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Police v Samau [2010] WSSC 163 (12 November 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

SEMI SAMAU, male of Matautu, Apia & Lotopa
Defendant

Presiding Judge: Justice Slicer

Counsel: L Su'a-Mailo and L Taimalelagi for prosecution
S Perese and S Tuala for defendant

Hearing: 27-30 September, 1, 4-8, 26 October 2010

Sentence: 12 November 2010

Charge: Theft As A Servant, Dishonest Dealings and Falsifying Documents

SENTENCE

1. Semi Samau has been found guilty of ten charges of theft as a servant, dishonestly obtaining money as a servant and the falsification of documents contrary to the Crimes Ordinance 1961 ("The Ordinance"), sections 85, 88, 99. He was acquitted of four charges involving alleged dishonesty. A fifth Information framed as an alternate charge was dismissed.
   
2. The facts and their surrounding circumstances giving rise to the verdicts are stated in the Reasons for Decision delivered on 26 October 2010. This sentence is based on the findings and verdicts of the court returned on that date.
   
3. The maximum penalty provided by The Ordinance for the crime of theft as a servant is that of 7 years imprisonment. The court would be entitled in law, to impose consecutive or cumulative sentences on each charge resulting in a higher sentence (The Criminal Procedure Act 1972, section 11). The court will regard 7 years as the commencing point for the fixing of the ultimate sentence. That commencing point, of itself, is of great benefit to the offender. Any claim by the defendant that the sentence imposed is excessive in that it is close to the maximum permitted sentence overlooks the fact that a far higher sentence could have, subject to the principle of totality, been significantly higher (see generally: Pearce v R (1998) 194 CLR 601). In this case some of the charges formed part of the same transaction and either a concurrent or single sentence will be imposed for the transaction rather than its components. In his Principles of Sentencing, 2nd ed. (1979) Thomas states:
   

"...where two or more offences are committed in the course of a single transaction, all sentences in respect of those offences should be concurrent rather than consecutive."

4. He regards that approach as appropriate since the conduct constitutes a single invasion of the same legally protected interest. The Australian authors Fox and Frieberg (Sentencing, State & Federal Law in Victoria, 2nd ed. OUP Melbourne, 1999) take a similar approach stating at 714:
   

"It is generally accepted that when a number of offences arise out of substantially the same act, circumstances or series of occurrences, the presumption of concurrency should be permitted to run its course."

5. Cumulative sentences are, however permitted, provided they reflect the gravity of the total criminal conduct but which take into account the total effect of the sentence on the offender (Mill v R [1988] HCA 70; 1988 166 CLR 59). The test applied in Griffiths v R (1989) 167 CLR 610 was that earlier adopted in Attorney General v Tichy (1982) 30 SASR 84, when Gaudron & McHugh JJ approved at 45-49 the passage in Tichy:
   

"The essential thing to be born in mind is that if the sentences are mad consecutive there must be no overlapping of the factors brought into account in determining the length of the sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the head sentence."

6. Here the commencing point of 7 years itself represents a significant amelioration of a possible and permitted higher sentence. There were a number of distinct acts of theft and fraud committed over a number of years involving different parties and methods of dishonesty.
   
7. Counsel for both parties specifically requested the court to impose identified sentences in relation to each transaction whilst arriving at an appropriate overall sentence although they differed as to severity of that ultimate sentence. The reasoning was that if there were to be a successful appeal against the verdicts returned on a particular transaction, the appellate court would not be required to consider the entire sentencing exercise afresh. The court accedes to their request but notes that it has made the task of this court more difficult.
   
8. The approach taken by the court will be:
   
   • (1) Each of the five transactions will be identified and considered and a single sentence or concurrent sentences imposed.
     
   • (2) The components of each transaction will attract a single or concurrent sentence.
     
   • (3) There will be differences between the sentences reflecting the amount of loss, the degree of culpability in planning and execution, repetition and the like.
     
   • (4) The mitigating characteristics including character, prior good conduct, restitution, future prospects restitution and the like will be applied to each case.
     
