Rex v Fonua [2018] TOSC 12; CR 97 of 2016 (29 March 2018)

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

CR 97 of 2016

BETWEEN: R E X - Prosecution

AND: SELEMANA FONUA
- Defendant

BEFORE THE HON. JUSTICE CATO

Mr ‘Aho for the Prosecution
Mrs Tupou for the Defendant

S E N T E N C E

1. The prisoner, Selemana Fonua, was found guilty by me of one count of theft contrary to sections 143 and 145(a) of the Criminal Offences Act, and one count of falsification of accounts contrary to section 159(a) of the Criminal Offences Act.
   
2. She was employed asan administrative officer for Tanoa Hotels (Tonga) Ltd and was the officer in charge of the payroll of Tanoa. Tanoa at the time was responsible for refurbishing the hotel which had been purchased by Tanoa (Fiji) Ltd. She was aged about 38 at the time of the offending and, prior to entering the employ of Tanoa (Tonga), she had been an employee of a Mr Hunt who was at the material time, a director of Tanoa (Tonga). When Mr Hunt took up his position with Tanoa , he brought with him Ms Fonua, who was a trusted employee and the senior employee in charge of the payroll for Tanoa (Tonga) which had a significant staff of labourers involved in the extensive refurbishment.
   
3. My reasoning for the verdicts of guilty are set out in the decision dated the 19^th January, 2018. The trial which lasted for about two weeks was adjourned on several occasions for different reasons both during the trial and prior to sentence today. I found that on about 16 occasions between the 22^nd May 2015 and the 3^rd December 2015, Ms Fonua had dishonestly manufactured a false spreadsheet which included the names of a number of fictitious or “ghost” employees thereby inflating the wages bill for Tanoa (Tonga). By ghost employees, is meant employees who were not entitled to wages during the relevant period. This had caused Tanoa (Fiji) to pay to Tanoa (Tonga) an inflated sum for wages. This allowed Tonga to draw a cheque for an equivalent sum for wages based on the false spreadsheet. I am satisfied that the prisoner did this deliberately so as to receive the inflated amounts which I found amounted to $21,299.00, a sum which fell short of the sum she had been originally charged with.
   
4. The Probation report records that the prisoner does not accept that she was guilty of any wrongdoing. She denies this and from aspects of the cross-examination suggested that others were responsible for the fraud, although I observe she did not give any evidence herself or advance evidence to support this. She also complains that signed documentation being spreadsheets were not produced but I was satisfied that secondary evidence being spreadsheets taken from her computer which coincided with the value of cheques drawn by Tanoa for wages were secondary computer generated copies that could be safely relied upon to evidence her fraud. My reasons for this conclusion were given both in my verdict and in an earlier written decision on a no prima face case argument dated the 7th December 2017. On the evidence I heard, I was left in no doubt about the guilt of Ms Fonua and found there was no basis in the evidence to suggest anybody else was involved. Her continual protestation of innocence, in the face of the evidence I heard, I found rather unreal.
   
5. I have been helped by a number of authorities the most recent being that of the Court of Appeal in R v Tau’alupe AC 8 of 2017. There, the Crown appealed the sentence of Paulsen CJ to fully suspend a sentence of one year and six months imprisonment for embezzlement and falsification of accounts where the respondent had been working as an officer for the Tongan Development Bank at Pangai, Ha’apai, and had stolen money deposited with him by customers and intended for the Bank using it to pay off debts owed by his parents. The sum involved was $20,025.00. He had appreciated the error of his ways, had taken steps to pay the money back unsuccessfully and then had informed the bank of what he had done. He was only 20 at the time of the offending, had co-operated with the police and had entered an early guilty plea. The bank had continued to support him. He was a person described as from a good family, a person who had achieved at school and was of good standing in the Church and the community. The Court of Appeal upheld the decision of Paulsen CJ to fully suspend the sentence on conditions that included requiring the respondent to perform sixty hours community work.
   
6. Mrs Tupou submitted that this case was relevant, however accepting that the prisoner had pleaded guilty which I consider to be a very material distinction. There were other salient features about that case that are not present here. There, the prisoner had alerted the bank to his criminal offending and had attempted to pay the amount back. He was also young, and the money was spent on his parents’ debt and not to his own account. In this case, Ms Fonua’s fraud was discovered when she went on vacation for a few days, although staff had some suspicions about her actions before that. There is no evidence as to what the money was spent on but I infer that it was for her own account. She has not been co-operative with the authorities either, and she maintains her denial.
   

7. The only mitigating feature is that she is a first offender and for that can expect some discount on her sentence. I do not find reading the medical report, however, that there is any basis to reduce her sentence on medical grounds. If she requires any treatment arrangements can be made for medication to be provided to her in prison. I do not find either that providing assistance to her parents or any other person is a factor that can work in mitigation of sentence although I have taken this into account on the issue of partial suspension of a sentence of imprisonment.

