Sefo v R [2005] TOLawRp 25; [2005] Tonga LR 335 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA

Sefo anor

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
Cr App 15-16/2004

14 July 2005; 21 July 2005

Criminal law – fraud and forgery – appeal against conviction on Judge's summing up – appeal dismissed Sentencing – appeal against sentence – Judge took earlier offending into account – appeal allowed

For the decision of the Supreme Court, see Sefo anor v R [2004] Tonga LR 366.

The first appellant ("Sefo") was charged with four counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $18,063 and one count of forgery resulting in the bank making an unauthorised loan of $20,000. She was found guilty on all counts. On 29 October 2004, she was sentenced to 6 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She appealed against conviction and sentence. The second appellant ("Tu'ipulotu") was charged with five counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $27,800. She was found guilty on all counts. On 29 October 2004, she was sentenced to 5 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She appealed against conviction and sentence. The grounds of appeal were substantially the same and were on the grounds of misdirection or inadequate direction in the summing up.

Held:

1. The Court found that the trial judge provided adequate and sufficient direction to the jury as to what regard to have to anything that the prosecutor may have said about any other possible charges. The jury could have been left in no doubt that they were to disregard that entirely. That ground did not succeed.

2. The Court found that the trial judge provided adequate and sufficient direction to the jury as to what regard to have to anything that the prosecutor said about the Crown never winning a jury trial in Vava'u. The jury could have been left in no doubt that comment should not have been made and that it must be totally disregarded. That ground did not succeed.

3. None of the grounds advanced by the appellants were made out. Both appeals against conviction failed.

4. In sentencing the appellants, the offences for which they had been convicted were properly taken into account. But offences for which they had not been convicted, had not pleaded guilty or had not otherwise admitted should not be taken into account. It was apparent that the trial judge placed considerable weight on what he regarded as serious other offending by the appellants over a longer period than the period covered by the counts that went to the jury. The Court of Appeal was required to consider afresh what were appropriate sentences for the offences of which the appellants were found guilty.

5. The appeals against conviction were dismissed. The appeals against the sentences were allowed. The sentences imposed were quashed. Sefo was sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. She was sentenced to imprisonment for one year on the forgery charge to be cumulative on the sentences on the fraud charges. Tu'ipulotu was sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. In both cases, the last year of the sentences was suspended for two years.

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)

Wall v R (Supreme Court, CR 31/2000, 27 July 2002)

Counsel for first appellant: Mr Tu'utafaiva
Counsel for second appellant: Mr Fakahua
Counsel for respondent: Mr Sisifa

Judgment

[1] The first appellant ("Sefo") was, after amendments to the indictment, charged with four counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $18,063.00 and one count of forgery resulting in the bank making an unauthorised loan of $20,000.00. Following a trial before Ford J and a jury, she was found guilty on all counts. On 29 October 2004, she was sentenced to 6 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She has appealed against conviction and sentence.

[2] The second appellant ("Tu'ipulotu") was, after amendments to the indictment, charged with five counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $27,800.00. In the same trial before Ford J and a jury, she was found guilty on all counts. On 29 October 2004, she was sentenced to 5 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She has appealed against conviction and sentence.

[3] A third co-accused, Siniola Faletapu Leleifi was charged on an indictment containing one count of embezzlement. In the same trial, she was found guilty. She was sentenced to 2 years imprisonment, the final year of the sentence being suspended for 2 years from the date of her release. She has not appealed her conviction or sentence.

[4] The charges against another co-accused, 'Alilia Guttenbeil, were dismissed at the end of the case for the Crown on the basis of defects in the charges in the indictment.

[5] The appeals of Sefo and Tu'ipulotu were heard together. As the grounds of appeal are substantially the same, they can be dealt with together.

Background

[6] In the absence of a transcript of the evidence, or a statement of facts that ought to have been provided to the Court by the Crown, this summary of the events leading to the charges has been compiled from the Judge's summing up, counsels' submissions and the Judge's ruling on the application for bail pending appeal.