   • (5) Aggravating factors such as breach of trust, position held by the servant and absence of remorse will be relevant to each transaction.
     
   • (6) The issue of health, the effect of imprisonment and the absence of prison resources will be separately considered.
     

CONSISTENCY IN SENTENCING

9. The courts attempt a consistency in sentences for like crimes and circumstances. The human experience shows it to be impossible to provide exactness. The prosecution has provided a useful guide to a range of sentences imposed in cases of this nature. The court has reviewed those decisions and ones provided by counsel for the defendant.
   
10. While many courts are reluctant to be bound by 'tariffs' they pay regard to 'the range of penalties imposed in the past and standardisation of penalties is an accepted policy of Courts of Appeal (Griffiths (supra); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321). This is especially so when the appellate courts are dealing with grounds of manifestly excessiveness or inadequacy. Error may be inferred from the fact that the sentence is 'unreasonable or plainly unjust' (House v The Queen (1936) 55 CLR 499; Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509).
    
11. This court has considered a number of Samoan authorities which include Police v Alofa Lefata, Nelson J unreported; Police v Poiva Taiti Faiga [2007] WSSC 43; Police v Taylor Miti, unreported 26 July 2010 and Police v Sio Fepuleai, unreported 8 July 2009), in an attempt to achieve some degree of parity. It is also considered the range of penalties as recorded in the Sentencing Chart 'Theft as a Servant' provided by the prosecution. They are useful guides but this court must determine the appropriate penalty for this offender within the appropriate guidelines or range.
    

General Circumstances and Sentencing Principles

12. Samau was and remains a legal practitioner, a sworn officer of the court in whom the community was entitled to trust. The court rejects the competing submissions that:
    

(a) the reputation of the profession as a whole has been tarnished and warrants a more severe penalty; and

(b) the discovery of his misconduct enhances the confidence in the profession since it shows that lawyers can be found out and disciplined by the legal profession.

13. The simple answer is that Samau betrayed the ethics of his profession. He misused his skills to achieve personal gain. The community was entitled to trust his professional integrity and he betrayed that trust. That betrayal is an aggravating matter.
    
14. Samau was employed as a senior officer by the Development Bank of Samoa. He was the manager of the legal and recovery section of the Bank. His duties are as stated in the Reasons for Decision at paragraphs 10, 11. He betrayed the trust of the Board, his General Manager and other officers of his employer. This was a grave breach of trust as a servant. He used his skills, legal training, and knowledge of the procedures and operations of the Bank to manipulate records, falsify documents and data recording systems.
    
15. The eventual loss to the Bank is said by the prosecution to be $134,000. There had been restitution amounting to $60,000 which will be separately considered. But the actual loss to the Bank was significantly greater since the calculation does not take into account interest foregone or lost or any cost of compensation to clients whose accounts had been altered.
    
16. The prosecution also asked the court to take into account, as an aggravating factor the costs to the Bank of its investigation amounting to $106,000. The court will not take that factor into account. But it does take into account the complexity of the crimes and their methods of execution. The factor that a crime is difficult to detect by reason of sophistication is a relevant matter which, in part, is what counsel was really contending.
    
17. The above observations are to the advantage of the offender (see: paragraph 3).
    
18. In assessing the severity of the conduct, the amount of money or value of the property, the number of transactions involved, the length of time over which the dishonest behaviour continued and the amount of restitution are important considerations.
    
19. The crimes were committed by a legal practitioner who by his calling and authority occupied a privileged position in society. That privilege carries with it responsibility. In cases involving dishonesty by a legal practitioner general deterrence plays a substantial role in an attempt to ensure the maintenance of a high standard of conduct in the profession.
    

Victim Impact

20. The prosecution provided a Victim Impact statement on behalf of the Development Bank of Samoa. The court accepts its general tenor. But the economic impact on the Bank is far less than that which would be suffered by an individual, sole trader or small business. The Bank has retained, despite the conduct of one of its senior officers, its economic strength and reputation. The statement is relevant to sentence but compared with other sentencing principles given but little import.
    

