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Police v Edwards [2013] WSSC 122 (21 August 2013)

SUPREME COURT OF SAMOA

Police v Edwards [2013] WSSC 122

Case name: Police v Edwards

Citation: [2013] WSSC 122

Decision date: 21 August 2013

Parties: POLICE (prosecution) and NOAH EDWARDS male of Lepea and EMI TAUMATEINE female of Nofoalii

Hearing date(s): 4 – 7 June 2013 and 10 – 11 June 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution
T Leavai for first named defendant
K Enari for second named defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss. 85, 86 (g)(1)
Criminal Procedure Act 1972, s.113

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

NOAH EDWARDS male of Lepea and EMI TAUMATEINE female of Nofoalii

Defendants

Counsel: L Taimalelagi for prosecution

T Leavai for first named defendant

T K Enari for second named defendant

Hearing: 4 – 7 June 2013 and 10 – 11 June 2013

Reasons for Decision: 9 July 2013

Sentencing Hearing: 19 August 2013

Sentence: 21 August 2013

Charges: Theft As a Servant, Party to Theft As a Servant

SENTENCE OF SLICER J

1. Noah Edwards and Emi Taumateine have been convicted of the crimes of party to theft as a servant and Noah to the additional crimes of theft as a servant contrary to the Crimes Ordinance 1961 sections 85, 86 (g)(1). There is no distinction between the two classes of crimes except that Noah benefited directly from some of his offences and each permitted others to benefit or share at the expense of the employer.
2. The crimes were committed between 28 October and 1 November 2011. Each was an employee of Farmer Joe Supermarket and the crimes committed in their tasks as cashiers.
3. The facts giving rise to the convictions are set out in the Reasons for Decision published on 9 July 2013, and require no detailed repetition.
4. Emi was found guilty of sixteen acts of dishonesty involving the amount of $302.75.
5. Noah was found guilty of twenty-two acts of dishonesty involving the amount of $684.19.
6. Some but little difference will be made between each defendant based on the amount stolen.
7. The Court accepts that there had been a culture of dishonesty within the supermarket whereby staff would help co-employees to purchase items either at a discount or by reducing the number of items scanned.
8. Evidence was given at trial that there had been a culture of dishonesty within the supermarket which employed him and that between thirty and thirty-five employees had been dismissed as a result of an investigation into repeated acts of fraudulent conduct. When normal trading ceased, staff were permitted to do their own shopping and many of those transactions were not scanned through the check-out system or entered without authority at a discount as damaged items. In five instances the defendant processed items solely for his own benefit and seventeen jointly with co-employees.
9. These offences were committed between late October and 1 November, and the misconduct of the offender discovered as a result of electronic surveillance and investigation. The value of the goods stolen or undercharged amounted to $684.19.

Pre-Sentence Report – Noah Edwards

10. Noah Edwards is aged twenty-four. He completed his education at Leifiifi College but left before he completed Year 12 and later completed Years 12 and 13 at Wesley College. He entered the Faculty of Education Programme at the National University of Samoa but left before completion. He commenced work as a cashier at Farmer Joe’s until dismissed as a result of these proceedings. He is, at present, unemployed although he had some work at an Apian hotel. His employer has provided him with a good reference and described as a reliable and hardworking person.
11. He maintains his innocence and there has been no reconciliation.
12. This is his first offence.

Commencing Point

13. The prosecution submits the commencing point to be that of imprisonment. It has referred to a large number of cases involving thefts from supermarkets with equivalent amounts. However the prosecution points out that in most cases the defendant was entitled to the benefit of his or her plea of guilty. That fact supports the prosecution’s submission that there has been no remorse or reconciliation and no benefit of a plea of guilty. The conduct was a breach of trust, the acts of thefts repeated and the amount taken almost $700.00.
14. The commencing point is that of six months imprisonment. One half of that will be discounted because he is a first offender and had proved to be a good employee in another position.
15. He will be subject to a probation order following his release from prison.

Emi Taumateine

16. Emi Taumateine was involved in fewer acts of dishonesty, amounting to $302.72. Each of her transactions involved benefit to a co-employee, a matter slightly different from her co-defendant Noah. When interviewed by police she admitted her involvement and told them:

“Sir, the other people doing the same things are the packer who packed the goods at Farmer Joe.”

and in relation to one transaction she believed in what the co-employee had said but she had acted ‘with full understanding’. She understood that the practice was unauthorised and in the following exchange responded:

“Q38 So why did you do this?

A38 I imitate the other female cashiers.”

17. She agreed that the practice had been going on for a long time. Emi is entitled to the benefit of full cooperation with investigating police. It is not necessary to state the details of that cooperation.
18. Although Emi is not entitled to the benefit of a plea she is entitled to the benefit of cooperation and ought be dealt with differently from her co-defendant.

Pre-Sentence Report – Emi Taumateine

19. Emi Taumateine is aged twenty-three. She is the third of six sisters. She completed Year 13 in 2009 and worked for four months before traveling to New Zealand under the Seasonal Workers Scheme. She commenced work at the supermarket in July 2011 but was dismissed following discovery of these crimes.
20. Emi married in 2012 and has one daughter aged five months. She has shown herself to be of good character, serves as a Sunday school teacher and is active in church activities.
21. She is a first offender. She has twice approached her employer to apologise and has shown remorse. The Probation Service seeks the Court’s mercy when passing sentence.

Commencing Point

22. The prosecution seeks as a commencing point an actual term of imprisonment. She will be dealt with differently from Noah since the number of charges and amounts stolen are less. The commencing point will be that of four months imprisonment. She is not entitled to the benefit of a plea of guilty.

Sentence

23. Again the defendant will be dealt with differently from Noah. This is because:
    • (1) She has apologised to her employer;
    • (2) She acknowledges her responsibility and shown remorse; and
    • (3) She has the care of a young baby and it is not in the public interest that the baby be left outside of the mother’s care.
24. She will be given a suspended sentence.

ORDERS:

Noah Edwards

(1) Noah Edwards is convicted of the crime of Theft As a Servant.
(2) Noah Edwards be sentenced to a term of imprisonment for a period of three (3) months, such sentence to commence as and from 21 August 2013.
(3) Noah Edwards be subject to supervision by the Probation Service for a period of twelve (12) months as and from his release from prison.

Emi Taumateine

(1) Emi Taumateine is convicted of the crime of Theft As a Servant.
(2) In accordance with the Criminal Procedure Act 1972, section 113 Emi Taumateine is to appear before the Court for sentence if called upon within twelve (12) months. It is a condition of the order that she commit no crime or offence of dishonesty within that period.

..............................

(JUSTICE SLICER)