R v Vea [2006] TOSC 24; CR 231 2005 (28 June 2006)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 231/05; CR 236/05; CR242-4/05; CR284-5/05; CR88-89/06;
CR 93-6/05;CR138-140/06; CR 109-11/06; CR 283 and 286/05.

REX

-V-

SIMONI VEA
‘UNALOTO VEA
LUSEANE VEA
TAUMOEFOLAU TULIKIHEFUA
UINISE TULIKIHEFUA

BEFORE THE HON ACTING CHIEF JUSTICE FORD

Counsel: Mr Sisifa for the Crown and Mr Fifita for Uinise Tulikihefua

Date of Sentencing: 28 June 2006

SENTENCING REMARKS

[1] Just over a month ago I had another group of young people before me for sentencing on a large number of charges. The total number of offences on that occasion came to 196. Your combined total is 60 charges which is still a large number.

[2] Although I am taking the opportunity at this point of time in speaking to you all collectively, when it comes to the actual sentencing in a few moments, I will be looking at each case on its merits and I will be sentencing you, accordingly, as individuals.

[3] The offences you have pleaded guilty to were all committed in the second half of 2005 and the beginning of this year. They relate to charges of housebreaking, theft, receiving of stolen property, conspiracy and abetment. In the case of Simoni and 'Unaloto there are also some illicit drug charges.
[4] The crimes relating to housebreaking and theft are despicable offences. In each case they involve an invasion of the privacy of people's homes. By their very nature they are hard crimes to detect and the police need to be commended for their role in investigating the numerous offences you people have been collectively involved in and then bringing you to justice.

[5] Housebreaking carries a maximum sentence of 10 years imprisonment. In relation to the theft charges, the maximum penalty for theft when the thing stolen exceeds $500 in value is seven years imprisonment. The conspiracy and abetment offences carry similar maximum penalties. Any drug offence these days carries an enormous maximum penalty in the Kingdom. Parliament has certainly sent out a clear message that drug offending in any form will not be tolerated.

[6] On the credit side, one thing that can be said strongly in your favour is that you have had the commonsense to plead guilty to all the offences. Your guilty pleas come at different stages but you are entitled to credit and you will get credit for pleading guilty instead of requiring the matter to go to trial.

[7] I also make the point that you are fortunate that no violence was involved in any of your offending. Any form of violence to another person during crimes of housebreaking and theft will inevitably increase the sentences very considerably.

[8] Where relevant, I take into account the time that you have spent in custody. I now turn to consider your individual situations.

Simoni Vea

[9] You are 23 years of age. You are the fourth of your parents' eight children. You told the probation officer that you quit school in form 4 due to your low achievements. You then returned home and started helping your father with bush work.

[10] In August 2001 you were sent to prison for one year for possessing and growing Indian hemp. Six months of that sentence was suspended for one year. The probation officer reports that sometime after your release from prison you began your association with 'Unaloto and that is when you started leaving home and getting into trouble.

[11] According to the probation report, you blame 'Unaloto for encouraging you to commit a lot of the offences you are now appearing for sentence on. You say that the marijuana you were involved with was for your own use. The probation officer reports that you are remorseful.

[12] You are appearing on a total of 22 charges. I will go through them all and sentence you on each. You can take it and so can your co-accused that the sentences I would have imposed in each case would have been between a quarter and a third more severe had it not been for your guilty pleas. I will also make an appropriate adjustment for your guilty pleas when I fix the end sentence.

CR 231/05

[13] This indictment involves one count of possession of cannabis. I accept that the amount involved was small but it does come on top of a previous conviction and a prison sentence for possessing and growing cannabis. It is clear, in other words, that you have learned nothing from your previous experience with the court in relation to drug offending. The sentence on the one count is nine months imprisonment.

CR 284/05

[14] This indictment relates to three housebreaking and three theft charges which were all committed in September and October 2005. I regard these charges as serious offences. They each involved a break in to a private home. The value of the goods stolen on the three respective occasions were $8,000, $4400 and $3400. On each occasion you stole a laptop computer as well as a liquor and a variety of other goods. Stealing laptop computers, in fact, seems to be a feature of most of your collective housebreaking ventures.

[15] I can imagine the distress each of these offences caused to the respective house occupants. The court has a duty to send a clear message to budding criminals that housebreaking and theft cases, which are far too prevalent in Tongatapu these days, will not be tolerated. On each of the three housebreaking charges the sentence I impose is four years imprisonment. On each of the three theft counts the sentence I impose is two years imprisonment.