Remorse and Plea

21. Remorse after the offence is a mitigating factor but it must be indicated in a convincing way to be genuine. In evidence at trial, the defendant merely accepted responsibility for the mistakes or misunderstandings of others. His letters to the Bank and a Member of Cabinet sought intervention but did not themselves, demonstrate remorse. Contrition or remorse can sometimes indicate that an offender might be able to understand the harm caused and try and improve conduct. In some cases it is but ritual. Here no remorse has been shown other than a regret that he did not sufficiently supervise others. No allowance will be made for this as mitigation.
    
22. The prosecution claims that the length and expense of the trial ought to be regarded as an aggravating matter. The contention is rejected. The criminal justice system has long afforded the right of a plea of not guilty and to require the prosecution to prove guilt. It would betray that principle if a person exercising the right to punish a person more harshly if found guilty.
    
23. Courts permit a mitigation of penalty following a plea of guilty for many reasons such as the sparing of a victim further trauma and including pragmatic or utilitarian reasons of cost to the State in investigating and prosecuting an offender (R v Shannon (1979) 21 SASR 442; Winchester v The Queen (1992) 58 A Crim. R 345; Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas. R 186). But that is a different principle. The converse does not apply.
    

Prevalence

24. Prevalence of an offence either generally or in a particular group or locality is regarded as a matter which it is proper to take into account on the grounds of seeking a general effect. The need to satisfy public expectations of denunciation is a further basis upon which prevalence is regarded as justifying increased penalties (R v Everett & Phillips [1994] TASSC 39; (1994) 72 A Crim. R 422; R v Everett [1994] HCA 49; (1994) 181 CLR 295). Notorious difficulty of detection is another matter to be considered in association with prevalence. The material supplied by the prosecution establishes that crimes of commercial fraud are prevalent in Samoa. Prevalence, community expectation and difficulty in detection will be taken into account as relevant matters.
    
25. The prosecution sought to add a further component to the prevalence factor by submitting that there had been an increased prevalence of 'white collared crime' which ought to be reflected in the sentence. The predominant weight of authority in Australia favours the view that if a particular sentencing standard is too low for reasons, which include increased prevalence; it can only be raised after due warning and then only gradually (Barber v The Queen 1976 14 SASR 388; Poyner v The Queen 1986 ALR 264; Breed v Paice 1985 36 NTR 23). Moreover there ought to be objective and testable data or statistics of any claimed increase rather than an assertion by the prosecution or a small sample of cases brought to trial. If the Attorney General of Samoa wishes the courts to increase the range of penalties through the medium of increased prevalence, rather than by statute, more material than was submitted here is required.
    
26. The court accepts the argument of prevalence but is not satisfied, on the data provided, that this sentence ought to reflect increased prevalence. That point can await another day.
    

Delay in Prosecution

27. The offences were committed between 1999 and 2002/3. The methods used by the defendant were skilful and complex. The defendant had disguised his crimes through his knowledge of the Bank's procedures and the misplaced trust of his General Manager and other officers of the Bank. The records suggest that he was the last person to share possession of crucial files. It was not until an intending purchaser showed interest in purchasing the Blakelock property that the Bank became aware that its own property had been sold. The defendant did not answer the questions put by the Bank in their letters. Two of the possible witnesses lived in Australia and the U.S. resident had died. The Bank promptly commenced internal audits which uncovered other irregularities. A report was made to the Board and the defendant tried unsuccessfully to have political pressure put on the Bank to prevent prosecution. There was a police investigation and a referral to the Attorney General in 2008.
    
28. The defendant obtained bail to travel to New Zealand in 2010. The trial commenced on 23 September and the hearing concluded on 8 October. Reasons for Decision (171 paragraphs) was delivered on 26 October.
    
29. The defendant cannot complain of delay.
    

Co-operation

30. No allowance is made for assistance to the Bank, the auditors, recovery of documents or files, or assistance to investigating police.
    

