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Police v Brown [2019] WSSC 66 (14 November 2019)

SUPREME COURT OF SAMOA
Police v Brown [2019] WSSC 66

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MATAGOFIE BROWN female of Alamagoto and Vaimoso.

Accused

Counsel: L Faasii and M Alai for Prosecution

A Lesa for the Accused

Sentence: 14 November 2019

ORAL SENTENCE

The Charges:

[1] Matagofie, you appear for sentence on 267 charges of theft as a servant and 267 charges of false accounting as set out in the charging document dated 18 October 2019.

The Offending:

[2] Your offending occurred between June of 2016 and December 2018.

[3] The maximum penalty for each charge of theft as a servant is 10 years imprisonment and for false accounting 7 years imprisonment.

[4] According to the Summary of Facts accepted by you through your counsel, at the time of your offending you were employed by the victim which is Drake & Co. You were responsible for receiving loan payments from customers and issuing of receipts for the said payments to the customers on behalf of the victim. All monies received from customers are then recorded in the loan book including the date payment was made, the name of the customer, the amount of repayment made and the receipt number issued to the customer. The receipt number entered in to the loan book must be consistent and correspond with the coupon copy in the receipt book. The coupon copy of receipts are used by the account division of the victim to verify payments made by each customer. On 267 separate occasions from June 2016 to December 2018, you received payments from customers and would issue receipts on some occasions.

[5] The false entries made by you related to many different customers of the victim, said to be 156 customers in number by prosecution who made payments towards their monies owing to the victim. On 267 separate occasions between June 2016 and December 2018, you stole that money paid by your employer’s customers to your employer. The amount stolen by you varied from $45.00 to $2,000.00 but by the end of your long and regular stealing spree from your employer, you had stolen $118,991.17 from your former employer.

Background of the Accused:

[6] You are a 45 year old woman. You are married with 4 children. According to your Pre-Sentence Report you grew up in Samoa and completed secondary school. You lived in Australia in the 1990s where you attended TAFE and gained a Certificate in Accounting. You also lived briefly in New Zealand before returning to Samoa in 2000.

[7] You have began work with the victim in 2016 earning $16,500.00 per annum. You were terminated earlier this year as a result of this matter.

[8] According to your Pre-Sentence Report you are a Church Minister for a Church based in Vaitele. You have positive character references speaking of your honesty, humility, cheerful character and popularity amongst your church and community. In your PSR you are said to have expressed remorse for your actions saying that this is the first time a situation like this has happened to your and expressed your sadness that it has affected your calling from God.

The Victim:

[9] There are many victims to your offending Matagofie. The first is the Drake & Co., your former employer. When you are hired, in the Victim Impact Report from this victim, it says that you introduced yourself as being an associate pastor and very much involved with the church. The VIR states:

“We were given the impression that Mata was therefore a very holy woman, with a very sunny nature whose speech was always peppered with “God Bless” and “Holy Spirit” and “Holy Spirit that...”

[10] Given the lengthy period of your stealing, your former employer had to spend a significant amount of time and money to identify all the payments that you had stolen as well as their customers affected. Your former employer is appalled and astounded by your actions, particularly given that you started your stealing from almost when you started your employment with them. Your former employer makes the obvious point that as you were always talking about church and all things spiritual at work, you were at the same time brazenly stealing from them in a very deceitful way.

[11] In terms of the Drake & Co. customers, a number of Victim Impact Reports have been provided. These victims variously speak of their deep disappointment, anger and sadness about your offending. Clear from their VIRs in their financial vulnerability.

Aggravating Features of the Offending:

[12] The following are the aggravating features of your offending are:

(i) The significant breach of trust in your offending. You were the employee entrusted to receive and record payments on behalf of your former employer;
(ii) Your offending was highly premeditated and calculated;
(iii) It involved multiple offending over a very long period of time;
(iv) The amount of money stolen by you was very large by Samoan standards;
(v) The number of victims of your offending; and
(vi) The impact of your offending on the victims.

[13] There are no mitigating features in respect of your offending. There are also no aggravating factors personal to you as an offender, you are a first offender.

Mitigating Factors personal to the Offender:

[14] In terms of the mitigating factors personal to you as an offender, these are the factors that I take into account:

(a) Your prior good character. You are 45 years of age and you have not been before the Court before;
(b) The remorse as noted in the Pre-Sentence Report; and
(c) */Your guilty plea.

Discussion:

[15] Matagofie, your former employer’s astonishment and surprise at your actions given your continued reference to God and the Holy Spirit in the workplace is no surprise. In your PSR, you yourself refer to your sadness with your offending because it has affected your so called calling from God.

[16] Your offending was not at all isolated or out of character. Despite your so called calling from God that you appear to have preached openly about including your former workplace, you were at the same time falsifying documents, stealing from your employer on a regular basis and lying and misleading Drake & Co and its customers. These were customers who had loans, who necessarily were already in financial hardship. Despite your so called calling from God as you put it, you stole from your former employer and deceived so many people at the same time as you breached God. Had you truly had a calling from God, you would have realized the harm you were causing and how wrong it is. The 10 Commandments of course says, Thou Shalt Not Steal. You did so 267 occasions.

[17] The Court’s approach to sentencing for Theft as a Servant is well known. As Justice Nelson stated in Police v Tiatia [2014] WSSC 149 (3 July 2014:

“The courts policy in respect of such offending is well established by a long line of cases. It is serious offending and its effects are always felt in a small community such as ours. It is also one of the most common offences coming before the court. Consequently, the courts policy is to impose imprisonment as its usual penalty. Unless there are exceptional circumstances warranting some other treatment”.

[18] There are certainly no exceptional circumstances in your case. You stole $118.991.17. You did so on many occasions and have many victims. There are also no personal circumstances such as to make your case exceptional. A custodial sentence is warranted.

[19] I have referred to all sentencing submissions by both counsel for the prosecution and your counsel. I accept the submissions by prosecution that the appropriate start for sentence is 6 ½ years imprisonment on a totality basis. This start point uplifts from Police v Tialino referred to by prosecution on account of the multiplicity of the offending, the number of victims and the duration of time in which you committed your offending. From the start point, I deduct 6 months for your prior good character and 4 months for your state of remorse referred to in the pre-sentence report. This is a reduced discount as the genuineness and depth of your remorse, I am not certain. You have made no apparent steps for any repayment and there are inconsistencies between what you told the Probation Service and what the victim impact report says from Drake & Co. From the balance, I deduct 17 months for your guilty plea, leaving an end sentence of 4 years and 3 months imprisonment.

Result:

[20] Matagofie, I adopt charging document dated 18 October 2019 charge 217 in the sum of $2,000.00 as the lead charge on a totality basis and convicted and sentenced you to 4 years and 3 months imprisonment less any time remanded in custody. On all other charges of theft as a servant between $1,000.00 and $2,000.00, you are convicted and sentenced to 10 months imprisonment and all other remaining theft as a servant charges, 4 months imprisonment, all concurrent.

[21] On all false accounting charges, you are convicted and sentenced 12 months imprisonment also to be served concurrently. The end sentence therefore and the time that you will be sentenced to imprisonment is 4 years and 3 months imprisonment.

JUSTICE CLARKE