[7] All four accused were employees of the ANZ Bank at Vava'u. Sefo was the Branch Manager. Tu'ipulotu was the Reconciliation Officer and Leleifi was the Head Teller. It was the case for the Crown that the two appellants filled in fictitious internal credit slips purporting to make cash deposits to accounts in the name of the appellants or near relatives. When the credit slips had been processed, the appellants promptly withdrew in cash the amounts that had been fictitiously deposited. The internal credit slips were produced as were a printout of the computer pages relating to the relevant accounts, showing the fictitious deposits and the cash withdrawals of the same amounts.

[8] In the case of Sefo, she was alleged to have followed this procedure on the dates and for the amounts shown:

17 April 2003 $4,063.00

15 May 2003 $3,000.00

1 August 2003 $4,500.00

29 September 2003 $6,500.00

[9] In the case of Tu'ipulotu, she was alleged to have followed this procedure on the dates and for the amounts shown:

26 June 2003 $3,700.00

22 July 2003 $5,000.00

1 August 2003 $9,100.00

12 September 2003 $5,000.00

12 November 2003 $5,000.00

[10] The forgery count against Sefo involved a loan application in which the borrower was Mr and Mrs Latu'ila, who were the parents of a co-accused. The loan of approximately $20,000.00 was approved by Sefo. It was alleged that by photocopying an approval of an earlier legitimate loan application, Sefo forged this loan application by photocopying the loan approval on to the application. In the result, the loan was made and was subsequently repaid, so the bank suffered no loss.

[11] There were a number of other events in respect of which the Crown alleged the appellants had acted dishonestly. In the Magistrates' Court there were 1,234 charges laid against all the accused. At a preliminary hearing, the police withdrew 554 charges. By agreement, all the remaining charges were sent for trial in the Supreme Court.

[12] When the charges were called in the Supreme Court, the Judge directed counsels' attention to s 150 of the Criminal Justice Act. On 8 October 2004 an indictment was received in respect of Sefo containing 13 counts alleging offences from April 2003 to November 2003. On 11 October 2004 an amended indictment removed two of those counts. On 26 October 2004, the 12th day of the trial, after the Judge had ruled on the no case application by the accused, 2 counts of conspiracy were removed. On 27 October, the Judge ruled that the four theft counts should be deleted, leaving the five counts that went to the jury. We do not have the comparable information in respect of the charges against Tu'ipulotu, but assume they followed a similar pattern.

The appeals against conviction.

[13] The appeals by both appellants against conviction are on almost the same grounds and can be dealt with together. Other than a submission by counsel for Tu'ipulotu, they were all on the grounds of misdirection or inadequate direction in the summing up.

Other charges

[14] In the opening and closing addresses of counsel for the Crown and in the course of cross-examination, the Crown Prosecutor referred to there being other charges which could have been brought by the Crown against the appellant. The appellants submitted that the Judge erred in not firmly and sufficiently directing the jury to disregard that aspect of the Crown's case altogether.

[15] When summing up to the jury, the judge said:

"The other point is that Crown counsel referred to other charges the Crown could have brought had they been able to do so. Again, whether that is right or wrong, the comment should not have been made. You have 11 (sic – in fact 10) counts in front of you and you must make findings on those counts in accordance with the evidence and the directions that I give you. You must put out of your minds everything Crown counsel said to you about any charges that are not before the Court."

[16] That was an adequate and sufficient direction on this issue. Indeed it is difficult to see what else the Judge could have said without repeating what he had already said. The jury could have been left in no doubt that they were to disregard entirely anything that the prosecutor may have said about any other possible charges. This ground cannot succeed.

Vava'u juries

[17] The appellants submit that the Judge erred in not firmly and sufficiently directing the jury to disregard the comment by the Crown prosecutor to the jury that there is a saying in Vava'u that the Crown never wins a jury trial in Vava'u.

[18] When summing up to the jury, the judge said:

"There are just two points I want to make to you now about the prosecutor's address. First, you may recall that at one point Miss Simiki said words to the effect that in Nuku'alofa the perception is that the prosecution never wins before a jury in Vava'u. Now that statement should not have been made and counsel should have known better. Unfortunately, because I had to wait for a translation, I was unable to stop it being said.

