Rex v Leone [2013] TOSC 34; CR 202 of 2011 (17 September 2013)

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

NO. CR. 202 of 2011

REX

v

VEIMAU LEONE

S. Sisifa with Ms L. Macomber for the Crown
'O. Pouono for the Accused

SENTENCE

[1] The accused has been convicted after trial of one count of fraudulent conversion by a Government Servant contrary to Section 53 of the Criminal Offences Act (Cap 18). The maximum penalty for this offence is 10 years imprisonment.

[2] The brief facts, as found proved, are that the accused, while holding the rank of Inspector of Police and being the Officer in Charge of the 'Eua Police Station diverted approximately 200 litres of diesel fuel valued at approximately $546.00 to his own use. His method of operation was to divert part of the weekly, allocation of fuel to the police's vehicle P1660 by filling, about 20 litres into a tank of his own at the bowser and taking the fuel home, rather than filling the whole amount allocated into the vehicle. This happened about ten times.

[3] The offences came to light in March 2011 and the accused retired from the Police Service the following July, He is aged 57, married with nine children. He is now occupied as farmer. He is a first offender.

[4] Mr Pouono described his client's conviction as a disaster for himself and for his family. His reputation on the small island of 'Eua where he had hoped to return and to be of service to the community had been irretrievably sullied.

[5] In 'Eukaliti v Police [1994] Tonga LR 80 Chief Justice Ward said as follows:

"In broad terms when sentencing a first offender who has committed an offence solely against property the court should consider a sentence that would not immediately result in imprisonment ... However there are many exceptions to the proposition. The nature of the offence itself and any aggravating circumstances in the manner in which it was committed, the overall harm to the victim and the attitude of the defendant subsequently should all be reflected in the sentence. Some property offences are almost certain to result in imprisonment if committed by an adult offender".

[6] In Wall v R [2001] Tonga LR 238, a case of embezzlement, the Court of Appeal said:

"We accept the submission that thefts carried out by persons in positions of trust can be difficult to detect. When they are detected a sentence calculated to discourage others-from behaving in a like manner should be imposed".

[7] In R v Barrick 81 Cr App R 78 the English Court of Appeal took the opportunity to make some observations on the proper sentence to be passed in respect of certain types of theft and fraud:

"The types of cases with which we are concerned are where, for example, an accountant, solicitor, bank employee or postman has used his position to defraud. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again, as in this case, that he will never again offend and, in the nature of things he will never again be able to secure similar employment with all that means in terms of disgrace for himself and hardship for himself and also his family".

In such cases, the Court remarked:

"A term of immediate imprisonment is inevitable save in very exceptional circumstances or where the amount of money obtained is small."

[8] I take these observations into account. I also note in particular the position of trust enjoyed by the accused as Officer In Charge of the Police Station at 'Eua and the impact of this type of offending on public confidence in the police. Mr Sisifa referred only one or authority to me, R v Pongi [2000] Tonga LR 366 merely, I think, because that was the only reported case which he could find of a person charged with the same offence as that with which the present accused has been convicted. Pongi was, however, only a trivial loss and the facts which led to a fully suspended sentence of imprisonment are quite dissimilar to those now before the court.

Result:

Although the amount of money involved in this case is not substantial, the accused pursued a planned course of offending. I can find no exceptional circumstances to justify departing from a term of immediate imprisonment. The accused is sentenced to 18 months imprisonment with the last six months suspended for two years following the date of his release upon condition that he be of good behaviour during the operational period of the suspended sentence.

CHIEF JUSTICE

Dated: 17 September, 2013.