CR 243/05

[16] This indictment relates to two drug offences. Possession of an illicit drug and use of an illicit drug. In both cases the drug involved was cannabis. The offending took place at the Dupincia Bar where you were apprehended by the police. Again, I accept that the amount of cannabis involved was not large. On each of the two counts you are sentenced to nine months imprisonment.

CR 88/06

[17] This indictment relates to another housebreaking and theft charge relating to a break-in to the home of Penelope Dutton on New Year's Eve -- 31st of December 2005. The items of jewellery and other valuables stolen on that occasion were valued at just under $30,000. The complainant was no doubt out celebrating the incoming New Year at the time while you and your co-accused were invading the privacy of her home and committing this despicable act. The sentence I impose on the housebreaking count is four years imprisonment and on the theft charge the sentence is three years imprisonment.
CR 109/06

[18] Under this indictment you are facing three counts of housebreaking, three of theft, two charges of conspiracy to theft and three counts of conspiracy to housebreaking. All the offences were committed in September and October 2005. Again, they all involved break-ins to private dwelling houses and each of the theft charges involved goods well in excess of $500.

[19] On each of the three housebreaking charges you are sentenced to four years imprisonment. On each of the three theft counts you are sentenced to two years imprisonment. On each of the three conspiracy to housebreaking charges you are sentenced to two years imprisonment. On each of the two conspiracy to theft charges you are sentenced to one years imprisonment.

[20] The total of all those sentences I have just imposed is 53 years six months imprisonment. In these types of cases, however, the court applies what is called the totality principle. That means that when an offender is being sentenced for a number of different crimes at the one-time, the court tries to ensure that the total combined sentence is not excessive or unjust. In making that assessment, the court takes into account the types of offences involved and the circumstances of the accused. That is the advantage of having all your sentences dealt with at the same time.

[21] Applying that totality principle in your case, if it had not been for your guilty pleas, I would have been looking at a total sentence of up to seven years imprisonment. However, as I have explained, you are entitled to a significant discount for your guilty pleas and I also take into account the period of time you have been kept in custody while awaiting sentence.

[22] In all the circumstances, I consider the appropriate sentence in your case is five years imprisonment and that is the order I now make. To achieve that figure, I order that all the sentences I have just imposed are to be concurrent and concurrent with the sentences in the other indictments (four years) except for count one on CR 109/06 (one years imprisonment for conspiracy to housebreaking) which is to be served consecutively to the other four-year sentence making the total sentence of five years imprisonment.

[23] You have earlier been given a suspended sentence by the court and that obviously did not make any difference. In the circumstances, I do not consider it appropriate to suspend any part of the sentence of five years imprisonment which I have just imposed.

'Unaloto Vea

[24] You are appearing for sentence on a total of 16 charges. You are 27 years of age. You are a married man with one child. You have previous convictions, the most significant of which is a conviction in April 2004 for two counts of possession of cannabis and one count of growing cannabis.

[25] You appealed your sentence in that case to the Court of Appeal and in July 2004 the Court of Appeal fixed your sentence at two years nine months imprisonment. You were ordered to serve one year three months and the balance of 18 months imprisonment was suspended for two years from the date of your release from prison. Crown counsel has informed the court that you were released from prison on 17 March 2005. Clearly, therefore, your present offending has occurred well within the two-year period of your suspended sentence. You did not keep out of trouble for very long following your release last year from Hu’atolitoli.

[26] Your wife told the probation officer that after your release from prison she expected and hoped that you would not get involved in any more crime but you did and you ended up even involving her in some of your criminal activities. She is now alongside of you also appearing for sentence today.

[27] It would appear from the probation officer's report that you obviously come from a very respectable background. Your father is president of the Mormon Church at 'Eueiki Island. You were involved in the church helping your father for a period. Now, however, you have brought shame and disgrace on your family and your church and one can only feel immense sorrow for them and your own young son.

[28] On the credit side, the probation officer reports that you are genuinely remorseful and you have now made up your mind that when you are eventually released from Hu’atolitoli you are going to commit yourself to the church and give up crime and that is what you told the court this morning. That is commendable. I only hope that you are able to stick to that plan.

[29] Like the others, you are also entitled to credit for your guilty pleas and I take into account the time that you have already spent in custody. It is clear, however, from the probation reports I have seen that you have effectively been the ringleader in your little group of offenders. One of the aggravating features of your conduct is that you have succeeded in involving your younger brother, your wife and your mother in criminal activities and they are all now appearing for sentencing with you this morning.

