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Police v Faleatua [2002] WSCA 7; 04 2002 (2 December 2002)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 4/2002.

IN THE MATTER
of the Judicature Ordinance of Samoa

AND

IN THE MATTER
of an appeal pursuant to Section 164L of the Criminal Procedure pct 1972 of Samoa

BETWEEN

POLICE
Appellant

AND

MISIOLO FALEATUA
Respondent

CHARGE
THEFT AS A SERVANT

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

Hearing: 27 November 2002

Counsel: Mr R Mr R. Schuster and Ms Sesilia Eteuati for the Appellant
Mr A P Petaia and Mr F A M Ropati for the respondent

Judgment: 2 December 2002

JUDGMENT OF THE COURT

The appellant has appealed against a sentence of 6 months imprisonment imposed on the respondent for theft as a servant of $42,715.95 as being manifestly inadequate.

The respondent was 26 years of age, a single man, who was employed by the National Bank of Samoa at Salelologa Savaii. The facts upon which sentence was based are set out in the appellant's submissions as follows,

"4.1 the defendant was number no. (2) to the branch manager of the National Bank of Samoa in Savaii:

4.2 the defendant was instructed by his superior, the branch manager, to deposit certain monies in different accounts;

4.3 the defendant then acted on instructions from his superior and deposited monies in different accounts and those monies were taken by a fellow employee except for the sum of $400, which was taken by the branch manager.

4.4 the defendant pleaded guilty to the charge.'

On his sentencing remarks the Chief Justice said:

"The defendant has admitted to taking, the sum of $42,415.95. Usually, the Court would impose a sentence of imprisonment in the region of 3 years for a theft of this kind of money. But the defendant, from what he related to the probation service and what his counsel has submitted to the Court, had relatively little culpability or moral blame in this matter.

If the defendant was a junior employee of the National Bank at Savaii, I would have been disposed not to impose a sentence of imprisonment. But he was number two to the branch manager and he must have known what he was doing was wrong even though he was acting on instructions from the branch manager and notwithstanding that he gained no benefit from the money that was stolen. I would accept what his counsel submitted to the Court that if the Court is disposed to impose a custodial sentence, then a relatively short one be imposed.

I also take into account mitigation the defendant's plea of guilty to the charge against him. That is in, addition to the fact that he was acting on branch manager when this matter happened. Furthermore he obtained no benefit from the money that was stolen.

I also take into account the defendant's personal circumstances, as set out in the probation report and what is said in the testimonials that have been filed together with the probation report. Notwithstanding the fact that the amount involved is more that $40,000,which usually carries an imprisonment term of 3 years, the involvement of this defendant in this matter would not warrant such a lengthy term of imprisonment.

The defendant is convicted and sentenced to six (6) months imprisonment."

In those passages the Chief Justice took into account both the aggravating and mitigating aspects of the case. The appellant submits that the sentence of six months imprisonment was manifestly inadequate in the following circumstances.

"16.1 in relation to previous decisions handed down by the Supreme Court of Samoa against offences of this nature:

16.2 in that it did not reflect the nature of the criminal act and the weight the court places on a breach of trust in employer/employee relationships: and

16.3 in that the sentence does not give sufficient weight to the need for general deterrence for this type of offending."

The appellant stressed that the sentence fell short of emphasizing the importance of deterrence and prevention by placing too much weight upon the mitigating factors in this case. But the importance of a deterrent sentence in cases of dishonesty by employees in positions of trust, was demonstrated by the sentence of 6 years imprisonment imposed on the branch manager for his theft of $143,500 of the bank's funds. That left the way clear for the Chief Justice to show such mercy as he could for the special circumstances of the respondent.

The appellant accepted the Judge's starting point of 3 years imprisonment for a theft of the amount involved. That the Attorney General has appealed a sentence of six months imprisonment is understandable. However, although short as the term of imprisonment may be, the respondent has had a bright future ruined by a dishonest superior and the stigma of his conviction for theft, as a servant will have a lasting adverse effect on his future.

In R v Cargill [1990] 2 NZLR 138 in delivering the judgment of the Court of Appeal in New Zealand Cooke P (as he then was) at p 140 said,

"Appeals by the Crown against sentence are not for borderline cases. Their legitimate scope is confined to cases where there is solid ground for treating the sentence as manifestly inadequate or inappropriate. The right of a sentencing Judge to show mercy in the special circumstances of a particular case must always be borne in mind."

There are special circumstances in this particular case. We are satisfied that this is an exceptional case in which the lenience recommended by the Probation Service and the mitigating features of the case taken into account by the Chief Justice, justified the mercy shown to the respondent. We are not prepared to interfere with the exercise of the Chief Justice's discretion by increasing the sentence.

The appeal against sentence is dismissed.

Solicitors
Attorney General's Office for Appellant
Petaia Law Office for Respondent