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Peseta v Police [1994] WSCA 11; 18 1993 (30 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 18/93
BETWEEN:

SEFULUFA PESETA

of Vaivase but currently a prisoner at Tafaigata Prison
Appellant
AND:

POLICE

Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 29 March 1994

Counsel: P. Fepuleai for Appellant
K. Latu for Respondent,

Judgment: 30 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

Before the Court is an application for leave to appeal against sentence lodged out of time. There was a trial in the Supreme Court at Apia, in circumstances that will be referred to hereafter, and appellant was convicted on a total of 10 charges. On 28 September 1993 he was sentenced to a total term of imprisonment of 21 months. An appeal was filed on 1 November 1993 which was out of time, and by a not insignificant period. We stress that time limits imposed by statute are there to be observed, but if the reasons for delay are held to be satisfactory time could be extended. In this case counsel for appellant said he gave priority to ensuring the appeal against sentence had merit, and time was used in the conduct of his researches. We accept that explanation and time is therefore extended pursuant to s. 164Q(3) of the Criminal Procedure Amendment Act 1992/1993.

It will be helpful if we outline the course of criminal conduct that led to the charges. Appellant commenced work with a constructional company in September 1991 as a junior clerk and became senior accounts clerk in February 1992. The part of his work that concerns this case was his responsibility for preparing cheques and obtaining cash for weekly payrolls. The defalcation on his part began in May 1992 and continued for one year to May 1993. The method used by him was relatively straightforward. In his work he had consistently undertaken the task of going to the bank and obtaining the cash for the payrolls. What he had done over the year was to prepare incorrect vouchers and then make out cheques for those incorrect amounts. The differences between the cheque amount and the proper wages was directed to himself.

The discrepancies were first revealed in the third week of May 1993 and appellant was dismissed on 24 May 1993 and the matter was ultimately reported to the police by company officers and prosecutions followed.

A trial took place on 14 September 1993 when appellant faced 11 separate counts which had been reduced from the number originally laid. He pleaded guilty to two counts involving a total of $700. As a result of the trial, three further counts were dismissed and he was convicted on eight other counts for which he had pleaded not guilty. Either by plea or by court finding the total of the sums represented by the defalcation for which he was convicted was $3,605. It is appropriate to mention here that appellant had begun to mitigate his thefts before discovery by making payments to the employer's account in the sum of $2,000. After discovery he made an immediate further payment of $2,500 bringing his total repayment to $4,500 which exceeded by $895 the sums for which he was ultimately convicted.

On 28 September 1993 appellant faced sentence on 10 counts for sums totalling $3,605. The amounts of the individual counts ranged from $75 to $530. Four of the counts were for $500 and one for $530. Two were for $300 and two for $200. The offence committed on 21 July 1992 was for $75, easily the lowest single sum.

There is no record of the sentencing remarks. For reasons no counsel could explain the Judge sentenced appellant to one year's imprisonment on the 21 July offence for $75 and nine months imprisonment on each of the other nine charges which were to be served concurrently within themselves, but cumulatively on the one year sentence. The total effective sentence to be served for the criminal conduct was 21 months. Against that sentence appellant lodged his appeal.

We say something on the sentencing strategy of making some sentences cumulative on others when there are several charges for which sentences are to be imposed. The general rule in most jurisdictions is that the Court makes an overall assessment of the totality of the criminal conduct and chooses an appropriate length of sentence to be served. This is often done by imposing a head sentence on the charge which is regarded as the most serious and adjusting at equal or lower periods sentences for other charges. The end result is one term of imprisonment because all separate sentences are to be served concurrently.

There are occasions when cumulative sentences are called for but there must be something distinctive in the facts for this course to be followed Usually it is because one block of offending is very materially different from another as might arise when the offending is markedly different in kind and perhaps committed at different times and places. For example a burglary committed at one time and a rape a month later involving utterly different victims might call for the Judge responsible at sentencing to impose cumulative sentences. We make it plain to avoid doubt these observations are of the broadest type and particular facts of any sentencing must prevail. However if the general characteristics and nature of the offending is similar then the better course is to make separate sentences concurrent.

We turn then to the particular facts of this case. It seems to us that there was nothing distinctive or unusual about the nature of the separate crimes that were committed. There was a consistent pattern of offending over one year in which an officer of authority in a commercial company committed well calculated fraud, as Mr Latu for the respondent submitted. The same deceitful techniques was employed and it was only halted when he was unmasked by his superiors and dismissed. We think it was wrong in principle to choose one offence and give to that the head sentence of one year with the nine other more serious offences judged by the money involved a lesser sentence of nine months for each, concurrent within themselves but cumulative on the head sentence.

With that as a starting point we then look at the totality of the offending for which he was to be sentenced. There were 10 charges totalling $3,605 and it is only on those 10 charges and for that total amount he was to be sentenced.

We have obtained considerable help from Mr Fepuleai's researches into recent sentencing for theft, and in particular where the theft is aggravated by existence of service contracts. We are informed that theft as a servant is prevalent and besides the sanctions of criminal law employers have a responsibility for close supervision of staff. We have little doubt that persons who contemplate this type of offence must realise that in most instances prison terms will result and we are satisfied a prison term here was appropriate.

However standing back and looking at the totality of the offending we think 21 months was excessive and that the proper sentence was 12 months. That result is achieved by quashing the order that one group of sentences be cumulative on the head sentence. All sentences imposed are to be served concurrently which makes the effective time in prison 12 months. Any time already spent in prison will be deducted from the 12 months.

Solicitors:
Fepuleai, Apia for Appellant
Attorney-General's Office, Apia for Respondent