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Pitone v Police [1995] WSCA 8; 03 1995 (18 August 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 3/95
BETWEEN

DUFFY SU'A PITONE

aka TAKI SU'A PITONE
of Tuaese
Appellant
AND

POLICE

Respondent

Coram: The Rt Hon. Sir Maurice Casey, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Puni

Hearing: 14 August 1995

Counsel: T.K. Enari for Appellant
Marion Bailey for Respondent

Judgment: 18 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

On 1 May 1995 Duffy Su'a Pitone was sentenced to four years imprisonment for stealing $50,000 from the Central Bank of Samoa and he appeals on the ground that it is manifestly excessive. He was originally charged with theft as a servant under Sections 85 and 86(1)(g) of the Crimes Ordinance 1961, carrying a maximum sentence of 7 years' imprisonment, but this was amended to simple theft under s. 86(1)(d) thereof, with its maximum of five years. The appellant pleaded guilty to the lesser charge.

According to the prosecution summary of facts, he was employed by the Bank as a building technician and on 11 March 1994 was asked to supervise outside contractors doing construction work in the vault. Bank security staff were also there. On the spur of the moment he stole a bundle of $100 notes from a shelf and took it home where he hid it in the back of an unused family TV set.

Until he was interviewed by the police on 23 March 1994, he had spent or disposed of some $25,000. He showed them where the balance of the money was in the TV, from which they recovered $21,800. Some goods purchased with the stolen money were recovered and sold by the police and the proceeds paid to the Bank, along with the sum of $1200 received from the appellant's mother making a total of $24,810 in all. It appears no other reparation is possible.

The appellant had a previous conviction for theft as a servant in 1990 involving $120 which was repaid, and he was convicted and fined. Although this may seem a comparatively minor offence, it is disturbing to note that in spite of the warning presented by that conviction, he gave in so readily to temptation on this occasion. Even more disturbing is the breach of the trust imposed in him by the Bank, and the suspicion that his theft must have cast on his fellow workers.

In his sentencing remarks the Chief Justice took into account the appellant's good academic record and the esteem in which he was held by his family and church. He is 28, married, with five young children and the probation officer reported favourably on him, stressing the hardship his wife and family would suffer if he were to be imprisoned. However a substantial prison term was inevitable for a theft of this magnitude, and in fixing it at four years the Chief Justice took into account these mitigating factors, along with the appellant's expression of remorse and plea of guilty, and the fact that half the amount had been recovered, although this happened only after the police had confronted him with the offence. His conviction must have been inevitable, so no substantial reduction of sentence is warranted on account of the guilty plea.

From his sentencing remarks, it is apparent that the Chief Justice overlooked the reduction of the charge to simple theft, and treated the maximum prison term as one of seven years for theft as a servant when he fixed four years as appropriate. It seems very likely that his sentence would have been significantly less had he realised the maximum was only five years. We think this misunderstanding calls for the exercise of a fresh sentencing discretion on our part. After taking into account the foregoing matters, including those which influenced the Chief Justice, and giving due weight to Mr Enari's submissions, we conclude that an appropriate prison term should be three years.

The appeal is allowed: the term of four years is quashed and in its place the appellant is sentenced to three years' imprisonment.

Solicitors:
Apu & Enari, Apia, for Appellant
Attorney-General's Office, Apia, for Respondent