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Police v Fepuleai [2017] WSSC 63 (21 April 2017)

THE SUPREME COURT OF SAMOA
Police v Fepuleai [2017] WSSC 63


Case name:
Police v Fepuleai


Citation:


Sentence date:
21 April 2017


Parties:
POLICE (Prosecution) v FAASAEI FEPULEAI male of Vaivase Uta and ALOFAAE TEUENI male of Safaatoa Lefaga


Hearing date(s):



File number(s):



Jurisdiction:
Criminal


Place of delivery:
The Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Tafaoimalo Tuala Warren


On appeal from:



Order:
Both accused are convicted and fined $300 each. This is payable by 4pm on Monday 24 April 2017, in default 6 months imprisonment.


Representation:
F Ioane and A Matalasi for Prosecution
Both Accused Unrepresented


Catchwords:
Theft as a servant


Words and phrases:



Legislation cited:
Crimes Act 2013 s.161(a),165(e) and 33



Cases cited:



Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E
Prosecution


A N D


FAASAEI FEPULEAI male of Vaivase Uta and ALOFAAE TEUENI male of Safaatoa Lefaga
Accused


Counsel:
F Ioane and A Matalasi for Prosecution
Both Accused Unrepresented


Sentence: 21 April 2017


S E N T E N C E

The charge

  1. The accused Faasaei appears for sentence on one joint charge of theft as a servant, contrary to sections 161(a), 165(e) and 33 of the Crimes Act 2013.
  2. The accused Alofaae is being sentenced on two joint charges of theft as a servant.
  3. Theft as a servant carries a maximum penalty of 10 years imprisonment.
  4. Both pleaded guilty to their charges at the earliest opportunity on 6 March 2017.
  5. A third accused was issued with a warrant of arrest for non appearance on 5 April 2017.

The offending

  1. The Prosecution summary of facts admitted by both accused says that on 28 January 2017, the accused while working for Chan Mow Company Limited, removed 27 bags of diapers valued at SAT$92.00 each from inside one of the containers at the back of the wholesale building. They placed the bags near the back fence of the property.
  2. That same day at 2pm the accused took 5 bags and sold it to Princessa store at Vaimea for SAT$200.00.
  3. At 3pm on the same day, the accused Alofaae and a third accused took the remaining 22 bags of diapers and sold them to the same store for an unknown amount which was distributed among the three accused.
  4. The total value of the stolen property is SAT$2484.00.

The accused

Faasaei Fepuleai

  1. Faasaei is 21 years old. He is married with one child. He stays at home and relies on his father’s income as a seasonal worker.
  2. His mother told Probation that the accused is reliable and loving within their family. She remains supportive of him.
  3. There are two written testimonials in support of the accused, one from his church minister and one from his village representative.
  4. The General Manager of Chan Mow Wholesale confirmed that the accused and his parents approached him and apologised.
  5. He is a first offender.
  6. Probation recommends a 12 months suspended sentence for Faasaei.

Alofaae Teueni

  1. Alofaae is 35 years old and is a father of six. He lives at Solosolo with his wife’s family.
  2. His cousin told Probation that the accused is a reliable member of his family who works hard on the family plantation.
  3. He also apologised to the General Manager of Chan Mow Wholesale.
  4. He is a first offender.
  5. Probation recommends a sentence of supervision and community service.

Aggravating features of the offending

  1. A significant aggravating factor is that these accused have breached the trust which was placed on them by their employer. They breached this trust by their actions of taking goods belonging to their employer.
  2. It is aggravating that the offending was pre-mediated. They planned their offending and carried it out with precision. They put the bags near the back fence of the property then took 5 bags first and 22 bags later. They took the bags and sold them to a shop to get money for themselves.
  3. The goods taken were of significant value being SAT$2484.00.

Mitigating factors

  1. Both accused apologised to the employer.
  2. It is a mitigating factor that both accused entered early guilty pleas.

Discussion

  1. Prosecution submits that a conviction and fine is appropriate for Faasaei while a custodial sentence with a starting point of at least 12 months is appropriate for Alofaae. I am unable to find a reason for the difference in their sentence recommendation as I assess the culpability of both accused to be the same.
  2. This type of offending not only affects the employer but the economy and the community as a whole. The accused need to realise that this type of conduct creates an atmosphere of distrust within workplaces and affects the financial stability of companies.
  3. Having considered all the circumstances of the offending, I have decided to impose a non custodial sentences on both defendants. They have apologised to the employer. They have accepted responsibility for their actions through their early guilty pleas. They will find it difficult to find employment in the future due to their convictions. If they appear again for similar offending, they will most likely receive custodial sentences.

Sentence

  1. Both accused are convicted and fined $300 each. This is payable by 4pm on Monday 24 April 2017, in default 6 months imprisonment.

JUSTICE TAFAOIMALO TUALA WARREN


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