CHARACTER AND PERSONAL CHARACTERISTICS

31. The defendant produced evidence of good character from prominent and respectable citizens. The court accepts the integrity of those referees. But his good character ceased in 1999. He has not reclaimed it by good works for his community or voluntary service for his country. He may be competent but his works are for gain.
    
32. The court accepts that he is a good family member and provider for his family.
    
33. In cases of abuse of a position of trust, good character and an absence of prior convictions are typical and have little weight because of the expressed need for a general deterrent sentence (see: Warner (supra) 12.205).
    
34. He will suffer through imprisonment and doubtless his future and family will be harmed through imprisonment. But an immediate intention to repay, financial loss to the offender and person humiliation do not have significant weight, for they are all factors commonly encountered in cases of theft from an employer involving deception of a period of time (Warner (supra) 12.205).
    

THE TRANSACTIONS

35. The court will identify the acts of theft and fraud in the manner applied in the primary judgment of 26 October. It is not necessary to state here the methods used by the offender or the findings made in those Reasons.
    
36. The court will apply the aggravating and mitigating matters already stated in its assessment of these penalties. It will identify aggravating and mitigating matters specific to each transaction if applicable.
    

The Blakelock Sale

37. The offences occurred in 2000, and involved the fraudulent sale of land owned by the Bank for a return of $40,000. The method used was relatively sophisticated. When the dishonesty was uncovered the defendant immediately paid to the Bank that sum claiming mistake rather than admitting criminal conduct. The payment and accompanying letters were evidence, not of remorse, but an attempt to defuse the 'problem'. He subsequently paid a further sum of $20,000 as compensation for interest forgone, a sum less than demanded by the Bank.
    
38. He will be afforded a significant discount in penalty for that restitution.
    
39. The appropriate penalty is that of 9 months imprisonment to commence as and from 26 October 2010.
    

The Talamaivao Transaction

40. These offences involved the theft of $11,500 in February 2002. The offences required the issuing of a false and unrecorded receipt, and falsification of documents and records.
    
41. The amount might be relatively minor but this was not the first occasion of deceit and the use of a sophisticated method requiring planning.
    
42. There has been no restitution.
    
43. Apart from the sum involved there are no mitigating matters specific to this transaction.
    
44. The appropriate sentence is that of 6 months imprisonment to be consecutive and cumulative to the Blakelock matter.
    

The Pasia Milford Transaction

45. These transactions involved theft of at least $25,000 in August-October 2002. The scheme involved multiple acts of duplicity, planning and deception of a number of people; landowners, bank officers and the General Manager.
    
46. There has been no restitution.
    
47. The loss suffered by the Bank is greater than the sum stolen. There are no mitigating factors specific to this matter.
    
48. In relation to Information S1731/10, he is convicted and sentenced to 6 months imprisonment, such sentence to be consecutive and cumulative to the Talamaivao transaction.
    

The Fruean Account

49. Two of the Informations (S1733/10 and S1801/10) were dismissed. He was convicted of forging the signature of the General Manager on 30 March 2000. At best the transactions resulting in the acquittals (reasonable hypothesis consistent with innocence (Chamberlain (No.2) [1984] HCA 7; (1984) 153 CLR 521) were but attempts to cloak or cover up for other dishonest transactions. The General Manager was the only person authorised to sign the conveyance.
    
50. In relation to Information S1725/10, the sentence is one of 3 months imprisonment to be consecutive and cumulative to the sentence imposed in the Pasia Milford transaction.
    

The Fruean/Collins Account

51. This is the most serious single charge. The transaction commenced in October 1999 and the original advice offered by the defendant was proper. The dishonesty commenced in the following month and continued until the lodgment of a false and forged document in May 2003.
    
52. The direct loss to the Bank was $59,280.
    
53. Numerous acts of forgery, creation of false accounts, falsification of reconciliations, betrayal of a solicitor/client relationship, forgery of a client's signature and the persistent attempts to cover up the dishonesty require the most significant penalty.
    
54. Whatever small allowance which could be made for a 'first offence' is offset by the length of the fraudulent conduct, from November 1999 until June 2003.
    
