SUPREME COURT OF SAMOA
Police v Banse [2015] WSSC 31

Case name: 	Police v Banse	
		
Citation: 	[2015] WSSC 31	
		
Decision date: 	30 January 2015	
		
Parties: 	Police (prosecution)
Pauline Banse (defendant)	
		
Hearing date(s): 		
		
File number(s): 	S376/14	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Mulinuu	
		
Judge(s): 	Justice Vaai	
		
On appeal from:		
		
Order:	For this offence, the defendant is convicted and placed on probation for 12 months on condition that you do 40 hours community service.  You are also ordered to pay prosecution costs of $1,000, to be paid at the rate of $200 per month.  The first payment to be made on 27 March 2015.

Representation: 	L Suá-Mailo for prosecution
R V Papalii for defendant 	
		
Catchwords: 	Theft as a servant – genuine mistake	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

	PAULINE BANSE female of Malie and Afega
Defendant

Counsel:	L Su’a-Mailo for prosecution
R V Papalii for defendant 

Sentence:	30 January 2015

S  E  N  T  E  N  C  E
1. 	The defendant appears for sentence on the charge of theft as a servant of which she is liable to 10 years imprisonment.  
2. 	The prosecution is seeking a sentence of imprisonment to commence from 3 years.  The sentence to be imposed by this Court is not only to deter the defendant but also to deter other likeminded people from committing the same offence.  As this offence is on the rise the prosecution has fairly asked for a custodial to be imposed.  
3. 	The defence, on the other hand, are seeking a non-custodial sentence.  She has submitted several factors favourable to the defendant which the Court should consider and which she wishes the Court to accept so as not to impose a custodial sentence.  But that depends on the culpability of the defendant in the commission of this offence.  
4. 	The circumstances surrounding the offence are set out in my written ruling which has been given to both counsel before today.  Counsels will gather from my written ruling that this offending is not on the higher side of the scale compared to other theft as a servant cases which have come before this Court.  I say this because on the night that the defendant received the AUD$3,000 for purchase of Samoan currency there was no intention by the defendant to steal any money that night.  There was a genuine mistake in the entry in the document she was required to fill.  The receipt she gave to the purchaser was correct.  It fairly stated and correctly stated the correct amount in Samoan currency that was given to the defendant for the AUD$3,000 received by the defendant.  The mistake or the culpability of the defendant in the offending was that she held on to the cash and did not declare the so-called surplus the following day and the following other days when she completed the daily balance clearance summary forms at the end of those days.
5. 	As I said, the culpability of the offender was on the very low scale on the night that she allegedly received the AUD$3,000 and for that reason alone I must consider other sentence other than a custodial sentence.
6. 	Taking into account all the circumstances raised by the prosecution service in their report and by defence counsel, I am satisfied that a custodial sentence is not suitable in this matter.  Personal circumstances are well canvassed in the probation report as submitted by your counsel and at your age this is the first time that you have appeared before this Court so I have to take into account your impeccable good record before the commission of this offence.  You are a single mother of three and you are separated from your partner so you are the sole provider and caregiver for your children and any custodial sentence to be imposed by this Court will cause much harm to your children.
7. 	For this offence, you are convicted and placed on probation for 12 months on condition that you do 40 hours community service.  You are also ordered to pay prosecution costs of $1,000, to be paid at the rate of $200 per month.  The first payment to be made on 27 March 2015.

JUSTICE VAAI