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Police v Afutiti [2019] WSSC 35 (25 July 2019)

SUPREME COURT OF SAMOA
Police v Afutiti [2019] WSSC 35

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

A N D

LEVESI AFUTITI, male of Vaitele-Fou & Vailoa Palauli.
A N D
ASAFO ASOTOLU, male of Fasitoo-uta.

Accuseds

Counsels:
F. Ioane and L. Faasii for Prosecution
Accuseds self represented

Sentence: 25 July 2019

ORAL SENTENCE

The Charge:

1. The defendants appear for my sentencing decision on charges of theft as a servant. Before I turn to my decision, I wish to comment on the summary of facts and the charge information S1146/19 in this matter brought by Prosecution. The summary of facts contained a basic calculation error that should have been identified by prosecution through their process of review, yet it was not. The summary of facts was then signed off on behalf of the Assistant Attorney General with these errors.
2. Similar basic errors occurred for example to the charge S1146/19 stating that “two boxes of chicken legs valued at $56.50 a carton with a total value of $112.00.” Similarly, that two boxes or turkey tail valued at $66.40 per carton amounts to a total value of $265.60 is just patently wrong. The use of a calculator would have identified these issues as would have been a basic review of the documents.
3. These simple errors should not have occurred and should have been identified in the various stages of the preparation, review and settling of the summary of facts by both Police and Prosecution. This occur far too often and has been raised regularly with no improvement by prosecution in the documents filed with the court. These simply adds additional work to the court and judges in identifying and correcting these errors. Prosecution needs to implement a system of review that captures these errors so it cannot get at this stage of the sentencing process to only be corrected by the court.
4. Now, to correct the information in the summary of facts calculation to reflect the summary itself, the following amendments are made on prosecution counsel’s application:
   • (c) In respect of paragraph 11 of the summary of facts delete $1,150.90 and insert $1,028.80;
   • (d) In respect of information S1146/19 the amount of $112 is deleted and inserted $113.00; deleting the amount of $265.60 and inserting the amount of $132.80; and deleting the sum of $378.60 and inserting $245.80.

The Offending:

5. According to the summary of facts admitted by you both, you were both employees of Frankie’s Supermarket as stock persons. On Monday 6^th May at about 1.30pm you were cleaning up the store after it had closed. As you did so, you then stole the two boxes of chicken legs valued at $56.50 each and two boxes of turkey tails valued at $66.40 each. You then placed the stolen items inside the trolley that was used for the rubbish collection. You then took the trolley and placed the contents in the bins outside which you later then uplifted. You then took the stolen items and sold it to a barbeque shop at Vaitele and divided the proceeds from the sale equally between the two of you.
6. On Thursday 9^th May, you used the same mode of stealing as you did on Monday 6^th May. On the 9 May you stole four boxes of chicken valued at $56.50 each; five boxes of turkey tails valued at $66.40 each; three boxes of drum sticks valued at $56.00 each; and one box of turkey wings valued at $57.00. You again took the stolen items and sold it the barbeque shop at Vaitele and divided the proceeds between you.
7. The total value of the goods stolen by you both was $1,028.80.

Background of the Accuseds:

8. Levesi, you are 23 year old male of Vaitele-Fou and Vailoa Palauli. In your Pre-Sentence Report, you told the Probation Service that your parents were church ministers. You were born and raised within the Malua Theological College. You told the Probation Service you are the youngest of four consisting two boys and two girls. You are unemployed but render your service to your family. According to your mother, she describes you as hardworking as well as reliable in the family. She also confirmed that you were the sole provider for the family through your job. She asks and pleads for another chance for you.
9. Asafo, you are 24 years old of Fasitoo-Uta and Se’ese’e. You were born into your paternal side of the family at Saleilua Savaii. You are the third of five children. You went to school at Nuuausala College and left school at year 11. You married in 2017 and continue to live with your family until your father passed away in 2018. You then moved in with your wife’s family at Se’ese’e. You told the Probation Service that it’s been less than two months since you started working for the complainant’s shop earning a weekly pay of $190.00 when this occurred.

The Victim:

10. [10] Frankie’s Supermarket at Lotopa is the victim of your offending. In their Victim Impact Report dated 12^th July 2019, they say as a result of your offending, they have had to hire more security and commend that it is very hard to find honest workers.

Aggravating Features:

11. In terms of the aggravating features of your offending they are as follows:
    • (i) Breach of trust by the two of you;
    • (ii) You committed your offending on two occasions all within the same week;
    • (iii) Your theft from your employer was planned and concerted efforts to steal and then on sell the stolen items to a barbeque vendor;
12. There are no aggravating factors personal to you both as you are first offenders.

Mitigating Factors personal to the Offenders:

13. In terms of mitigating factors personal to you, I take into account your remorse which I accept as genuine as well as your apology. I also take into account your prior good character and early guilty plea.

Discussion:

14. Levesi and Asafo, theft as a servant is widespread in Samoa as is many offences of dishonesty. Employees too often have no regard for the property of others and steal with no thought about the possible consequences. It is only when they appear before the Courts that they say they are sorry and in most cases, it is because they were caught, and not because of the offending itself.
15. For you Levesi, you were brought up as the son of a faifeau and raised within Malua College. Of all young men, you should have known better. In mitigation, you expressed your remorse and concern that no one would then look after your family.
16. For you Asafo, you also appear to have been brought up in a good family but you have now also lost your job. You expressed your sorrow for your offending and rightly acknowledged prison is no future for you.
17. After your arrest, you were both remanded in custody for two weeks. You understand what imprisonment means to you and your lives should you be imprisoned. For you Levesi, you have brought shame to your family who have been brought you up with strong Christian principles. They are faifeau’s and you should understand the pain that you have caused your family. The Victim Impact Reports states that your mothers have gone to your former employer and cried on your behalf. That is something they should never have had to do for you both. That should weigh heavily on you both. For you Asafo, what type of example is your conduct for your young daughter?
18. You both acted in a very dishonest and calculated way by stealing the items, hiding the items and then on-selling it.
19. Prosecution seeks a custodial sentence with a start point of 12 months imprisonment. Probation says you are suitable for a community based sentence.
20. I accept the probation service recommendation and note that your case can be distinguished from Police v Tanoai in that the defendant there was a supervisor therefore involving a greater degree of breach of trust and the offending involved 4 separate occasions.

Result:

21. Now for both offences, you are convicted and sentenced to 12 months supervision and ordered to:
    • (e) carry out 120 hours of community work each with the Samoa Victim Support Group, but if you are not suitable for the SVSG as otherwise directed by the probation service; and
    • (f) attend such programs as directed by the probation service.
22. You have both been given a chance today. You must fully understand that if you come back for a similar offending, the outcome will likely be different, so do not waste this opportunity and learn from it.

JUSTICE CLARKE