55. There has been no restitution.
    
56. There are no mitigating matters specific to these charges.
    
57. The defendant is sentenced to a term of imprisonment for a period of 3 years, such sentence to be cumulative to those already imposed.
    

HEALTH

58. Counsel submits that a significant discount of sentence should be given because of the ill health of the defendant. Dr. Sam Fuimaono of Auckland has provided a detailed report of 4 November 2010 detailing the following illnesses or conditions which will be worsened if not properly treated or managed.
    
59. Those conditions are listed as:
    

Atrial Fibrillation

Mild to moderate left ventricular impairment

Severe coronary artery disease

Haematuria with history of renal stones

Polycythemia secondary to obstructive sleep apnea

Gout

Hypertension

60. Medical records were attached to the report. Dr. Fuimaono is of the opinion that a number of these conditions are life threatening.
    
61. The medical report and records disclose that the defendant requires medication on a regular basis. He was admitted to hospital on 2 March 2010 and discharged two days later. Advice was given to his GP. for ongoing treatment and four of his medications stopped because of improvement in his condition.
    
62. The discharge notes relating to his history of haematuria and renal stones, the report states:
    

"Discussed with patient including the need for lifestyle changes including healthy died and regular exercise.

No further concerns at time of discharge. Patient ready for home.

Discharge Plan:

1. Discharge to care of GP.
2. No formal cardiology follow-up.
3. Medication changes as indicated in script.
4. Patient to discuss with GP on return to Samoa regarding starting Warfarin.
5. Not for ACE as induces chronic cough."
   
63. The Cardiac Discharge notes:
    

"4 We have not arranged any formal cardiology follow up. Please see your GP we have let them know not to hesitate to refer you back to us if required."

64. The Echocardiogram conducted on 2 March 2010 reports:
    

"moderate LV dilation for BSA, mild global LV impairment, mild to moderate LVH and moderate LA dilation."

65. The Anglogram Test undertaken on the same day records:
    

"diffuse luminal coronary disease with quite marked dilation of the vessels. There is severe lesion in the distal LAD just before the bifurcation. There are no other flow stenoses."

66. No report indicates the need for immediate, intense intervention such as a transplant or by-pass surgery.
    
67. There is little doubt that the defendant will face a difficult time. But many have health problems.
    
68. The medical report and records were relied on by counsel in three ways as:
    
    • (1) providing a basis for an immediate grant of bail pending sentence. This was refused by the court.
      
    • (2) permitting the court to impose but a nominal sentence of imprisonment; if at all.
      
    • (3) supporting a foreshadowed application for bail after the lodging of an appeal against convictions and sentence.
      
69. The contention is based on comments by Nelson J in the two decisions of Police v Letumau Milo [2007] WSSC 36 and Police v Fepuleai Sio Lelei [2010] WSSC, unreported 8 July 2009. In the latter case, His Honour having considered two Australian and English cases observed:
    

"I have been unable in the short time available to locate any relevant Samoan authorities and neither have any been cited to me by either counsel. But there is additionally one glaring factor that differentiates the Samoan situation from elsewhere, and that is the poor condition of our two national prisons, at Tafaigata in Upolu and Vaiaata in Savaii. Of the two, Vaiaata in Savaii is probably marginally better. The court is well familiar with the conditions that exist at Tafaigata prison and the lack of medical and other necessary facilities. Sending a person in this condition to a prison in that condition is a troubling proposition to say the least. It troubles me enough to give me pause."

70. The court accepts that there is no hospital or modern infirmary at Tafaigata. It accepts that imprisonment will not be easy for a person with a medical condition. But it notes that there is a good and efficient hospital at Motootua. It also notes that in many instances Samoan people suffer from heart and kidney problems which require specialised treatment in New Zealand and Australia and can be promptly air lifted in cases of emergency.
    
