Rex v Filikitonga [2020] TOSC 36; CR 48 of 2020 (10 June 2020)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 48 of 2020

REX

-V-

‘ALEKI FILIKITONGA

BEFORE HON. JUSTICE NIU

Counsel : Mr. ‘I. Finau for the Crown.
Mr. V. Mo’ale for the accused.

Probation Report: by Tito Kivalu 22 April 2020.

Submissions : by Mr. Finau 19 May 2020.

By Mr. Mo’ale 19 May 2020.

Sentencing : 10 June 2020.

SENTENCING

[1] ‘Aleki Filikitonga, you have pleaded guilty to theft of $28,000 from your former employer, Tonga Development Bank, between the 15^th and 29^th January 2019 whilst you were acting manager of the branch of the bank at ‘Ohonua, ‘Eua.

[2] According to the summary of facts given by the prosecution, you were made acting manager whilst the manager was away for some 2 weeks, and it was whilst you were acting as such you took this money for your purpose without authority to do so. And in a cash count conducted by officers from the head office, your theft was discovered.

[3] The sum taken was a substantial sum and other than a sum of $10,000 which you said was to repay a loan you had taken from a friend, the rest of the money was spent on personal matters and also on some Church activities.

[4] What is of concern is that you abused the trust which the bank had placed on you. That makes your offence more serious.

The Crown submissions

[5] In his submissions for the Crown, Mr. Finau points out that the law stipulates that the penalty for theft, if the value of the thing stolen exceeds $10,000, is imprisonment for any period not exceeding 7 years. He refers to other cases similar to yours and to the penalties imposed on the offenders in those cases.

[6] In Fonua (CR97/2016), the accused was the wages clerk and she drew up wage sheets showing fictitious employees, as well as actual employees, drew the money for the wages and paid the actual employees and pocketed the wages of the fictitious employees. She drew a total of $21,299 that way for herself. She pleaded not guilty but was convicted after a full trial. She continued to maintain her innocence. She was allowed 6 months credit for her previous good character, and was sentenced to 2 years imprisonment with the last 6 months being suspended.

[7] In Tau’alupe (AC8/2017) the accused was a bank officer at Ha’apai and he was given sums of money by the customers in the outer islands to deposit into their accounts at the bank at Pangai. The accused did not deposit the monies and used them himself for his own purpose. In total he had so used $20,025. He confessed and pleaded guilty. He had no previous conviction. He was 20 years old. He was allowed deduction of 1½ years for his remorse, guilty plea, cooperation with the police and for his previous good character, and on top of all that, his whole 1 year and 6 months imprisonment sentence was suspended for 2 years on condition that he served 60 hours of community service.

[8] Mr. Finau correctly says that your case is closer to Tau’alupe’s case than to Fonua’s case meaning that the sentence in your case should properly be comparable to the sentence in that case.

Accused submissions

[9] Mr. Mo’ale your counsel, has referred to statements made by the Court of Appeal in the Tau’alupe Case “that if at all possible, young first time offenders with good prospects should not be sent to prison”, and that “it is well established that the sentencing of young offenders raises special considerations, namely

(a) an offenders youth impinge on an assessment of their culpability;

(b) prison for any period is known to carry an enhanced risk of trauma for young people, and

(c) young people have a greater capacity for rehabilitation.”

[10] He also referred to two cases – Launga and Patelesio in [2008] Tonga LR at 55 and 63 respectively, where Andrew j suspended both the imprisonment sentences of 12 months and 9 months of the two accused because they were both young first offenders and imposed community service orders of 100 hours and 80 hours respectively for them.

[11] He submitted that in accordance with those authorities the imprisonment sentence to be imposed on you be suspended in full as recommended by the Probation Officer.

Probation Report

[12] Mr. Kivalu, the Probation Officer, has provided a thorough report on your circumstances. He says you are 26 years old and you have only got married in 2018 and that you do not as yet have any children. You are now farming for your livelihood, while your wife is still working as a nurse at the hospital at ‘Eua.

[13] You do not have a home of your own as yet and you live with your wife at your wife’s parents’ home. You and your wife also run a food canteen for the schools in ‘Eua, in addition to your own farming activities, which include kava plants as well. You and your wife make about a $1,000 in each fortnight with which you bear your financial commitments and subsistence.

[14] The Probation Officer says that he has confirmed with the bank Manager at ‘Eua that you have already paid back all of the $28,000 which you had taken from it, and I have to say that that is a remarkable achievement. He does not say how you have done that but you must have attained a position of responsibility and trust, despite the serious offence which you have committed, to be able to raise and pay such a large sum in your present circumstances.

[15] That is demonstrated by the high regard which both the Town Officer of ‘Ohonua and the secretary of the Free Church of Tonga have for you, as they have stated in their letters of support attached to the probation report. Your wife’s letter which is also attached confirms their views of you.

[16] The Probation Officer recommends that your sentence be fully suspended on condition that you complete 80 hours community service, as well as other normal condition of such suspension.

Consideration

[17] I have to consider the seriousness of the offence which you have committed, and of the fact that you were in a position of trust when committed it, and despite your repentance, your guilty plea and repayment of the money, your crime still deserves a sentence befitting the seriousness of the offence. It deserves imprisonment and other judges and Courts have had no choice in the cases referred to but to impose an imprisonment sentence. And so must I.

[18] I consider that an imprisonment sentence of 3 years is appropriate in view of the seriousness of your offence. But that in view of

(a) your having no previous conviction,

(b) your cooperation with the bank and owning up to your offence,

(c) your cooperation with the police,

(d) your guilty plea, and saving costs to the bank who would otherwise attend and give evidence at a not guilty trial,

(e) your remorse and apology shown to the bank, and

(f) your full repayment of the whole of the money which you had taken, and

(g) your responsible attitude and regard to your community and your church and family,

I consider that you deserve to have 1½ years deducted so that your imprisonment sentence is only 1 year 6 months.

[19] As to suspension of that sentence, I do not see any reason not to suspend the whole of your sentence as was done in the case of Tau’alupe. Even though the sum taken by the accused in that case was only $20,025, whereas you took $28,000 instead, you have repaid all that $28,000, whereas Tau’alupe did not repay any part of the $20,025. But more importantly you are relatively as young as Tau’alupe was and you have the same capacity for rehabilitation as well as the other criteria for suspension of the sentence of imprisonment. I therefore consider that the whole of your imprisonment sentence be suspended for a period of 2 years.

[20] As to community service of 60 hours as suggested by the Probation Officer, I consider that whereas that was appropriate in the Tau’alupe Case because the bank still suffered the loss of the $20,025, it would be inappropriate in your case because you have fully repaid the whole of the $28,000 to the bank. I consider that your case should not be the same as his case. I should recognise the fact of your repayment and to reflect that in your sentence. I therefore would not impose a community service on you.

Sentence

[21] Accordingly, I sentence you to 1 year 6 months imprisonment but that that whole sentence is suspended for 2 years from today upon the condition that you do not commit any offence which is punishable by imprisonment within those 2 years.

[22] I should add that you should be aware that if you commit any offence which is punishable by imprisonment within the said 2 years, you will be ordered to serve the suspended sentence in full, as well as any sentence you would be given for the subsequent offence, unless there are special circumstances which may warrant an extension of the period of extension for a period not exceeding one year. So that it is up to you. If you behave and not commit any such offence for the said 2 years your imprisonment sentence will no longer be required to be served. If you do not, you will have to serve it, unless it is otherwise further suspended.

Niu J

NUKU’ALOFA: 10 June 2020. J U D G E