R v To'aho [2021] TOSC 107; CR 24 of 2021 (29 June 2021)

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

CR 24 of 2021

REX
-v-
FILIMONE TO’AHO

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr T. ‘Aho for the Prosecution
Mr S. Tu’utafaiva for the Defendant
Date: 29 June 2021

The charges

1. On 16 March 2021, the Defendant pleaded not guilty to one count of obtaining money by false pretences and one count of theft.
2. On 21 May 2021, the day of his trial, the Defendant changed his plea to guilty on the theft count. The Crown determined to call no evidence in relation to the count of obtaining money by false pretences.

The offending

3. In October 2017, the Defendant requested a loan from the complainant's finance business of the United States equivalent of TOP$17,767.81 to purchase 20 motor vehicles from Japan. As security, the Defendant pledged ownership of the vehicles in favour of the complainant. The Defendant agreed to sell the vehicles, save for two which were to be retained by the complainant, repay the loan from the proceeds of the sales and retain the balance. The complainant agreed. Accordingly, on 3 November 2017, the complainant arranged for a telegraphic transfer of the funds to SBT Japan.
4. By March 2018, the complainant had not received the vehicles. The Defendant told the complainant that the ship had been delayed. However, later that same month, an associate of the Defendant informed the complainant that the vehicles in question had arrived from Japan but that the Defendant had sold them to other car dealerships. A representative of the shipping company confirmed that the Defendant had changed the ownership of the 20 vehicles from the complainant to two other car dealerships. When confronted, the Defendant purported to explain that he had changed the ownership of the vehicles to the other dealerships because the complainant had not advanced all the money he requested. The complainant refuted that explanation and told the Defendant that if she could not receive her vehicles, she wanted her money back.
5. In April 2018, the Defendant approached the complainant and told her that he had eight vehicles under the care of the same shipping company that he would sign over to the complainant. A contract to that effect was signed. However, when the complainant went to collect the vehicles, she found that the Defendant had already sold them to another car selling business.
6. After various unsuccessful attempts to recover her money, the complainant lodged a complaint with the police. The complainant also initiated civil proceedings for recovery of the monies and, on 26 November 2019, in CV 40 of 2019, she obtained judgment in default of defence for the loan amount plus interest at 10% per annum.
7. On 10 December 2020, the Defendant gave the complainant $10,000. He apologised to the complainant, told her that he had misused her money and admitted to selling off the eight cars to another car dealer. He then asked whether they could settle the matter outside of court.
8. On 19 May 2021, the Defendant repaid a further $7,000.
9. The Defendant did not co-operate with police when questioned.

Crown’s submissions

10. The Crown submits the following as aggravating features:
    • (a) the Defendant was in a position of trust which he breached;
    • (b) his actions were highly deceptive and dishonest; and
    • (c) because of his actions, the complainant has had to bear the further financial costs of proceeding CV 40/19 to recoup her losses.
11. Mitigating features include that the Defendant:
    • (a) pleaded guilty, albeit late;
    • (b) has paid back a total of $17,000;
    • (c) has therefore demonstrated remorse; and
    • (d) has no previous convictions.
12. The Crown referred to the following comparable sentences:
    • (a) Mo’unga (AC 15/1997) – the appellant and co-offender pleaded guilty to one count housebreaking and one count of theft of goods worth $11,568.96. They were sentenced to 4 years imprisonment for the housebreaking and 2 years’ imprisonment for the theft. The appellant had no fewer than 54 previous convictions for theft, housebreaking and other offences. Court of Appeal described circumstances of the offending as involving a carefully planned operation. In those circumstances, the sentences were considered to be entirely appropriate.
    • (b) Ilona Maria Ika (CR 187/20) – the Defendant, who was a 27-year-old bank teller, pleaded guilty to one count of theft by making nine separate unauthorised withdrawals from a customer's account, totaling $18,000. A starting point of two years imprisonment was set. For her early guilty plea and previous good record, starting point was reduced by six months. That was further reduced by six months for full reparation. Of the resulting 12 month sentence, the final six months were suspended on conditions.
    • (c) ‘Anaseini Kolomalu (CR 115/11) – The Defendant pleaded guilty to embezzlement and theft of a total of $21,051.20. None of the funds were repaid. The accused was 28 years old. She fully co-operated with the police, pleaded guilty early and was a first time offender. Due to the breach of trust, the systemic nature of the offending and the sum involved, the head sentence was 18 months’ imprisonment, fully suspended for a period of 2 years on conditions.
    • (d) Mo’ui Loketi & Ors (CR 6, 8, 9, 10/13) – the Defendant was convicted of embezzlement of $41,301.03 and forgery. He was sentenced to 2 years and 8 months’ imprisonment. The final 9 months were suspended for 2 years on conditions. The sentence was upheld on appeal.
    • (e) ‘Anasitasisi To’a (CR 7/13) – the Defendant, another bank teller, pleaded guilty to embezzlement, falsifications of accounts and theft of a total of $25,208.03 through a considerable number of conversions over a period of two years. He was sentenced to 2 years’ imprisonment with the last 9 months suspended for 12 months on conditions.
    • (f) Salote Latu (CR 5/13) – the Defendant, yet another bank teller, pleaded guilty to embezzlement, falsifications of accounts and theft totalling $15,141.69. Cato J sentenced her to 2 years’ imprisonment with the final year suspended for 12 months on conditions.
    • (g) Manuele (CR 141/15) – the Defendant pleaded guilty to 6 counts of embezzlement totaling more than $12,000. A starting point was set of 18 months’ imprisonment, reduced by 9 months’ for mitigation and the remaining 9 months were fully suspended on conditions.
13. The Crown submits the following sentence formulation:
    • (a) a starting point of 2 years’ imprisonment;
    • (b) reduced by 6 months for mitigation;
    • (c) further reduced by 6 months for restitution;
    • (d) the final 12 months be fully suspended on conditions including 60 hours community service; and
    • (e) the Defendant to pay compensation of the remaining balance of the debt of $2,924.56 within one week, failing which, pursuant to s 25(3) of the Criminal Offences Act, the Defendant be required to serve three months’ imprisonment.

