Rex v Bloomfield [2013] TOSC 19; CR212.2010 (24 October 2013)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 212of 2010

REX

V

TAFOLOSA BLOOMFIELD

BEFORE THE HON. JUSTICE CATO

Mr. Kefu for the Crown
Mr. Posesi Bloomfield for the Prisoner

SENTENCE

[1] The prisoner, Mrs. Bloomfield, was convicted after a trial lasting about three weeks before a judge and jury of one count of embezzlement contrary to section 158 of the Criminal Offences Act. The sum initially alleged to be converted from her employer Forum Travel Ltd between the months of September 2009 to March 2010 was said to be $246, 166 to her own benefit.

[2] The Crown, however, during the course of the trial the amended the particulars of money alleged to have been applied to her use. It was alleged, finally, that the amount converted by Mrs. Bloomfield was $204,033.09. This was made up of $121,199.19 that had been the subject of false invoicing after moneys either cheques or cash had been received by her to pay for tickets; a further $60,951.30 had been received by her for tickets that had been paid for, but where tickets had not been issued or had been cancelled by her, and the sum of $21,882.60 which was known as the Jas Log shortfall (her daily receipts) for the dates of the 12th, 16th and 17th March 2010. This made a total sum of $204,033.09.

[3] During the course of the trial, evidence was led also that Mrs.Bloomfield had wrongly and against company instructions credited certain other travel agencies which did not have the ability themselves to directly issue tickets with tickets which were and probably remained unpaid. False invoices were also prepared to cover up these transactions. At the trial, however, the Crown acknowledged that they were not in a position to prove that Mrs Bloomfield had in fact received cash or cheques to meet the debts on these tickets from the travel agencies concerned. It seems that these debts were unpaid so that Forum Travel had to account to the Airline for the value of these improperly issued tickets in the sum additionally of $66,384.00. The Crown, at trial, led this evidence as part of the pattern of the deception when it came to the process of false invoicing. However, for sentencing purposes, I approach the matter as involving the sum of $204,033.09.

[4] I also add that I find beyond any reasonable doubt, that the amount alleged by the Crown of $204,033.09 was applied by Mrs Bloomfield fraudulently to her own use, although in order to sustain a conviction the Crown had only to prove of that amount. The methods used were obviously associated with acts by Mrs. Bloomfield; false invoicing, issuing tickets and then cancelling them, all to give the impression that her ticketing and receipt of cash and cheques as a senior consultant was in order when it was far from so.

[5] Mrs Bloomfield, who elected not to give evidence or call evidence at trial, appeared to acknowledge to her probation officer that she had acted wrongly in false receipting, but she minimized the suggestion to her probation officer that she personally had benefited from the fraud. The suggestion seems to be that she did this only to benefit third parties for whom she had given credit and wrongfully let her down by not paying of Forum Travel. A person related to Mrs Bloomfield and with earlier experience in the Airline industry has suggested in a reference on her behalf that in fact false invoicing had been widespread in the Airline industry earlier as part of the extension of credit to passengers and perhaps that, although this was wrongful, Mrs Bloomfield was doing no more than others had done. I simply do not accept at all that false invoicing was in any way defensible, whenever it may have occurred, and I find also that Mrs Bloomfield contrary to any protestation she made to the probation officer, did in fact take the proceeds in the sum of $204,033.09 and I am quite unable to draw any other inference on the evidence produced by the Crown at trial. The Crown made allowance appropriately for the substantial amount $66,384.00. I accordingly reject that she did not receive the money the subject of charge and misapply it although I still have no idea where it went, or to what it was applied. I sentence her on the basis she received $204,033.09.

[6] When it came to this hearing, counsel for Mrs.Bloomfield asked me not to act on those parts of the report in which Mrs Bloomfield rejected responsibility for her actions. He said she now accepted responsibility for what she had done. As I have said, the evidence in my view was so strong, that I have no intention, in any event, of accepting such explanation. However, it was helpful to me that she now appeared to accept responsibility for her actions, albeit at a very late stage.

