Home | Databases | WorldLII | Search | Feedback Court of Appeal of Samoa

Tagata v Police [2002] WSCA 6; 05 2002 (2 December 2002)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 5/2002

BETWEEN:

SIFAGA TAGATA
Appellant

AND

POLICE
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 26 November 2002

Counsel: Mr M Leung Wai for the Appellant
Mr R. Schuster and Ms Sesilia Eteuati for the Respondent

Judgment: 2 December 2002

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

This is an appeal against conviction on 8 separate counts of theft as a servant and against a sentence of 15 months imprisonment.

The appellant was jointly charged with three other employees of Telecom Samoa Cellular Limited that over a period June 2000 to March 2001 they had received in cash a total of $366,397.50 belonging to their employer, which they were obliged to credit to their employer's account but had fraudulently dealt with it in another manner. The informations were laid under The Crimes Ordinance 88, which provides

"Extended definition of theft - Without in any way limiting the generality of the foregoing definition of theft. every person shall be deemed guilty of theft who holds, receives, or obtains any money, valuable security, or other thing whatsoever capable of being stolen, subject to any obligation (whether arising from an express or implied trust, or from an express or implied contract, or from tiny other source whatsoever) to deal with such moneys, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in airy other manner, or fails to deal with it in accordance with such obligation."

All defence counsel at the trial agreed that the total deficit was $366,397.50. The prosecution was unable and never attempted to prove the exact amount of cash received by each defendant. They all admitted when interviewed by Mr Connor the managing director of the employer that they had from time to time taken cash for their own purposes from the 'black tin' in which it was held until banked, such appropriations being excused as 'borrowings'. Such conduct was unauthorised and contrary to an office memo dated 25 July 2000 addressed to five employees including the four defendants laying down the policy for advances against wages with strict terms of repayment and providing

"Decisions on whether to approve advance payments will be completely at my discretion. Please do not assume a request will automatically be approved"

Despite this clear instruction all defendants persisted in taking cash from the "black tin" sometimes leaving an IOU in the tin sometimes not. The trial judge held in his reserved judgment at p15:

"The overall evidence in this case disclosed breaches of company policy against unauthorised advances which seemingly spiralled out of control with wholesale "borrowing" and clearly substantial misappropriation of large sums of money. All the defendants, in my view, acted in concert; all partaking with assistance and to the knowledge of the others acting similarly. I have made findings on the case against each individually. Looking at the case on the basis they were acting as parties I find them all in one way or another acted to assist each other in the commission of the offences."

In his submissions Mr Leung Wai argued that there was no evidence that the appellant received or was aware of the memo to staff (including the appellant by name) which required advances to go through the Managing Director. In his decision the Judge said.

"I accept Connor's evidence it (the memo) was brought to the personal attention of all defendants."

The only evidence in support of that statement was Mr Connor's evidence that based on enquiries he made of iris directors and the company accountant as to terms for advances to staff,

"I wrote a memo to staff in July I think setting out a policy for advances ..........."

This memorandum was put in evidence by consent and an issue was not raised at the trial whether the memo had been received by or made known to the appellant. We are satisfied that when a managing director says he "wrote a memo to staff" the judge was entitled to infer that he made it known to each of the five staff members to whom it was addressed. Accordingly he was entitled to hold,-

"In Sifaga's case I find despite her difficulties with the English language she was aware of the Company policy against advances (Exhibit 18)."

Mr Leung Wai submitted that the prosecution had not proved that the appellant had received the various sums of money stated in the informations. Nor was it proved that she personally was obligated to credit these amounts to her employer's account. The fallacy in these submissions is that the appellant was not charged individually with theft as a servant of $366,397.50 but jointly with her co-defendants.

Mr Leung Wai submitted that it was not proved that the appellant had fraudulently dealt with the money instead of banking it.

It was said by Richmond P in R v Coombridge [1976] 2 NZLR 351 (cited by the learned Chief Justice in his reserved judgment).

"... it would be open to a jury to conclude that in all the circumstances his conduct, although legally wrong, might nevertheless be regarded as honest."

