Wall v R [2001] TOLawRp 42; [2001] Tonga LR 238 (27 July 2001)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 31/2000

Wall

v

R

Burchett, Tompkins, Spender JJ
25 July 2001; 27 July 2001

Sentencing – appeal against embezzlement sentence – plea of guilty – sentence reduced
Misrepresentation and fraud – embezzlement – sentencing

The appellant was the Tongan representative for MMI Services Pty Ltd, an Australian insurance company. In that position, he had authority to sign cheques to withdraw money from the company's claims account at the Bank of Tonga to pay company expenses and claims. These cheques were required to be signed by the appellant and an officer of the Insurance Corporation of Tonga, the agent for MMI in Tonga. In January 2000, the appellant requested Mr Natu Lui, the manager of ICT, to sign blank cheques in order, he claimed, to pay some claims of policyholders. Mr Lui did so. The appellant personally attended at the bank, signed each cheque on the reverse side, and withdrew the amount of each cheque in cash. The appellant adopted this procedure on 11 occasions and the amount of each cheque varied from $8,970 to $35,750. The total amount embezzled was $181,008. The appellant used this money for trips overseas, gifts and shopping, the importation of an Alfa Romeo sports car he owned in Australia, transferring amounts to his sister in Australia, and buying assets such as a tractor, tractor implements, ride-on lawnmower, television, video, camera, and other items. Some of the items purchased had been recovered by the police. The appellant pleaded guilty to 11 counts of embezzlement. On 23 October 2000 he was sentenced to five years imprisonment on each count concurrently, the last 12 months to be suspended for two years from date of release. He appealed against those sentences.

Held:

1. The maximum penalty was seven years imprisonment. Looking at the offending alone, particularly having regard to the amount, the period over which it occurred, and the appellant's senior position of trust, a sentence not too far from the maximum was considered appropriate. Taking into account all the circumstances of the offending, and the mitigating factors, but for the plea of guilty, a sentence of five years imprisonment would be within the sentencing judge's discretion.

2. Where a reduction was made for a guilty plea, the amount of that reduction should be stated by the sentencing judge. Then the accused would be aware that a real reduction in the sentence for the guilty plea occurred. Also counsel would be able to advise an accused person that if he or she pleads guilty there would be imposed a shorter sentence than if found guilty. A reduction of one year for the guilty plea was appropriate; this resulted in a sentence of four years. In recognition of the appellant's age, his character, apart from this offending, and that it was unlikely that he would ever re-offend, a suspension of the sentence for 12 months was warranted.

3. The Court concluded that the sentence imposed by the Chief Justice was excessive. The appeal against sentence was allowed and the sentence imposed in the Supreme Court was quashed. In lieu thereof, the appellant was sentenced to four years imprisonment on each count to be served concurrently, the last 12 months of the sentence to be suspended for two years from the date of release.

Cases considered:

R v Misinale (Court of Appeal, CA 13/99, 23 July 1999)

R v Tangata'iloa (Supreme Court, Cr 99/00, 3 May 2001)

Counsel for appellant: Mr Niu
Counsel for respondent: Mr Fusitu'a

Judgment

[1] The appellant pleaded guilty to 11 counts of embezzlement. On 23 October 2000 he was sentenced to five years imprisonment on each count concurrently, the last 12 months to be suspended for two years from date of release. He has appealed against those sentences.

The offending

[2] The appellant was the Tongan representative for MMI Services Pty Ltd, an Australian insurance company. In that position, he had authority to sign cheques to withdraw money from the company's claims account at the Bank of Tonga to pay company expenses and claims. These cheques were required to be signed by the appellant and an officer of the Insurance Corporation of Tonga, the agent for MMI in Tonga.

[3] Commencing in January 2000, the appellant requested Mr Natu Lui, the manager of ICT, to sign blank cheques in order, he claimed, to pay some claims of policyholders. Mr Lui did so. The appellant personally attended at the bank, signed each cheque on the reverse side, and withdrew the amount of each cheque in cash.

[4] The 11 counts relate to 11 occasions when the appellant adopted this procedure. The amount of each cheque varied from $8,970 to $35,750. The total amount thus embezzled was $181,008.

[5] The appellant used this money for trips overseas, gifts and shopping, the importation of an Alfa Romeo sports car he owned in Australia, transferring amounts to his sister in Australia, and buying assets such as a tractor, tractor implements, ride-on lawnmower, television, video, camera, and other items. Some of the items purchased have been recovered by the police.

The appellant

[6] The appellant was born and brought up in Queensland, Australia. He was aged 31 at the time of the offending. He has tertiary qualifications and is an associate of the Insurance Institute of Australia. He worked for insurance companies in Australia until he was appointed Commercial Manager and representative of MMI in Tonga in 1998. He is in good health. On 1 July- 2000, after the disclosure of the offending, he married a Tongan woman whom he had met at his church. He is an active member of his church here in Tonga. She has supported him in prison, visiting regularly and taking him food and clothing. He has stated that, when his sentence and any other litigation arising out of these events are completed, he intends to return to Australia with his wife.

[7] Affidavits filed in support of the appellant describe him as compassionate, loving, and willing to help others. The affidavits from his wife and the Minister of his church confirm the sincerity of his religious beliefs and the extent of his activities in his church. The Chief Justice when sentencing accepted that he was a caring and kind person, fortunate to have such loyal friends. These are excellent references, although strangely at variance with his conduct resulting in these offences.