You must try and totally disregard the comment. Your function is to decide the case on the evidence before you and you must not feel intimidated in any way by such a remark."

[19] The difference between the ground of appeal and the Judge's summing up on whether the perception was in Vava'u or Nuku'alofa is immaterial. Again this was an adequate and sufficient direction. It can only have left the jury in no doubt that the comment the Crown prosecutor had made should not have been made and that the comment must be totally disregarded. This ground cannot succeed.

Reduction of counts in the indictment

[20] The appellants submitted that the Judge erred in failing to explain to the jury the reasons for the reduction of the counts in the indictment from eleven to five, with the consequence that the jury may have been under the impression that the remaining five counts are the ones of which the appellants should be found guilty.

[21] We have referred in [15] to the direction the judge gave on the 11 counts before the jury. In addition, shortly after that passage, the judge said:

"The second point is that the indictments contain five counts against the first accused and five counts against the second accused. It is important that you consider each count separately and come to a separate decision about each.

You will be asked for separate verdicts on each of them. You may reach different verdicts on different counts. You may conclude on the facts that if you find a defendant guilty or not guilty on one count then it would be difficult to come to a different conclusion on another count. That is entirely up to you."

[22] These passages in the summing up made it perfectly plain to the jury that they should consider each count separately and decide in respect of each whether the Crown had proved that the accused was guilty or not guilty. There is no basis for the possibility that the jury may have thought they were bound to find the accused guilty on these counts. This ground cannot succeed.

The accused Guttenbeil

[23] The appellants submitted that the Judge erred in failing to explain to the jury the reason for acquitting this accused. A reasonable effect of that failure, they submitted, is that the jury may have concluded that the remaining accused are the ones who should be found guilty.

[24] We do not accept this submission. Not only was there no reason for directing the jury on why the counts against this accused were dismissed, to have done so may well have caused some confusion in the minds of the jury. What was important was for it to have been made clear that the jury should consider the Crown case against each of the accused separately and that they should also consider separately the Crown case in respect of each count against each accused. This the Judge did in the passages to which we have referred.

The cash sheet summaries

[25] Four tellers from the bank gave evidence. A transcript of their evidence is not before this Court. As described by counsel, the witnesses gave evidence of the checking of the deposits slips and credit vouchers with the cash on hand. Counsel for the appellants told the Court that in cross-examination the witnesses referred to these shortages being recorded in the tellers' cash sheet summary. Those summaries were not produced in evidence because, at the time this evidence was given, they were at Nuku'alofa. The appellants submitted that the contents of the summary sheets can only be proved by primary evidence, that is by the production of the sheets in court.

[26] Although this ground is advanced under the heading of appeals against the summing up, it appears rather to be on the ground of the wrongful admission of evidence. It appears from the description of the evidence given by counsel that the cash sheet summaries were not part of the Crown case. Their existence emerged in the course of cross-examination. The primary evidence upon which the Crown relied was the deposit slips and created vouchers that were produced.

[27] On those documents and their recollection of what occurred, the tellers were able to say that there were cash deficiencies without reliance on the cash sheet summaries. Counsel could submit to the jury that, in the absence of the cash sheet summaries, their evidence should not be accepted. The issue was then one for the jury. Counsel for the appellants advised this Court that they did not make any formal application for the cash sheet summaries to be produced later in the hearing. No doubt they could have been obtained from Nuku'alofa if required.

[28] On the account of the evidence as given by counsel, the ground that the evidence of the tellers was wrongly admitted cannot be upheld.

Unanimous verdicts

[29] Counsel submitted that the Judge erred in failing to direct the jury that, notwithstanding the legal requirement that the verdicts have to be unanimous, if they cannot agree on the verdicts after full consideration of the evidence, addresses by counsel and the summing up by the Court, then that is the end of the matter. The jury may have felt or understood that they had no choice but to return a unanimous verdict.

[30] Early in his summing up the Judge said:

"I referred just then to your "joint decision" because under our system of law your verdict, whether it be guilty or not guilty, must be unanimous. That is not to say that you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either guilty or not guilty must be the decision of you all unanimously before it can become your verdict."