Could such a conclusion have been reached by the Judge in the case of the appellant? She told Mr Connor when he interviewed her on 5 April 2001:

"I heard that Lusia and others were borrowing money. When I first started at the Telecom I heard that the others were borrowing money from the tin but I was told by Lucia I cannot borrow any cash because I can't afford to pay it back."

Nevertheless there was evidence from the witness Marie Passi Westerlund under cross-examination by Mr Leung Wai that the appellant would probably borrow $100.00 or over each week and that she had made some repayments. When asked by Mr Connor how much she owed the company she said she did not know. This is a clear admission that she was not borrowing with the honest intention of repaying a debt of a known amount but simply taking money, helping herself to her employer's funds, in common with her co-employees, until the audit and their dismissal put an end to their dishonest dealings with their employer's money.

This was a small office in which at busy times all helped one another. At times the appellant, who was the tea lady, served at the counter to give receipts for payments just as the others did. In this sense they all received the monies put into the black tin. Similarly, they all had access to the black tin and all took varying amounts from it, moneys which they all knew should be banked to their employer's credit. Once they had taken money from the black tin it obviously could not be banked to their employer's credit. Was that taking fraudulent? The judge found that it was - he said.

"I have the very clear view applying both the standards of ordinary, and decent people and of acting deliberately in breach of a legal and fiduciary obligation that she was acting dishonestly."

Those words expressly related to the defendant Sulia but the judge applied that test to the appellant and we agree that she acted fraudulently and was guilty as charged.

In conclusion we are satisfied that the ingredients of the charges against the appellant were proved, beyond reasonable doubt, including those based on inference, and were well open to him on the evidence, bearing in mind that he had no evidence from any of the accused to weigh against the prosecution evidence. There were no wrong decisions on questions of law, and no ground has been made out for this Court to find a miscarriage of justice. Accordingly the appeal against the convictions is dismissed.

We turn now to the appeal against sentence of 15 months imprisonment. The Judge took time to consider counsel's submissions on sentencing. In the course of sentencing, the Judge accepted there was no solid evidence of how much each defendant had taken or repaid. He referred to the taking of money being on a grand scale, repetitive and that the defendants had assisted each other in covering it up. He said,

"As far as you all are concerned I find the aggravating features are: a gross breach of trust, large amounts, a lengthy period of time, permitting others to do it, and failure to inform Mr Conner. In mitigation all I can find is that you are all first offenders. And as I found with Marie Westerlund I accept in the Samoan culture the stigma of your action reflect not only on you and your immediate family but your whanau which is the larger family."

When dealing with the position of each defendant he said with relation to the appellant,

"You Sifaga are 31 years old. In terms of culpability the prosecution submit you are behind Sulia but ahead of Soli. You started out as a tea lady but were later given more responsibilities. You were a regular borrower. The estimate is you owed upwards to $3.000. I take into account you have come from a broken family with little, I suspect education. You lost your parents early in life. You have 5 children, 3 of whom you are still caring for. Although 31 - without an education and with the family responsibilities you have had and the set backs in life, I am prepared to take those factors into account."

Taking into account tariffs in similar cases in the Supreme Court the Judge decided that the appropriate sentence for the appellant would be between 18 months and 2 years but he took into account the particular factors quoted above and sentenced her to 15 months imprisonment concurrent of all 8 convictions.

The appellant has submitted that this sentence is excessive having regarded to the estimate that she "owed upwards to $3,000." Mr Leung Wai contended that the appellant was sentenced on the basis that she was responsible for the entire missing sum of $366,397.50. That clearly was not the case. The Judge as we have already mentioned took into account that there was "no solid evidence" of the deficit owing by each defendant and he expressly referred to the estimate of the appellant's debt to the company of upwards to $3.000. Nor can we agree with Mr Leung Wai that the appellant should be sentenced only on a theft of up to $3,000. She was convicted of being a party to thefts totalling $366,397.50. Having regard to the aggravating features of the case and the mitigating factors which were allowed in reducing, the sentence to one of l5 months imprisonment, we do not regard that sentence as excessive. The appeal against sentence is also dismissed.

Solicitors
Leung Wai Law Firm for Appellant
Attorney General Office for Respondent