Rex v Kolomalu [2012] TOSC 25; CR 115 of 2011 (10 May 2012)

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

CR 115 of 2011

REX

V

Anaseini Kolomalu

Counsel: Ms Macomber for the Crown and Mr Tu'utafaiva for the prisoner

SENTENCING

The prisoner pleaded guilty on the 14th October 20011 to 2 counts;

1. A count of embezzlement under s 158 of the Criminal offences Act
   
2. A count of theft under section 153 of the Criminal offences Act
   

The Summary of facts indicates that in 2010 she was the sole accountant of Courts Tonga Ltd. Each day the cashiers would hand over the cash takings to her. It was her responsibility to prepare a cash summary of the day's takings before she would deposit the cash into the bank the following day.

Between the months July and October, 2010 internal audits showed that she had embezzled a total of $21, 051.20 from the company. It was during the time she had travelled to Australia that the audit was undertaken. She was said to have travelled to Australia in October 2010.

After she returned she was confronted and she admitted that she would prepare the cash summary of the day's takings and once the summary was approved by her superior she would then take some of the cash before she would pay in the rest to the bank.

None of the moneys have been paid back.

The accused is 28 years old, she fully co-operated with the police pleading guilty at first instance in her record of interview and she is a first offender.

The maximum sentence for both offences is 7 years imprisonment. The first seems to encapsulate the second.

Schuster J deferred sentence to enable the prisoner to attempt to make restitution on the 11th November 2011. She also had a very young baby at the time. She said on appearing before Schuster J and she confirms today she has that money with her for immediate payment.

I have had access to the probation report filed in this matter. Her explanation to the probation officer was that she had been misusing alcohol prior to the offending. She spoke of socializing with friends and finding it difficult to pay for drinks and so she helped herself it seems to the money from her employer. It seems however that this was not an isolated offence but one that took place in a systematic way for some months. She tells me today she has not had a drink since 2010

The defendant comes from a large family of 9 children. She comes from a very good Morman Church family at Ha'make. She confirms she is sorry for what she has done. She knows she has brought shame on herself and her community and her family. She says she is sorry.

The probation report suggests that it was her single life at the time that contributed to her committing these offences and that her life has now stabilised and she is living with her husband and young child. I note that it was in September 2010 that she was married. The offending took place it is said between July and October, 2010.

It would seem from the questions asked of her in Court that she left school with no formal education after that but engaged in a computer course and completed that and secured employment .

The report says that she is living with her husband in Ha'akame and that their relationship is good. There is no suggestion of any offending in the period that has passed. She has had a baby in late 2011. Her husband works. She has tried but it now unable to find work. That is as a consequence of her offending.

She appears to accept and appreciate her offending was wrong and showed remorse for it. That remorse I find genuine.

I have given close consideration to this matter. The most serious aspects of this offending is that there was a breach of trust with her employer. She would seem however to have been a more junior employee rather than someone high up the chain of responsibility and gave way to temptation to secure easy money to support her lifestyle. On this basis I do not see her breach of trust as falling into the category of that of a more senior and experienced employee. In Houghton 2008, EWCA Crim 1948, the Court in a theft from an employer case, observed that courts in breach of trust cases differentiate between those in which a high level of trust is placed and those where the offender occupies a relatively low position.

However, there are a series of misappropriations over the period and a quite sizable amount of money was taken in all $21,051.20

The principles that apply to this kind of offending involve deterrence and denunciation or condemnation of such offending. Employers are entitled to expect and rely on their employees to be honest. It is this factor which in my view means that I have to impose a sentence of imprisonment. There are no cases which set a tariff in this area and they vary greatly, but because of the breach of trust albeit from a subordinate employee, and the systemic nature of it and the sum involved I would set a head sentence of 18 months imprisonment. I do not over look cases which state that ordinarily offenders who steal property and the like should not go to prison if they are first offenders, such as Lausi'I and Taui'uvea v R but I consider that the factors of trust, and the amount of money involved and systematic offending take the matter out of this category. Indeed, in Filila Havilii v Rex AC no 02/201 the Court of Appeal considered that ordinarily it is appropriate for an offence of dishonesty and trust to receive a custodial sentence.

However the prisoner pleaded guilty at the first opportunity, and co-operated it seems fully with her employer on her return to Australia. Also she has also shown remorse for her actions and being a first offender which I consider a significant factor, I reduce that to 6 months imprisonment. She also it seems has managed to find $ 700 in compensation.

I also consider that the sentence should be fully suspended in accordance with the principles in Tukuafu v Police [2001] Tonga LR 151, and R v Mo'unga [1998] Tonga LR 154 and I do so on the basis that she be of good behavior and commit no further offending for a period of 2 years from today's date. My reasons are she is a first offender, appears to be leading a stable married life now and has a baby to look after. The offending took place between July 2010 and October 2010. That is quite a long time ago. She says she has not had a drink for a long time. She is a worthy subject for rehabilitation. This experience has been no doubt sobering for her. She has let herself down and indeed her family. She lost a good job although I do not treat this as a mitigating factor.

The issue which troubled me was the breach of trust factor but as against this what weighs with me is that she is a first offender, her rather youthful age at the time of the offending, and the sum of money whilst not insignificant is not a very sizable sum as it was in Heitonga, a more senior trusted employee of long standing whom I sentenced to prison earlier today. I also note modern English practice of sentencing in "Banks On sentence "( May 2010- 5th edition) at page 1318 refers to R v Hay 2010 EWCA Crim 218, where a woman who had earlier received a caution for stealing had over ordered stock and kept the surplus which she sold on EBay. She effectively stole about 3500 pounds worth of stock. She had overspent on store cards and she had debts. She was an industrious person. Custody was considered appropriate. However, because of her personal circumstances, the sentence was held to be 6 months suspended apparently reduced from 10 months imprisonment.

Accordingly, I suspend the sentence fully for a period of two years from today's date on condition that she commit no further offence punishable by imprisonment during that period.

I also make as a condition of her suspension that she do 120 hours community work to be supervised by Bishop Motekiai Touta of the Morman Church of the Community of Ha'akame to act as her supervisor in general cleaning and tidying of the community Area of Ha'akame. That I note is the maximum that can be imposed under the Criminal Offences Act and reflects the seriousness of her offending. The maximum period Parliament might give some consideration to increasing; however in my view in any event a sentence of 120 hour community work is a serious penalty, and reflects the seriousness of her offending.

I also make it a condition that she attends the Salvation Army drug and alcohol treatment program, and completes the same. Alcohol and adverse lifestyle it seems had much to do with the present offending, and she may benefit from counseling and not revert to a previous lifestyle.

I order her to attend as a condition of the suspension of the period of imprisonment the offices of the Probation office at Fasi and the Salvation Army in Fatafehi Road within the next 48 hours to register with them and undertake the community work and drug and alcohol treatment programme.

I have warned her that should she commit any other offence punishable by imprisonment over the next two years or breaches the terms of her suspension, she risks having to serve the sentence which has been suspended as well as any other period for any new offending.

I make an order that he sum of $700 be paid into Court immediately, and that it be paid in full to her previous employer Courts(Tonga) Ltd.

I make no further order. It seems to me that she has no real means of paying a fine of any consequence.

I do however vacate the conviction for theft. It seems to me that the offending is fully encapsulated in the embezzlement charge. I discussed this with the Crown and there was no objection to this.

I order that a copy of this judgment be sent to the Probation office and to the Salvation Army in Fatafehi Road.

Dated: 10 May 2012

JUDGE