CR 236/05

[30] This indictment involves one count of possession and one count of use of an illicit drug, namely, cannabis. The amount involved is small and I take into account what you told me when the summary of facts was read out to you the other day about the search by the police of your motor vehicle. The fact, however, is that you have an earlier serious conviction involving drugs and you have, obviously, still not learned your lesson. On each of the two counts you are sentenced to nine months imprisonment.

CR 285/05

[31] Under this indictment you pleaded guilty to one count of abetment of housebreaking, one count of theft and one count of abetment to theft. The first two counts relate to a break-in of Mele Vuki's house at Tu'atakilangi in September 2005 where the value of the goods stolen exceeded $4000. The other count relates to your involvement as the driver of the getaway vehicle when your co-accused stole items from Dimity Taylor's home at Kolomotu'a. On the abetment of housebreaking charge you are sentenced to three years imprisonment. On the one count of theft you are sentenced to two years imprisonment. On the abetment of theft count you are sentenced to two years imprisonment.

CR 244/05

[32] This indictment contains one count of possession and one count of use of an illicit drug, namely cannabis. I repeat what I said to your co-accused Simoni about these two counts. I accept that the amount of illicit drug involved was small. Your sentence is nine months imprisonment on each count.

CR 90/06

[33] This indictment contains one count of conspiracy to theft and one count of receiving stolen goods. The charges relate to the theft from Penelope Dutton's home on 31 December 2005. The value of the goods stolen was considerable. On each of the two counts you are sentenced to three years imprisonment.

CR 110/06

[34] There are four counts in this indictment. The first two counts of conspiracy to housebreaking and abetment to theft relate to a break-in at the home of Molly Collier at Fangaloto on 12 September 2005. The third and fourth counts of conspiracy to housebreaking and abetment to theft relate to a break-in at Ben Sunstrom's residence at Kolomotu'a on 4 October 2005. On each of the two conspiracy to housebreaking counts you are sentenced to 3 years imprisonment. On each of the two abetment to theft counts you are sentenced to two years imprisonment.

CR 94/06

[35] This indictment contains one count of housebreaking and one count of theft. The charges relate to the very serious break-in at 'Apifo'ou College on 12 February 2006 and your theft of computer equipment valued at $20,000.

[36] Every school in the Kingdom is struggling for money these days to make ends meet and to try and provide the basic equipment needed to educate their young pupils. Many of the teachers, parents and others associated with a school make big sacrifices in order to obtain luxury items like computers. I consider the charges relating to this particular incident to be the most serious before me today.

[37] Your selfish criminal actions would no doubt have had a devastating effect on the school principal and his staff and I also have no doubt that the disappearance of the computers would have upset the students learning programme and study.

[38] The other aspect of any crime committed at a school is the unknown factor of what influence and effect (if any) it may have on the actual pupils in later life. Your break-in and theft would not have gone unnoticed by the pupils and sadly the reality is that it might very well encourage one or more of them at some stage to try and emulate your feat. On each count you are sentenced to five years imprisonment.

CR 138/06

[39] Under this indictment you are charged with one count of receiving stolen artifacts. Your co-accused on this occasion were your wife and your mother. I am sure that this will be one of the offences your wife had in mind when she told the probation officer that you had started to get her involved in criminal activities as well. I have no doubt that you knew from the outset that the goods you had received were stolen. I do note, however, that Crown counsel agreed upon arraignment to amend the indictment to show a considerable reduction in the value of the items involved. The sentence I impose is one years imprisonment.

[40] Overall, I consider your offending to be more serious than Simoni's and, as I said before, I am satisfied that you were very much the ringleader of the group. Applying the totality principle, the sentence I would have been looking at imposing had it not been for your guilty pleas would have been in the order of eight years imprisonment. Given your guilty pleas, however, and the time that you have already spent in custody, I reduce that figure to six years imprisonment. That sentence is obtained by making all the sentences concurrent and concurrent with the sentences in the other indictments (five years) except for count 1 on indictment CR 138/06 (one year) making a total of six years.

[41] Unfortunately, as I indicated earlier, your offending triggers off the suspended sentence imposed by the Court of Appeal of 18 months imprisonment. I see no valid reason why that suspended sentence should not now be invoked and I order accordingly, that means that your total sentence is 7 1/2 years imprisonment.

Luseane Vea

[42] You are 'Unaloto's wife. You are 25 years of age. You married 'Unaloto in 1998 and you have a 14 month-old son. Your son's father has just been sent to prison for 7 1/2 years and you are also facing a prison sentence.

CR 91/06

[43] This indictment involves one count of conspiracy to commit theft and one count of receiving stolen property. The charges relate to the theft from Penelope Dutton's house on New Year's Eve 2005. I sentenced your husband to three years imprisonment on each of those charges.