71. While ill health or disability is relevant to sentence, it is not a licence to commit crime and it will not allow an offender to escape punishment for serious crime. In Smith v The Queen (1987) 44 SASR 587, the Court of Criminal Appeal stated:
    

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have on the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

72. The principle stated by King CJ in Smith (supra) was endorsed by the High Court of Australia in Bailey v The Queen (1988) 34 A Crim. R 144. It has been followed in other jurisdictions (McDonald 1988 38 Crim. R 458; Eliason 1991 53 A Crim. R; Todd [1976] Qd. R 21 and Britten [2001] TASSC 28). Many of those cases involved AIDS victims who posed particular problems for prison administrations. In Fepuleai (supra) Nelson J cited the relevant principles stated in R v Bernard [2010] EWCA Crim 2327; [1997] 1 Cr. App R 135, which stated as the third and fourth principles:
    

"(iii) a serious medical condition, even when it is difficult to treat in prison, will not automatically entitle an offender to a lesser sentence than would otherwise be appropriate...;

(iv) an offender's serious medical condition may however enable a Court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle to impose a lesser sentence than would otherwise be appropriate."

73. Nelson J was able to order a non-custodial sentence for reasons over and above the 'health factor' namely the amount involved $6,841 and the outstanding record of service to the community by the offender over a 40 year period.
    
74. While illness is relevant and might ameliorate the penalty it does not permit a non-custodial sentence in a serious case.
    
75. Here the seriousness of the crimes especially their repetition and breaches of trust require a significant penalty. An overall penalty of 7 years or more imprisonment would be justified. The effective sentence is that of 5 years. That reduction includes allowance for the greater difficulty caused through the medical condition.
    
76. There is a second and important reason why the health issue should be of lesser import even though the prison facilities are less than those which can be afforded by a more affluent country. The International Transfer of Prisoners Act 2009 ("The Act") was proclaimed to commence on 1 December 2009.
    
77. The defendant, a Samoan citizen, has been a resident in New Zealand. The Act Part III permits the transfer of a prisoner from Samoa. If health is a serious problem and necessary facilities can only be provided elsewhere, the Act permits transfer, whilst serving his sentence.
    
78. In any event, it is the responsibility of officers of the prison to ensure his health and treatment. It is their responsibility to arrange for transfer for a necessary operation or treatment.
    
79. Allowance has been made for health in accordance with sentencing principle. Other than restitution there were few significant mitigating matters. The reduction of a 7 year (or greater) overall sentence to 5 years reflects a significant discount for the health problems of the defendant. It is an amelioration but a significant sentence is still warranted.
    

ALTERNATE METHODOLOGY

80. Had the court been requested to impose a single sentence and adopt an identical starting point of 7 years; then allowing for the mitigating effects and the health equation, the court would have allowed a discount of 2 years resulting in an identical actual sentence of 5 years.
    

ORDERS

(1) The defendant is convicted of the crimes comprised in Informations S1725/10, S1727/10-S1732/10, S1799/10, S1800/10 and S1803/10.

(2) The defendant is acquitted of the crimes comprised in Informations S1724/10, S1726/10, S1733/10 and S1800/10.

(3) Information S1802/10 is dismissed.

Blakelock Sale

(4) In relation to Information S1727/10, S1730/10 and S1800/10, Semi Samau is sentenced to a term of imprisonment for a period of 9 months, such sentence to commence as and from 26 October 2010.

Talamaivao Transaction

(5) In relation to Information S1729/10 and S1803/10, Semi Samau is sentenced to a term of imprisonment for a period of 6 months, such sentence to be cumulative to that imposed in Order (4).

Pasia Milford Account

(6) In relation to Information S1731/10, Semi Samau is sentenced to a term of imprisonment for a period of 6 months, such sentence to be cumulative to that imposed in Order (5).

Fruean Account

(7) In relation to Information S1725/10, Semi Samau is sentenced to a term of imprisonment for a period of 3 months, such sentence to be cumulative to that imposed in Order (6).

Fruean/Collins Account

(8) In relation to Information S1728/10, S1732/10 and S1799/10, Semi Samau is sentenced to a term of imprisonment for a period of 36 months, such sentence to be cumulative to that imposed in Order (7).

(9) The total cumulative period is 60 months or 5 years imprisonment to commence as and from 26 October 2010.

(JUSTICE SLICER)