R v Ika [2020] TOSC 89; CR 187 of 2020 (30 October 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 187 of 2020
REX -v- ‘ILONA MARIA IKA

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mr T. ‘Aho for the Prosecution Defendant in person
Date of sentence:	30 October 2020

1. On 30 September 2019, the Defendant pleaded guilty to one count of theft contrary to ss 143 and 145(b) of the Criminal Offences Act.
2. The Defendant is 27 years of age. She was employed by the ANZ bank in 2012 until she was dismissed in April 2020. At that time, she was the Electronic Banking Services Sales officer. Her role was to provide support to the EBS sales team by coordinating and managing the delivery of electronic packages to the business market and, in particular, high net worth customers.
3. In or about March 2020, a bank customer based in Hawaii contacted the bank about a number of unauthorised withdrawals from his internet banking account between December 2019 and February 2020.
4. The bank investigation discovered that the Defendant had, without authorisation, created an emergency ATM card linked to the customer's account. The unauthorised withdrawals were traced to the ATMs from which they were made. Security video footage from those ATMs identified the Defendant making the withdrawals. The Defendant withdrew $2,000 on nine separate occasions over the period making a total of $18,000.
5. When she was confronted by the bank, the Defendant denied responsibility for the offending. She said that the customer had physically come to the bank and sought her help to withdraw the money for him. That was, of course, impossible because the customer lived in Hawaii, and did not visit Tonga, during the period in question.
6. When interviewed by police, the Defendant again denied responsibility for the offending.
7. By 28 September 2020, two days before she was arraigned, the Defendant’s family had fully repaid the $18,000 stolen.
8. The maximum penalty for theft is 7 years imprisonment.
9. The Crown submits the following circumstances of aggravation:
   • 9.1 the Defendant was in a position of trust which she abused;
   • 9.2 the offending was calculated and deliberate in its execution; and
   • 9.3 the Defendants actions were highly deceptive and dishonest.
10. Mitigating features include her early guilty plea, full reparation, remorse and lack of previous convictions.
11. I have considered the comparable sentences presented by the Crown in Mo’unga (AC 15/1997), ‘Anaseini Kolomalu (CR 115/11), Mo’ui Loketi & ors (CR 6, 8, 9 & 10 / 13), ‘Anasitasisi To’a (CR 7/13), Salote Latu (CR 5/13) and Manuele (CR 141/15). They involved amounts ranging from approximately $12,000 to $41,000. Some involved full restitution. Sentences ranged from 18 months to 2 years and 8 months imprisonment, with partial or full suspension on conditions including community service. In Stephanie Cocker (CR 3/13), the Defendant converted just under $100,000. After deductions for mitigation, Cato J imposed a sentence of three years imprisonment with the final year suspended on conditions.
12. The Crown submits that:
    • 12.1 an appropriate starting point in this matter is two years and three months imprisonment;
    • 12.2 that should be reduced by nine months for the Defendant’s early guilty plea;
    • 12.3 a further six months should be deducted for the full restitution;
    • 12.4 the resulting sentence of 12 months imprisonment should be fully suspended on conditions including 90 hours community service.
13. From the presentence report, the Defendant was born in America but was customarily adopted by her paternal grandparents when she was a few months old. She had a good upbringing and completed her school education to Form 7. She is partway through a tertiary course in information systems and public administration. She is married with no children. At the time of the offending, her position at the bank earned her $15,000 per annum. She was then the primary financial provider for her family.
14. When asked about the offending, the Defendant said she did not want to give any further information about it but apologised for what happened. She is said to deeply regret her actions and the shame it has brought upon her and her family.
15. The probation officer described the Defendant as having admitted to her offending and having cooperated with the prosecutors and investigators. That is at odds with the summary of facts which shows that until her arraignment, not only did the Defendant not cooperate with authorities or admit her guilt, she tried to further deceive the bank in her explanations about how the withdrawals had occurred.
16. The Defendant is now involved in a private restaurant with her family. She and her husband have requested leniency in that any sentence not prohibit the Defendant from travelling overseas in the future.
17. Somewhat quizzically, the probation officer's opinion is that "a non-custodial sentence is inevitable" and recommended that the court consider "a bond to good behaviour sentence".
18. In my view, whilst the amount in question is not at the higher end of the range of comparable sentences, it is still a substantial sum. That factor and the nature and duration of the offending makes this a serious crime. Not only did the Defendant breach her obligation of trust towards the bank, she sought to take advantage of a customer of the bank who lives overseas. The manner in which the offending was executed also shows a significant degree of calculation, planning and connivance. The nine occasions on which withdrawals were made over several months shows a lack of remorse and a willingness to have continued offending unless and until she was caught. Even then, she did not confess her guilt but continued her dishonesty by her demonstrably untrue explanation for what had occurred.
19. In light of the comparable sentences referred to above and the seriousness of the offending, the probation officer's recommendation of a non-custodial sentence cannot be accepted.
20. Instead, I consider the appropriate starting point to be two years imprisonment.
21. On account of the Defendant’s guilty plea upon arraignment, I reduce that starting point by six months.
22. On account of the full restitution having been made (albeit by the Defendant’s family) I reduce the sentence by a further six months leaving a net sentence of 12 months imprisonment.
23. The total discount for mitigation then is 50% of the starting point. As can be seen from the decision of the Court of Appeal in Tavake Kaufusi & anor (AC 14&15/15), that may well be viewed as generous. That appeal was from the matter of Mo’ui Loketi and others referred to above where the amount embezzled was just over $41,000, full restitution was made and the Defendant entered a belated guilty plea after putting the Crown to proof. Cato J set a starting point of three years and nine months imprisonment. He then reduced that by 13 months (or 33%) on account of the belated guilty plea, full restitution and previous good record. He also suspended nine months of the resulting sentence of two years and eight months imprisonment. That sentence was appealed as being manifestly excessive. In dismissing the appeal, the Court of Appeal held:

"[26] It is important that there is a meaningful allowance when compensation of losses is made. It demonstrates a desire to atone and of course lessens the impact of the crime on the victim. If adequate allowance is not routinely made, there is also the concern that the incentive to make reparation will be reduced.
[27] In our view a discount of little over 25% for good character and for making reparation is sufficient though the Judge could not have been criticised if he had allowed more.”

24. On the question of suspension, I agree that a number of the considerations set forth in the Court of Appeal’s 1998 decision in Mo’unga favour some suspension of the sentence. The Defendant is still relatively young, is a first offender and appears to show good prospects for rehabilitation. However, I do not agree that full suspension is appropriate in this case for to do so would not provide an effective deterrent to others in similar positions of trust who may be tempted to breach that trust and steal from those to whom that trust is owed.
25. Accordingly, the final six months of the 12 months sentence will be suspended for a period of 12 months from the date of her release from prison on conditions that the Defendant not commit any offence punishable by imprisonment, be placed on probation, and report to the probation office within 48 hours of the release and as and when required by her probation officer during the period of suspension.
    

NUKU’ALOFA	M. H. Whitten QC
30 October 2020	LORD CHIEF JUSTICE