[31] At the end of his summing up the Judge said:

"I have now completed all I have to say to you before asking you to retire to consider your verdict. I shall now tell you what will happen when you return with your verdict. You will take your places in the jury box. Your Foreman will then be asked to stand. He should be in a position to state clearly the verdict on each count. The Registrar will then direct this question to him, "are you all agreed upon your verdict?" If you are all agreed, the Registrar will then ask, "what is your verdict is the accused guilty or not guilty of the particular count?" The appropriate answers will then be given by the Foreman."

[32] Those directions are entirely appropriate. They leave the jury in no possible doubt that before a verdict can be delivered, it must be the verdict of them all. It follows inevitably that if they cannot agree upon a verdict unanimously, a verdict cannot be delivered. It is neither a legal requirement nor is it the practice for a judge expressly to direct the jury that if they are unable to agree on any count, they should not deliver the verdict on that count. Such a direction is unnecessary because it follows inevitably from the standard directions that the judge gave the jury. This challenge to the summing up cannot succeed.

The no case ground

[33] One of the grounds in the notices of appeal of both appellants was that the Judge erred in dismissing the application by the appellants for an order that there was no case for them to answer. At the hearing of the appeal counsel for Sefo abandoned this ground, but counsel for Tu'ipulotu did not.

[34] This ground cannot succeed. For the appellant to establish that there was no case to answer against her, she would have to put before this Court the transcript of all the oral evidence and all the relevant exhibits that had been before the Supreme Court to support her claim that that evidence was insufficient to justify the ruling she was asking the Court to make. She has not done so.

[35] There is a second reason. If the verdict of the jury cannot be challenged on the ground that there was insufficient evidence to justify it, and such a challenge is not made in this case, it follows that there must have been sufficient evidence to justify the jury's verdict and therefore there must have been sufficient evidence for the case against the appellant to proceed.

Conclusion on the appeal against conviction.

[36] None of the grounds advanced by the appellants has been made out. Both appeals against conviction fail.

The appeals against sentence

[37] The principal ground advanced by the appellants in support of their appeal against sentence was that the Judge took into account offending by the appellants in respect of which they had not been found guilty. They also submitted that the sentences imposed were excessive having regard to the circumstances of the offences and of the appellants.

[38] In his comments when sentencing the Judge referred to a report from accountants. That report had been submitted by the prosecution at the hearing but ruled inadmissible. We have considered the report. It covers a period and amounts substantially more than the period and amounts in the counts for which the appellants were found guilty. That the Judge took into account offending in addition to the offences contained in the counts is apparent from the following passages in his comments:

"Mr Tu'utafaiva suggested this morning that I should approach sentencing on the basis of the amounts represented by the counts on the indictment. He advises that that figure is 310 $18,063. No authority was cited and I am not prepared to accept that approach."

[39] He goes on to say that he was satisfied that the offending commenced well before September 2003 and that the full extent of the loss will never be known but the figure would have to be in the order of a quarter of a million pa'anga. He believed that the offending most likely began in December 2002 although he said "I strongly suspect that accused number one had embarked on her criminal escapade long before that date."

[40] With respect to the Judge, the approach he adopted is not correct. In sentencing the appellants, the offences for which they had been convicted were properly taken into account. But offences for which they had not been convicted, had not pleaded guilty or had not otherwise admitted should not be taken into account. Archbold Criminal Law, 2000 edition at §5-2, page 487 says:

"An offender must be sentenced only for the offences of which he has been convicted, or which he has admitted either by his plea or by asking for the offences to be taken into consideration."

[41] It is apparent both from the passages in his judgment to which we have referred and from other comments he made when sentencing that the Judge placed considerable weight on what he regarded as serious other offending by the appellants over a longer period than the period covered by the counts that went to the jury. Counsel for the Crown responsibly accepted that the approach the Judge adopted could not be supported.