[44] The court has before it a very helpful probation report in your case. Unlike your husband, you are a first offender. You told the probation officer that you were led into this offending by your husband and you had no knowledge that an offence had been planned. I accept all of that. You told the probation officer that at home you were always arguing and quarrelling with your husband and again I accept that. I do not think that you have had an easy marriage by any means.

[45] You did not plead guilty at the first opportunity. You told the probation officer that you wanted to plead guilty but your husband told you not to. I accept that statement. It is consistent with my own observations of you and your husband at the time that you were arraigned. It is something that I suspected at the time. I will proceed, therefore, on the basis that you pleaded guilty at the first opportunity and you are entitled to full credit for your early guilty plea. This does not, however, diminish the seriousness of the charges you are facing. The sentence I impose on the one count of conspiracy is 18 months imprisonment.

CR 93/06

[46] This is one charge of abetment to theft. The theft was carried out by your husband. Again, I am prepared to accept what you told the probation officer that you were not involved in any of the planning and you simply went along for the ride not knowing exactly what 'Unaloto was intending. I have no doubt that 'Unaloto was the mastermind and that your part was very much in the background. Again, however, it is a serious offence. On the one count of abetment to theft, you are sentenced to 18 months imprisonment.

CR 139/06

[47] This indictment relates to one count of receiving. 'Unaloto faced the same charge and I sentenced him to 12 months imprisonment. I accept that your involvement would have been something less than his. The sentence I impose on the one count is nine months imprisonment.

[48] All the sentences are concurrent and concurrent with the sentences imposed in the other indictments which makes a total sentence of 18 months imprisonment. I have given careful thought to suspending all or part of your sentence. I am very much influenced by the fact that you are a first offender, that you co-operated fully with the authorities and you pleaded guilty at the first opportunity. I also have no doubt that you only became involved in these criminal acts because of the influence brought to bear by your husband. From my observations, he has a strong personality and I accept that the reality is that once he made up his mind about something, you would have little choice in the matter.

[49] I am sure that you will benefit from a suspended sentence. You will be living in the knowledge that your husband is in jail and if you commit any other offence or fail to comply with the conditions of the suspended sentence then you will be in jail with him and your 14 month-old son will have to be looked after by others. I have no doubt that that will be incentive enough for you to keep out of trouble in future.

[50] I am, therefore, prepared to give you a final chance. I now suspend the whole of the 18 months imprisonment I have just imposed for a term of three years from todays date upon condition that you carry out 100 hours of voluntary community work pursuant to the Work Order which is now served on you.

Taumoefolau Tulikihefua

[51] You are 'Unaloto's younger brother. Your mother who also appears for sentencing is alongside of you. You are only 17 years of age. The probation officer assesses you as a high risk offender. You smoke and drink alcohol. You were expelled from Liahona College when you were in Form 2 because you were found smoking inside the school premises.

[52] According to the probation officer, after your expulsion from college you returned home to 'Eueiki and you helped out with bush work. It appears from the probation report that you were later encouraged into crime by Simoni and 'Unaloto. I accept that.

[53] You are now facing sentence on 18 counts and they are all serious charges. The probation officer reports that while you have never been the instigator of the offending, you have assisted willingly and that is very disturbing to hear. The probation officer also notes that, although you seem to regret your involvement, he thinks that you are only saying that without thinking too deeply about it. Again, that is not the type of information that is going to assist you when it comes to sentencing and the probation officer's observations cause me considerable concern.

[54] I take into account the fact that before this outburst of offending in September last year, you had no prior convictions. I also take into account your age and your early guilty pleas.

CR 111/06

[55] Under this indictment you are sentenced as follows. On each of the two housebreaking charges two years imprisonment; on each of the two counts of conspiracy to housebreaking counts you are sentenced to one years imprisonment; on each of the two theft counts one years imprisonment and on each of the two conspiracy to theft counts nine months imprisonment.

CR 283-286/05

[56] Under this indictment you are charged with five counts of housebreaking and five counts of theft. On each of the five housebreaking counts you are sentenced to two years imprisonment. On each of the five theft counts you are sentenced to one years imprisonment.

[57] The sentences I have just imposed total 24 1/2 years imprisonment. Applying the totality principle, the appropriate sentence in your case would probably be in the order of five years imprisonment. Making allowance for your guilty pleas, however, the sentence I impose is three years imprisonment.