[7] Mrs Bloomfield, at the sentencing hearing, also made a fulsome apology for her actions and indicated she had written a letter of apology to Ms Gardiner which I asked the Crown to pass on to her. She also expressed extreme sadness for the children and her husband who are innocent victims. I sensed in Mrs. Bloomfield, however, someone who was moving away from a stage of denial which had been her attitude until recently, to a more accepting sense of responsibility. Her fall from grace as awoman of some standing formerly in the Tongan community has been very considerable. Although she has struggled to come to grips with this, I accept her tearful and in fact rather graceful statement today in court amounted to probably a genuine expression of public contrition. However, notwithstanding, the credit I can give her for this can only be measured. She put the Crown to proof, over a period of three weeks, her former employer Ms Gardiner gave evidence in demanding circumstances for some 7 days and other colleagues also had to give evidence as she persisted in her denial at trial. There has been no offer of restitution and no explanation at all as to where the money went.

[8] I had very great difficulty in understanding why after several years of trusted employment and with all the obvious respect and standing she had in the Tongan community and with a supportive family, Mrs. Bloomfield should have engaged in her spree of deception in 2009. No explanation was forthcoming. She chose to accept responsibility and advanced no reason why she behaved as she did. I cannot speculate as to why she behaved as she did.

[9] As I indicated to her counsel, one of the factors I found concerning and aggravating, also is that she inveigled at least one young employee into her deception by instructing her to make out false receipts to cover her fraud. This employee, who gave evidence, said she trusted Mrs. Bloomfield and I accept that unequivocally. She had exposed Mrs. Bloomfield when she could not reconcile her daily receipts. She lost her job and was an innocent victim in my view also of this offending.

[10] The references I have read from Church, other organizations, relatives and others with which she has been involved, speak warmly of her good deeds and character. Several, who have spoken of her trustworthiness, have it seems no concept of the extent of the deception she practiced on Forum Travel. I accept, however, she was formerly a person of good character, contributed particularly in the Tourism industry to Tonga and had standing in the Tongan community. She will get some credit for this.

[11] Her deceit, however, was audacious to say the least, as it was rapacious or avaricious over a period of about 9 months in 2009-2010. Mrs. Bloomfield had considerable experience in the travel industry before she joined Forum Travel. She was obviously entirely trusted by Miss Gardiner and for some years she acted accordingly; but in 2009 for some reason, still unexplained, she determined to fraudulently exploit her employer's trust. Over a period of several months, she embezzled large sums of money by manipulating daily ticketing balances, issuing and then cancelling tickets, taking money or cheques from one customer to apply to the account of another customer to settle issued tickets, and then falsely issuing invoices to give the appearance of moneys owed to Forum Travel from various government organizations, church, foreign embassies and other entitles, and private individuals. These accounts were all selected by her and in this period she operated her deception, there were many fraudulent acts, some of very significant financial deception, which accounted for the embezzlement of $204,033.09.

[12] It was fraud that inevitably would be exposed but she managed to get away with her dishonesty because the accounting system did not detect the frauds until one day, a deficiency in her daily balance was noticed by the junior staff member, whom I have mentioned, who up until then seems to have trusted Mrs. Bloomfield. Despite Mrs Bloomfield's excuse for the missing money, it became apparent that there was a very serious problem. Ms Gardiner conducted interviews with her with the company lawyer being also present at one interview. During these interviews, the prisoner admitted in essence her fraud, to taking some of the money and allowing credit friends but the true extent of the losses was not revealed until the company engaged on a more extensive, time consuming and probably expensive independent and resident audit.

[13] I am informed by Mr Kefu that the embezzlement caused serious financial difficulty for Forum Travel to the extent that the business had to be sold. Forum appeared to be a good business which had operated well and to which Mrs Bloomfield had made an obvious contribution for several years before she and her co-accused defrauded it of the significant sum alleged in the indictment. Ms Gardiner had some years before asked Mrs Bloomfield who was working for another agency to work for Forum Travel. Ms Gardiner, obviously, would have good reason to feel very let down by the serious breaches of trust of her formerly trusted senior consultant. Ms Gardiner continues to be involved in the business under the new entity.

