Rex v Lauka [2014] TOSC 7; CR119-120 of 2013 (17 March 2014)

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

CR119 – 120 of 2013

R E X

V

SOFIA LAUKA
'OTO TU'ITUPOU

Before The Hon. ACTING JUSTICE CATO

Mr Sisifa for the Crown
Mr Pouono for 'Oto Tu'itupou
Sofia Laukau unrepresented

SENTENCE

[1] The prisoners appear for sentence on different charges but charges arising out of the same transaction. Mr Tu'itupou pleaded guilty to one count of attempted conversion by a government servant contrary to section 53 (1) (3) (a) of the Criminal Offences Act. The particulars were that he did attempt to convert to the use of others two blank passports worth $172.40 from the Immigration Division of the Ministry of Foreign Affairs and Trade, which had been entrusted to him by virtue of his employment as an Immigration officer. Ms Laukau pleaded guilty to a single charge of attempted forgery of those passports contrary to section 170 (1) and (3) of the Criminal Offences Act.

[2] Both pleaded guilty at the earliest opportunity to the charges. Both have expressed contrition, and both have no previous convictions. These are important considerations in mitigation of sentence.

[3] However, in my view, the circumstances of the offending were serious. Mr Tu'itupou was a reasonably senior officer and employee of the Immigration section of the Ministry. Whist there, he was involved in a joint unlawful enterprise with Ms Laukau and possibly others to obtain false passports. He obtained and gave the uncompleted passports to Ms Laukau whose role was to arrange with a third party to insert photographs details of Chinese nationals into the passports. Ms Laukau gave the photographs to the third party promising her between $5000 - $10,000 for her part in the scam, acted as a whistle blower and informed the police. Mr. Tu'itupou said that Ms Laukau would get $1500 for her role in securing the false passports. Ms Laukau appears, so she says, to have been co-opted into the scheme by a person with whom she had formed an association since returning to Tonga from United States in 2006, and for whom she had worked. I do not know how much Mr Tu'itupou expected to gain for his role in this corrupt scheme, or for that matter Ms Laukau but I infer that for a government employee of reasonably senior rank to become involved it must have been reasonably substantial.

[4] Like Ms Laukau, on being confronted by police with his role, he admitted to it. Indeed, it seems he would have had little other choice because, when arrested, Ms Laukau handed over her mobile phone which recorded text messages she had exchanged with Mr Tu'itupou over the transaction.

[5] The offending as I say is serious. I was informed by Mr Sisifa that this may be the first case for sentence involving an attempt by a government officer to secure a false passport. Mr Tu'itupou was charged only with attempt, perhaps generously, because it seems he did secure and hand over the incomplete passports which would appear to have completed the offence of conversion, they being intended to become eventually the property of the Chinese nationals, once they had been forged with false identities. Although the corrupt object was exposed and frustrated, Mr Tu'itupou's role in it was complete. The effect of his pleading guilty to attempt, however, is that he is exposed to a maximum sentence for the offence of half of the maximum for the completed offence being in his case five years only, as opposed to 10 years imprisonment. For her role also categorized in her case correctly as an attempt, the maximum penalty Ms Laukau is exposed to is three and half years and not 7 years as would be the case for a complete rather than inchoate offence.

[6] I consider in the case of both prisoners, the offending merits starting points near to the maximum available for the attempts. The paramount sentencing consideration in my view is that corrupt scams of this kind go to the heart of and impugn the integrity and security of Tonga's passport regime and machinery of border control. Further, if those passports had been falsely issued then they could have been used for illicit purposes overseas. Offending of this kind has the potential to bring into disrepute Tonga in the eyes of foreign countries whose border controls and security depends today very much on the integrity of passports. It is very damaging and serious offending against Tongan interest, both internally and externally as it relates to foreign countries.

[7] It is made worse in Mr Tu'itupou's case by the fact that he had been an immigration officer for many years, a position he now justifiably has lost. He has been involved in a very serious breach of trust. Deterrence and denunciation of his activity and the protection of the integrity of the Tongan passport regime must be the principal sentencing considerations. The starting point I fix at 4 years and three months imprisonment.

[8] The mitigating factors are his early guilty plea, the fact he is remorseful understandably for the role he played and the fact he is a first offender. I have considered all the other individual factors. He seems to have had a good career up until this point, and he is a parent of a number of children. Fortunately for his family, I am informed his wife holds a senior employment position in Tonga and will be able to support the children whilst he is in a prison and into the future. He has lost his source of income which is an incident of his offending, but not a matter I can give any regard to by way of mitigation. For all these factors, I reduce his sentence of four years three months imprisonment, by 12 months to three years three months imprisonment.

[9] I now, in his case, come to consider whether I should suspend any part of his sentence. I consider it unlikely he will reoffend. Counsel advises me that he has already embarked upon a course of study. I accept he is contrite, he has pleaded guilty, and is a person likely to achieve rehabilitation. However, the serious nature of his offending and breach of trust requires me to temper the period of suspension. I suspend the final nine months of his three year three month period of imprisonment on condition he is not to commit any further crime punishable by imprisonment for a period of two years.

[10] In so far as Ms Laukau is concerned, I view her participation in this corrupt scheme as also very serious. Although she may, as she said on sentence and in remarks to her probation officer, have been seduced into committing this offending by an associate who is not before the Court, I do not accept for one moment her explanation that she really did not appreciate how serious the offending was. She was prepared to offer substantial sums of money to the person who she had asked to fraudulently complete the passports, and she cannot have believed, in those circumstances, that what she was doing did not carry risk and was other than serious offending. Like Mr Tu'itupou she would seem to have succumbed to the prospect of earning easy money and that corrupted and turned her from a formerly law abiding citizen of mature years into corrupt criminal. Like Mr Tu'itupou this has been a significant fall from grace. I view her role in this corrupt enterprise as similarly serious and her sentence must act as a deterrent to others minded to enter into passport scams. I consider a starting point of three years is appropriate in her case.

[11] I also for her early guilty plea, expression of contrition and previous good character discount the three year starting point by 12 months making her sentence two years imprisonment.

[12] I have also considered the remarks concerning her background in the probation report, the fact she spent many years in America before settling back in Tongan in 2006, her former good character and the fact she has recently married, and associated references but the objectively serious factors in my mind negate any further discount. She was prepared on her own admission to offer large sums of money for the corrupt scam to be completed, and thereby corrupt a third party which is a serious matter. But for the honesty of the third party who should be commended for her integrity, and who informed the police, two false Tongan passports would likely have found their ways into the hands of underserving people.

[13] In her case, I have considered the question of suspension also. Like Mr Tu'itupou, she has pleaded guilty, shown remorse, and I consider is worthy or rehabilitation, but the period of suspension must be tempered also by the seriousness of her actions. The final nine months of her sentence is suspended on the condition also that she commits no further offences punishable by imprisonment for two years.

[14] I also note that, in both cases, the prisoners pleaded guilty to attempts only. Where, however, persons are charged with completed offences, and their actions lead to false passports being issued, passport offending by persons in trust and those complicit with them may well in appropriate cases attract higher penalties than those imposed here.

[15] I, accordingly, sentence Mr Tu'itupou to three years and three months imprisonment and I suspend the final 9 months imprisonment on condition that he commit no further offences punishable by imprisonment for a period of two years.

[16] I sentence Ms Laukau to two years imprisonment and I suspend the final 9 months imprisonment on condition that she commits no further offences punishable by imprisonment for a period of two years.

DATED: 17 MARCH 2014
J U D G E