.
16. The stigma attached to these offences has a career limiting or ending consequences particularly in the industry in which the defendant works which appears to be relatively small, with most operators likely to know each other. As in this case, the work appears to be by way of personal reference as opposed to through the classified advertising of one’s services.
17. Yet, I must weigh up the seriousness of the offence against the consequences for someone such as the defendant – the loss of his employment for which he has become skilled at over the years. It would not be melodramatic to consider that such a conviction would likely be the end of his ability to take on this type of work, at least in Samoa.
18. I consider that the discretion that is open to me under s. 69 of the Sentencing Act 2016, should be exercised in the defendant’s favour. In doing so, I am satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of this serious offence.
19. Mr. Toala, I make and order that in relation to the charge of theft as a servant to which you have pleaded guilty, that you are discharged without conviction.
    

CHIEF JUSTICE

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^[1] Crimes Act 2013, ss. 161 & 165(e).
^[2] Affidavit of Petaia Toala (06 March 2024) at paragraph 8.
^[3] Crimes Act 2013, s. 165(e).

^[4] Sentencing Act 2016, ss. 69 & 70.