[14] During the course of the investigation, it appeared that one other employee had also been involved in the fraud. He pleaded guilty shortly after what was then a joint trial had commenced. The sum he pleaded guilty to embezzling amounted to $88,051. I sentenced him to a period of imprisonment of three years, 3 months with the final 12 months suspended. When sentencing him, I formed the view that he bitterly regretted his involvement. I took the view that some credit could be given for his very late guilty plea in the face of what was a strong Crown case of deception on his part as a trusted travel consultant. He also had a previous conviction for forgery and embezzlement for which he had been sentenced to 2 years imprisonment in 1998 with the final 18 months suspended for three years.

[15] This was by Tongan standards very significant embezzling. I observed that through the trial Mrs Bloomfield was an extensive note taker and appeared to be taking close interest in the trial, including giving her counsel instructions. I formed the view she was an intelligent woman.

[16] I have read the probation report, references and report on the children filed by the defence. It saddens me to think that a mother of 4 children and a wife of a person holding a responsible position in Tonga with all the advantages that this should bring should engage in conduct of this kind. She held a senior position in Forum Travel. She seems to have been trusted and well regarded by others in the community and I have read several references from people who hold her in very high regard, the Church and The Tongan Tourist Association in particular with whom she had held an executive position. I have also read a report on her 4 children from a social worker, the childrens' letters of support, and I also express concern understandably for the position in which Mrs Bloomfield had placed her children and her husband. I have no doubt that Mrs Bloomfield was a good mother and wife and the children and her husband will bitterly miss her. I am concerned for the well-being of these children and hope that her extended family can give these children and father all the support they will require over the period Mrs Bloomfield is in prison. I note that counsel for Mrs Bloomfield asserted that although it seems her husband is in an executive since Mrs Bloomfield lost her position. I do not regard this as a mitigating factor. Indeed, I was told very little about the family's financial circumstances.

[17] Courts have only a very limited ability to grant mitigation on the basis that a mother is involved in criminal activity and to imprison her will deprive children of her care. The children are not of very tender age and nor is the prisoner a sole parent. They, however, are the innocent victims of their mother's deception. It is very surprising to me that she seems to have dismissed from her mind the adverse consequences to her family when her fraud would be detected.

[18] Sadly, it has been my experience that embezzlement is prevalent in Tonga. I have had to sentence people too often (mainly youngish persons in clerical positions of trust), to terms of imprisonment for embezzlement of financial and other institutions. I have repeatedly expressed my concern about this.

[19] This case is by far the worst of its kind I have encountered here, however. The fraud was systematic, frequent and carried on over a lengthy period by a mature person who could only be regarded as a trusted and senior consultant. Further, she was not a young person exposed often to the temptation of peer or it seems family pressures. She had many years of experience in the travel business, as I have said.

[20] Breach of trust has always been regarded by the courts as the paramount sentencing consideration in cases of this kind. Without trust, business cannot efficiently function and flourish. Without business being viable, there will be limited employment and commercial opportunity in Tonga. Embezzlement damages the integrity of business.

[21] In my view, Mrs Bloomfield's conduct requires a strong deterrent message that embezzlement is a serious crime. I fix as a starting point a period of imprisonment of five years, taking into account the large amount of money involved none of which has been accounted for, the damage she did to Forum Travel, the extent of her deception and the involvement by her of others in her fraudulent scheme. I regard this offending and the frequency of it as in the upper level of offending, the maximum sentence for a sing count being 7 years. I have considered and approached as a guide to the level of sentence I should impose the judgment of the Court of Appeal in Wall v R [2001] Tonga L R 238 There, Wall, a Tongan aged 31 and a trusted senior representative of an overseas company doing business in Tonga, had pleaded guilty to embezzling on 11 occasions a total of $181,000. He also was a first offender. The sentencing Judge had sentenced him to a period of imprisonment of five years. On appeal by Wall, that sentence was reduced to 4 years imprisonment. The Court of Appeal, however, observed;

"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 Judges discretion."