8. I have read the probation report. It suggests that she had a reasonable upbringing, if somewhat truncated by her upbringing and marriage in the United States, before returning to Tonga. She seems to be well regarded in the community and no doubt her offending would seem out of character for those who have seen the good side of her character, but the present case evidences another side of her character; an ability to deceive and yet not take responsibility for that deception, and indeed, I consider there is a certain arrogance about her offending and obduracy in failing to acknowledge what she did and in suggesting at trial that others were involved. This attitude is in marked distinction to the approach of the young man in R v Tau’alupe.
   
9. I have considered the authorities mentioned both by the Crown and Mrs Tupou. In some of those cases, for example To’a CR 7/13 and the Westpac bank foreign exchange cases, Kaufusi and others AC 14 and 15 of 2015, I was the sentencing judge. I consider the starting point of two years and six months adopted by Paulsen CJ to be to be appropriate in this case also and not dissimilar from starting points in the cases that I have been involved in where similar amounts were stolen. As Mr Aho submitted in this case, the fraud involved a pattern of deceptive conduct involving about 16 false spreadsheets over several months manufactured by both a senior and trusted employee who was 38 at the time. It was conduct he rightly stated, would be of great concern to Tanoa (Fiji) and was plainly in breach of trust with her employer Tanoa (Tonga) and Mr Hunt who had employed her and placed his trust in her over a substantial period including the period when she had been employed by him before coming to Tanoa. I do not consider, however, the fact that it arose in the context of an international arrangement, is an aggravating factor which merits an uplift in the starting point, although I consider Mr Aho rightly submits that offending of this kind tends to bring Tonga into disrepute with those who invest in the Kingdom and they should be able to expect much higher standards of commercial probity. Mr Aho argued for a starting point between three and three and half years imprisonment but I consider that two and half years adequately reflects the prisoner’s offending and the amount of money the Crown was able to establish was stolen.
   
10. The sentence I pass on Ms Fonua, after taking into account her previous good character and allowing her six months for this, is two years imprisonment. I see no other mitigating features in her case. Family members who are deprived of her care are in a sense also victims of her offending, but this is merely an unfortunate incident of her offending. Likewise, with her health this may be taken care of by prison authorities and is not of such a kind or degree that merits consideration of mitigation in this case, as I have said. I also add that I have given consideration to some minor mitigation for a delay caused by the Crown adjourning the prosecution to attend to other commitments but have concluded that this was not as events turned out so material to the delay in completion of these proceedings that mitigation should be allowed for this.
    
10. The remaining aspect for consideration is whether I should suspend her sentence in whole or in part. Mr Aho did not seem to oppose a partial sentence of suspension although I queried him on what basis this could be achieved. Ms Fonua had shown none of the features normally associated with suspension and mentioned in the leading case of Mo’unga, AC 15/1997 such as a guilty plea, remorse, co-operation with authorities, or the making of restitution. She was not a youthful offender, either and it was not isolated offending. The fact of her failure to accept responsibility for what I regarded as her obvious deception, I found concerning and I am sceptical about her rehabilitation faced with her attitude. Generally acceptance of responsibility is a trigger for suspension within the spirit of Mo’unga, although as the Court of Appeal noted the conditions mentioned there are not exhaustive. The ability to suspend a sentence of imprisonment on conditions is of great assistance to a sentencing judge in Tonga because it allows a judge to tailor the sentence and may require the offender for example, in appropriate cases, to undertake remedial courses whilst living in the community when completing his or her sentence of imprisonment. Failure to perform the conditions of suspension can result in the offender being returned to prison to serve out the sentence, but in my experience now over several years, there are not many prisoners who breach the terms of their suspension and are recalled to prison. It is not, however, I note a free pass to all prisoners sentenced to imprisonment.
    

11. I note the recommendation in the probation report for community work but I am not prepared to approach the sentence in this way. Rather, I consider that Ms Fonua’s persistent offending over the period, her disregard of her employer’s trust as well as her refusal to accept responsibility, requires her to spend an appreciable part of her sentence of imprisonment in custody, as a deterrent to others minded to defraud their employers in Tonga consistently with the approach adopted by Tongan and courts elsewhere for many years involving punishment for those who choose to steal from their employers. That said, I am prepared to suspend the final 6 months of her sentence, but not without some diffidence, on the grounds that she has no previous convictions and has, she says, responsibility for the care of aged parents and another. This, at least, will be some incentive for her to stabilize her life and hopefully rehabilitate herself, in time. The final six months of her sentence of two years imprisonment is suspended on the condition that she commit no further offences punishable by imprisonment during her suspension.

11. I make no order for restitution. None was sought and I have no evidence that Ms Fonua is able to repay any part of the sum stolen, in any event.
    

12. On the falsification charge, she is sentenced to 2 years imprisonment to be served concurrently with her sentence on the theft charge.

C. B. Cato
DATED: 29 MARCH 2018 J U D G E