[8] He made a full statement to the court in which he expressed his remorse for what he had done. He said, by way of explanation not excuse, that the thefts occurred because he was completely infatuated with another person. Most of the money taken was spent with her and others on a trip to Hong Kong. Some of the articles purchased, such as the tractor and lawnmower, were for this person's family. He speaks of his determination to make full restitution.

Aggravating features

[9] For the commercial community to function effectively employers must be able to trust their employees. This is particularly so where the employee is in a senior responsible position. For this reason, the courts have always regarded theft as a servant as a serious offence requiring a deterrent penalty. The appellant deliberately breached that trust not once, but 11 times, spread over a period of four months. The proceeds of his embezzlement he used for what can only be described as high living.

[10] The amount involved, $181,008, is very large. Indeed, this is the largest embezzlement ever discovered in Tonga.

Mitigating features

[11] The appellant has no previous criminal record. Evidence was produced of an impressive work record. We have already referred to his otherwise good character.

[12] He admitted and confessed to the offences as soon as he was confronted by his employer. He co-operated fully with the police, and pleaded guilty in the Supreme Court. Some of the property purchased with the embezzled funds has been recovered to the value of approximately $30,000.

[13] We accept, as did the Chief Justice, that there is little if any likelihood of his offending again. Accordingly, the rehabilitative aspect of sentencing is not particularly relevant in the appellant's case.

[14] The probation officer considered, and we agree, that the appellant is genuinely remorseful for what he has done. He has recognised the harm he has done to his family, and the damage to his employer, to whom he wrote a letter apologising for his conduct.

[15] There are two other factors relevant to the sentence to be imposed. The appellant as an Australian will be in prison with persons of a different culture and language. There can be no doubt that this aspect makes the sentence more onerous than would otherwise be the case. However, the impact of this aspect is lessened to some extent by the assistance he will receive from his wife.

[16] The appellant, in a relatively short time, had made very considerable progress in his chosen profession of insurance, having reached a senior position. All that is now lost. If he is ever again employed in a position requiring trust and integrity, that is unlikely to be for a very long time.

Comparable sentences

[17] The Crown referred to two other sentences for embezzlement. The first is the decision of this court in R v Misinale (Court of Appeal, CA 13/99, 23 July 1999). It was an appeal by the Crown against the sentence imposed. The respondent had been found guilty, following a trial by a jury, of embezzlement of $47,310.23. At that time, it was the largest embezzlement discovered in Tonga. There were similar elements. He was in a senior position of trust and had no previous convictions. The sentence imposed by the judge in the Supreme Court was three years imprisonment of which he was ordered to serve eight months with the balance suspended for two years from the date of his release. This court increased the sentence to three years imprisonment, the last 12 months of the sentence to be suspended for two years from the date of his release. As a Crown appeal, the sentence should be regarded as at the lower end of the appropriate sentencing range.

[18] In R v Tangata'iloa (Supreme Court, Cr 99/00, 3 May 2001) the prisoner had pleaded guilty to a series of charges involving the embezzlement of $6,627.40 while he was employed as a bank teller. He was sentenced to two years imprisonment on each count concurrently, the final six months of the sentence suspended for one year from the date of release.

Decision

[19] We have considered the aggravating and mitigating factors to which we have referred, and the deterrent element that is important in sentencing for offending of this kind. We accept the submission on behalf of the Crown that thefts carried out by persons in a position of trust can be difficult to detect. When they are detected, a sentence calculated to discourage others from behaving in a like manner should be imposed. We also take into account the sentences in the other two cases of embezzlement.

[20] The maximum penalty for this offence is seven years imprisonment. Looking at the offending alone, particularly having regard to the amount, the period over which it occurred, and the appellant's senior position of trust, a sentence not too far from the maximum may well be considered appropriate. Taking into account all the circumstances of the offending, and the mitigating factors, but for the plea of guilty, we consider that a sentence of five years imprisonment would be within the sentencing judge's discretion.

[21] Mr Niu submitted that the Chief Justice should have applied what he described as the normal reduction of one-third for the guilty plea. We do not consider that there should be any normal reduction for a guilty plea. Whilst undoubtedly what would otherwise be an appropriate sentence should be reduced to recognise that pleas of guilty should be encouraged, the amount of that reduction must depend on the individual circumstances of each case. Where, for example, a plea of guilty will avoid a long expensive trial, or avoid the need for the victim of a sexual offence to give evidence, a larger reduction would be justified. Where a not guilty plea is changed to guilty only on the eve of the trial, or the accused is obviously going to be found guilty, a little reduction may be appropriate. A guilty plea entered early can also be evidence of genuine remorse.

[22] Where a reduction is made for a guilty plea, we consider it desirable for the amount of that reduction to be stated by the sentencing judge. If this is done, the accused will be aware that a real reduction in the sentence for the guilty plea has occurred. Also counsel will be able to advise an accused person that if he or she pleads guilty there will be imposed a shorter sentence than if found guilty. In this case, we consider that a reduction of one year for the guilty plea is appropriate, resulting in a sentence of four years.

[23] We also agree with the Chief Justice that, in recognition of the appellant's age, his character, apart from this offending, and that it is unlikely that he will ever re-offend, a suspension of the sentence for 12 months is warranted.

The result

[24] For these reasons we conclude that the sentence imposed by the Chief Justice was excessive. The appeal against sentence is allowed. The sentence imposed in the Supreme Court is quashed. In lieu thereof, the appellant is sentenced to four years imprisonment on each count to be served concurrently, the last 12 months of the sentence to be suspended for two years from the date of release.