Rex v Heitonga [2012] TOSC 26; CR 180 of 2011 (10 May 2012)

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

CR 180 Of 2011

REX

V

MELE TATAFU HEITONGA

BEFORE HON. JUSTICE CATO

Counsels : Mr. Sisifa, Ms Macomber for the Crown
Mr. Tu'uitafaiva for the prisoner

SENTENCING

Mrs. Heitonga has pleaded guilty to several counts of theft, forgery and dealing with forged documents contrary to the Criminal offences legislation; 2 counts of theft under 143, 4 counts of forgery under sections 170(1)(a), (2)(b), 3(a), (4) and 4 counts of dealing with forged documents, under section 172 of the Act. She did so on the first opportunity. These offences occurred between September 2009 and January 2011.

She is also a first offender and a married woman in a relationship still with her husband with two young children who are pre school age. She is aged 31. I am told by Mr. Tu'utafaiva that her husband and grandparents will look after the children during what will be an inevitable period of imprisonment

She comes before the Court sadly on charges of a serious kind.

The facts are not in dispute and are within a narrow compass. Essentially, she had been employed by a firm of accountants in Nuku'alofa since 2001. She had graduated from the St Joseph business school in 1999-2000, and a year later was employed by the firm of accountants. She appears to have done well with the firm being promoted from a junior clerk, to a more responsible and trusted employee, as the probation officer reports. Plainly, she was a trusted an senior employee; however over a period of about a year and four months by way of forging the signature of her employer on cheques, she acquired quite substantial sums $83,574.53 and $50,899.86 from two account relating to companies of which the firm of accountants were liquidators. She did this by forging her employer's name on cheques, then taking the cheques to a bank and cashing them, and retaining the cash.

It was part of her employment and responsibilities to administer the companies' accounts with the ANZ bank as part of their liquidation. She would deposit money received from selling assets of the companies with the bank and also issue payments through the firm's cheques. Plainly, she was in a senior trusted position. The law is said to distinguish between positions of trust involving seniority and more junior positions R v Houghton 2008 EWCA Crim 1948. I consider she was in a senior position of trust.

Equally plainly, she must have known that what she was doing was wrong and unlawful; yet she proceeded not once but on regular occasions it seems over quite a long period to forge and steal money in what by any standards is a reasonably sizable sum.

Offences involving repeated breaches of trust are taken seriously by the courts and a message of deterrence and condemnation is involved and indeed denunciation of such offending.

For these offences for which she stands convicted offences of theft (2 counts) and forgery (4 counts) carry a maximum sentence of 7 years imprisonment. For dealing with forged documents (4 counts) the maximum penalty is five years.

She grew up in a good family and the probation report records she grew up in a religious background and today there is evidence in the form of a reference and in the probation report. With this background she must have known that what she was doing was wrong. She maintains that she did this because she needed to pay bills, for transport reasons, and so forth such as small expenses. There is some suggestion in the probation report that she intended to pay it back from her wages but plainly the amount was significant and must have been used for more substantial reasons. The probation report although obviously sympathetic to Mrs. Heitonga also realistically describes imprisonment as inevitable.

I have before me, a probation report, a reference from the town officer of the Village of Ha'utu who speaks warmly of the service she has given the town, and speaks also of her contribution to the community and that she and her family are well liked in the community. The community indirectly have given her husband support in raising money which will be the subject of a compensation order.

I also note that Justice Schuster has deferred sentence in this matter to give Mrs. Heitonga time to repay the mount owing. She paid back it seem $10,000, and that has been paid into Court. I am told by Mr. Tu'utafaiva that this money was raised by relatives and her husband. I acknowledge that is a not an insignificant sum. I am told her husband works on a plantation and he is the only earner. I am told by Mr. Tu'utafaiva that he is still supportive of the prisoner.

It therefore falls to me to determine sentence. There is no case that plainly sets a tariff for this sort of offending. The cases are many and vary greatly as Mr. Tu'utafaiva has said. In his long experience, in his useful sentencing submissions he informed the Court he knew of no such precedent or offending of an amount such as this. I bear this in mind. I have also been assisted by the sentencing submissions of the Crown. The range however mentioned was very wide ranging from about 4 years to a sentence of months but none involved this kind of amount. Schuster J imposed 4 years recently in R v Tevita Kite CRN12/2012 I was informed for embezzlement of $18,624.00 over quite a lengthy period. That sentence was suspended for two years.

Cases of this kind however involve as I have said a measure of deterrence and denunciation. Taking in to account that this was a systemic offending over a period of about one year and four months by a person in responsibility and trust (a serious breach of that trust by a person who was in a position of seniority and charged with responsibility), and that there was a significant amount of money taken, I would fix a head sentence of 4 years and 6 months imprisonment for the theft and forgery offences that carry a maximum sentence of 7 years.

From that I give the prisoner full credit for her early plea of guilty, her apology and obvious remorse, and I also acknowledge that she has repaid $10,000. I also take into account that she is a first offender and of previous good character with a husband and young children. She acknowledges that she has brought shame on herself, her family and her community. Taking into account all those subjective or individual factors, I have mentioned, I give her a substantial discount I order the sentence of imprisonment be 2 years and six months.

I have considered whether I should suspend this sentence in whole or in part. I refer to the principles in Tukuafu v Police [2001] Tonga LR 151, and R v Mo'unga [1998] Tonga LR 154. I order that the sentence be suspended in part by 12 months because the prisoner is a good prospect for rehabilitation having expressed remorse, pleaded guilty at first instance and is a first offender. I consider that the offending is too serious within the principles expounded in that case and in R v Petersen [1994] 2 NZLR 533 to fully suspend the sentence for the reasons I have given, namely the breach of trust, the systemic thefts, and the sum involved, and that the public interest requires that a part of the sentence be actually served. I consider that is the least restrictive penalty that I can impose.

I also order that the $10,000 paid into Court be paid to the victim in this case which the Crown instructs me is the ANZ bank.

IT IS ORDERED THAT;

1. The defendant is sentenced to 2 years and six months imprisonment from the day she was remanded in custody prior to her sentencing by Schuster J on the 7th May 2012. In particular,
   

I order that the sentence of imprisonment be 2 years six months on counts 1, 2,3,5,7, 9 to be served concurrently with one another.

2. The defendant is sentenced to 12 months imprisonment on counts 4, 6, 8, 10 to be served concurrently with one another and counts 1, 2,3,5,7, 9.
   
3. The sentences of imprisonment are to run from the date on which she was remanded in custody.
   
4. I suspend 12 months of the sentence on counts 1, 2, 3, 5, 7, 9 for a period of two years conditional on the offender not being convicted of an offence punishable by imprisonment committed during the period of suspension.
   
5. I order that compensation in the sum of $10,000 be paid forthwith to the ANZ bank
   

I warn the prisoner that she must satisfy the terms of suspension namely not commit any further offences punishable by imprisonment during the term of her imprisonment or she may have to serve the balance of the term on the existing sentence as well as penalty for any other offending.

DATED: 10 May 2012

JUDGE