[22] I now turn however to mitigating factors. There are few aside from her own previous lack of convictions, previous good character and her support of various organisations in the Tongan community. I also grant her some very limited credit for her late expression of contrition and acceptance of responsibility. In all, I allow her 8 months for these factors. That means the sentence I impose upon her is four years 4 months imprisonment for the court of embezzlement for which she has been convicted which I consider bears some reasonable parity with Wall. That is to be backdated to the time she was remanded in custody.

[23] I now turn to whether I should suspend any part of this sentence. My initial feeling when I came to consider this matter over the past few years was that I should not. There was nothing in the way of contrition, offer of restitution or acceptance of responsibility, form which I could infer that she was a worthy candidate for rehabilitation and of a suspended sentence. However, having heard from Mrs Bloomfield's counsel, and accepting that she has demonstrated some contrition and acceptance of responsibility for her deceit, I consider that a measure of partial suspension should be allowed. I have taken into account also that she has 4 youngish children who are bitterly saddened by their loss. I have read the report from a social worker about this. I accept that the children will all suffer from their mother's absence, but the suggestion advanced by the social worker in her report that this can be resolved according to a family conference recommendation of a community based sentence is unrealistic. I have given this a good deal of thought, after hearing from both counsel before adjourning sentence after submissions two days ago, until today. I have also considered such authorities as R v Collins [2008] EWCA Crim 2212; [2005] 1 Cr App R (S) 103; R v Attah – Benson [2002] EWCA Crim 26; [2005] 2 Cr App R (S) 52 R v Keeny [2004] EWCA Crim 2357 where these kinds of factors were taken into account but compare R v Greaves [2009] EWCA Crim 2701; [2008] 2 CR App R (S) 42 where they were not. See Banks on Sentence, 5th edition, at para. 1161. Mr Kefu provided me also with the judgments of the Court of Appeal in Havili 14th July, 2010, AC 2 of 2010 where a sentence of 9 months imprisonment with the last 3 months suspended was imposed where the prisoner had several children and a baby. The sentence was not interfered with by the Court of Appeal. In that case, there had been a breach of trust but the embezzlement involved a sum of only $2,141.64. The Crown also referred me to R v Kula [2009] Tonga LR 394 where the Court took into account in making sentences of dishonesty concurrent rather than partly cumulative with the lead sentence being three years for the theft that there would be hardship to the family of three children aged between 10 and 10 months.

[24] Although here, these children were not in the sole care of their mother and nor were they children of tender years, I am aware from all I have read that the children acutely will miss their mother, and her absence may have a deleterious affect on their well being. There is also some worth I consider in my view expressed in R v Collins that a custodial sentence imposed on a mother kept away from young children means that the impact of such a sentence is worse than it should be for someone else in that situation committing that offence. There, the children, however, were much younger than here and it seems in the sole care of the mother. Every case will turn on its circumstances, the age of the child and degree of dependency being important considerations. However, in my view the likely prejudicial effect on children is a matter which can legitimately be taken into account by a sentencing court particularly in a jurisdiction which has the advantage of the suspended sentence as England and Tonga both have. The degree of suspension must, however, be tempered by the countervailing public interest that those who commit serious crime should serve appropriate sentences of imprisonment. There must also I consider be parity with the sentence on Mr Fakava who pleaded guilty before evidence was commenced. Although a very late plea he was obviously contrite and acknowledged responsibility for his actions. Embezzlement by Mr Fakava was serious enough, and he was not a first offender but here the amount embezzled was much greater, and far more serious. For these reasons, I suspend no more than 12 months of the sentence.

[25] I accordingly, suspend the final 12 months of Mrs Bloomfield's sentence of 4 years and four months for embezzlement on the condition that she commit no further crimes of imprisonment for a period of 2 years. The sentence is to be backdated to the time she was remanded in custody.

DATED: 24 OCTOBER 2013
JUDGE