[42] In view of this conclusion, this Court is required to consider afresh what are appropriate sentences for the offences of which the appellants have been found guilty. We have regard to the following factors:

i. The offending involved large amounts, $18,063.00 in the case of Sefo and $27,800.00 in the case of Tu'ipulotu taken on separate occasions spread over a period of about six months from April to November 2003.

ii. It was a carefully calculated scheme of deception orchestrated mainly by Sefo and to a lesser extent by Tu'ipulotu.

iii. Both appellants were in positions where the bank placed total and absolute trust in them, particularly Sefo as the manager of the Vava'u branch of the bank. Tu'ipulotu was the Reconciliation Officer responsible for balancing the various funds. The Judge found that both of them concocted a juggling game whereby money was transferred from one account to another to hide the fraudulent withdrawals. In doing so they acted in flagrant abuse of the trust placed in them.

iv. The Judge found that the appellants showed no remorse, either in their actions or in the submissions of their counsel at the time of sentencing.

v. Offending on this scale by responsible bank officers has an impact on the confidence of the public in the bank and its employees, and, as the report of the accountant states, on the readiness of foreign owner employers to employ local staff. The Judge considered that the impact of the offending on the close community in Vava'u would be devastating.

vi. The forgery of the approval of the loan application for $20,000.00 did not result in any loss to the bank. But it did involve careful and deliberate acts in the photocopying processes used to carry out the forgery that was intended to and did deceive the bank.

vii. In the absence of probation reports, this Court does not have any knowledge of the personal circumstances of the appellants. Counsel for the appellants did not advance any personal or other circumstances in mitigation.

Comparable sentences

[43] Counsel for the Crown did not put before this Court details of sentences imposed for frauds committed in broadly similar circumstances. In appeals involving sentences, this information should be provided by the Crown.

[44] Counsel referred to the decision of the Court in R v Misinale CA 13/99, 23 July 1999. That was a Crown appeal on the ground that the sentence imposed was inadequate. The respondent had, over a 6 month period, taken $47,310.23 from his employer. He was sentenced to 3 years. He was ordered to serve 8 months of the sentence; the balance was suspended for 2 years from the date of his release. The Crown appeal was only in respect of the order suspending the sentence. This Court quashed the suspension and in lieu ordered that the last 12 months of the sentence be suspended for two years. As this appeal did not address the adequacy of the term of imprisonment, it is of limited value in considering an appropriate sentence for offending of the kind involved in this case.

[45] In Wall v R CR 31/2000 27 July 2002 the appellant pleaded guilty to 11 counts of embezzlement. The total amount involved was $181,000. He was sentenced to five years imprisonment on each count concurrently, the last twelve months to be suspended for two years from date of release. His appeal against sentence was allowed, the sentence was reduced to imprisonment for four years on each count to be serve concurrently, the last twelve months of the sentence to be suspended for two years from the date of release. The main distinguishing features between that case and this are the amounts involved and the plea of guilty, as well as other mitigating features we need not detail.

[46] In R v Tangata'iloa CR 99/00, judgment 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. In that case also the main feature distinguishing that case from the present is the plea of guilty.

Conclusion

[47] A starting point for offending of this kind and scale is in the range of three to four years. The present case is aggravated by many of the factors to which we have referred, particularly the breaches of trust by both appellants. The breach of trust by Sefo is more serious than that of Tu'ipulotu, but when regard is had to the greater amount involved in the offending of Tu'ipulotu, we conclude that the sentences for the two appellants for the fraud charges should be the same. Regard also should be had to the absence of any significant mitigating circumstances. We conclude that the appropriate sentence for the fraud charges is a sentence of four years imprisonment on each charge. As all the charges were part of a single pattern of offending, the sentences should be concurrent.

[48] The forgery charge against Sefo is in a different category. The sentence for that charge should be cumulative on the sentences on the other charges. Taking into account the totality of the offending and the sentences, Sefo is sentenced to imprisonment for one year on the forgery charge, cumulative on the sentences on the fraud charges.

[49] We see no reason to differ from the Judge's conclusion that parts of the sentences should be suspended. In both cases, the last year of the sentences is suspended for two years.

Result

[50] The appeals against conviction are dismissed. The appeals against the sentences are allowed. The sentences imposed are quashed. Sefo is sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. She is sentenced to imprisonment for one year on the forgery charge to be cumulative on the sentences on the fraud charges. Tu'ipulotu is sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. In both cases, the last year of the sentences is suspended for two years.