[58] I have given very careful consideration to the question of suspending all or part of your sentence. I am particularly influenced in my decision by your good record up until now, you're guilty pleas and your cooperation with the authorities. I also take into account the fact, which I accept, that you were badly influenced by your older brother and your other co-accused. That is a major consideration.

[59] But to me the most important factor and the issue that makes your sentencing such a difficult exercise is your age. You were only 16 years of age when the offences were committed. In December 1995 Tonga acceded to the Convention of the Rights of the Child and, although the convention does not yet have the force of law in the Kingdom, its accession shows a willingness by Tonga to be bound by its terms. In any event, this court is entitled in the exercise of its discretion when it comes to any question of sentencing involving young offenders to have regard to factors such as international conventions.

[60] Under the convention in question, a child is defined as any person under the age of 18 years. Article 37 then states that imprisonment for any child should only be ordered as a measure of last resort. Notwithstanding, therefore, the serious nature of your offending, your age is a major consideration when it comes to sentencing. The probation officer has recommended a suspended sentence subject to strict conditions. Having given the matter a great deal of thought, I consider that the probation officer's recommendation is appropriate.

[61] Subject, therefore, to the conditions recommended by the probation officer which I will say more about in a moment, I am prepared to suspend the whole of the three-year imprisonment sentence for a term of three years from todays date. The conditions are that you carry out 120 hours of voluntary community work in accordance with the Work Order which is now served on you. You will note that your supervisor is a senior officer with the Salvation Army and I am pleased to see that the probation officer has already spoken to him about the community work you will be required to carry out. The second condition is that you are to enroll for, participate and complete the Salvation Army Alcohol & Drug Awareness Programme. The third condition is that for the first year of your sentence you are placed under a curfew which is to be supervised by your probation officer and you are to stay at home with your mother between 6 p.m. and 6 a.m. every night unless the probation officer authorises otherwise. The final condition is that you are placed on probation for a term of three years. You are to obey any directions given to you by the probation officer and he has the power to vary your curfew conditions if he thinks fit.

[62] If you obey those conditions that I have just imposed and keep out of trouble for the next three years that will be the end of it. If, however, you do not obey those conditions you will be arrested and brought back here and then sent to Hu'atolitoli to serve the three-year sentence which I have just suspended. Furthermore, if at any time during the next three years you commit some other offence punishable by imprisonment then, in addition to that punishment, you will be required to serve the three years which I have today suspended. So, hopefully, those considerations will be a sufficient incentive for you to keep out of trouble in future. It is certainly the one and only chance you will be given by any court to straighten out your life. The Salvation Army officer is present at the back of the court and I expect you to meet with him as soon as this sentencing has been completed to make the necessary arrangements for enrolling in the Alcohol and Drug Awareness Programme.

Unise Tulikihefua

[63] Today must be a particularly sad day in your life. You are a 62-year-old grandmother and not only have you been sitting here listening while I have been imposing sentences on two of your sons and the mother of one of your grandchildren but now you find yourself facing sentence for the offence of receiving stolen property, namely Tongan artefacts.

[64] I have read the helpful probation report in your case and I have listened carefully to the submissions from your counsel. You and your husband seem to have been doing good work for the Mormon Church on the island of 'Eueiki where you have resided for the last 13 years. Today must be the low point, however, in your family life.

[65] In relation to your particular offending which is the one count of receiving stolen property, I accept what your counsel said that when you were initially approached by your son 'Unaloto and Luseane and asked if you wanted to buy the artefacts you did not know that they were stolen. I believe what the probation officer says about the events that followed after that. You were going to approach your children overseas for money to buy the goods and you did not want them stored in your home because you had twice been broken into. You, therefore, had then taken to your cousin's place and it was only when they were unwrapped at your cousin's home that you noticed a name on some of the artefacts and you realised that they had been stolen.

[66] The probation officer reports that you're very embarrassed and you apologise sincerely to the court for your actions. You also told the probation officer that you could guarantee that you would never appear in court again and you deeply regret your involvement in this matter. I accept all of that. I have no hesitation in accepting that, sadly, you were led astray by your son 'Unaloto. You pleaded guilty at the first opportunity. You are 62 years of age and you have never committed any other offence.

[67] Against that background I am prepared to accept the probation officer's recommendation. You are convicted and discharged on condition that you now sign a Good Behaviour Bond pursuant to section 198 of the Criminal Offences Act. The bond is to be for a period of one year. If you keep out of trouble for that period, which I am confident that you will, that will be the end of the matter. If you do get involved in any other offending, however, you will be brought back here for sentencing in relation to the present charge.

NUKU'ALOFA: 28 June 2006

ACTING CHIEF JUSTICE