Defence submissions

14. Mr Tu’utafaiva submitted, in summary, that:
    • (a) the Crown’s starting point is appropriate and is not disputed;
    • (b) despite not being young, the Defendant has no previous convictions and is therefore ‘entitled’ to a fully suspended sentence, on conditions including community service;
    • (c) a reference by a church minister suggests that the Defendant has changed and is more involved with church activities, indicating that any opportunity offered by the Court will be used wisely by the Defendant to rehabilitate himself;
    • (d) the Defendant has paid back a substantial part of the money; and
    • (e) the remaining balance of $2,924.56, which is not disputed by the Defendant, is already the subject of a civil court order and "should be left that way".

Presentence report

15. The Defendant is 40 years of age. He is the second eldest of five children. He was raised in a good family. Both his parents were primary school teachers. He was well educated and received a diploma in teaching.
16. The Defendant is married but has no children. In 2007, he resigned from teaching and worked at Digicel for a few years before establishing Super Cheap Tonga car dealership in 2013.
17. The Defendant’s mother describes her son as ‘a good boy when growing up’ but blames his ex-wife's lifestyle for how the Defendant has ‘turned out’. His siblings have helped pay his debts to other customers and his loan to a bank. His parents ask for the Court’s mercy.
18. The Defendant reported to the probation officer that he is ready to turn his life around and wishes to make his parents happy again. On that basis, the officer recommends that any sentence imposed be fully suspended on conditions.

Starting point

19. Section 145(b) of the Act provides a maximum penalty for theft over $10,000 of 7 years’ imprisonment.
20. The Court of Appeal has held that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary: Mo’unga [1998] Tonga LR 154 at 156. In that case, the circumstances which warranted imprisonment were described as " no minor impulse of theft and breaking in”, rather “a major, carefully planned operation” where the offenders “had armed themselves with the necessary equipment and vehicles” and “selected premises where a quantity of goods would be present”, in fact, “such a large quantity of cigarettes that can only be regarded as a commercial operation for profit."
21. In the recent decision of Selupe [2021] TOSC 47, the Defendant pleaded guilty at the conclusion of the Crown case at her trial to multiple counts of obtaining a total of over $50,000 by false pretences, which is treated by the Act as analogous to theft. Through her online car business, the Defendant duped a number of customers out of their money. Imprisonment was considered appropriate in that case by reason of:

“[20] ... the premeditated and systematic nature of the Defendant’s operation in taking advantage of the four complainants over a period of 14 months, her breaches of trust, her repeated dishonesty in lying to the complainants after they had handed over their money, the overall quantum of the moneys obtained and the failure, despite repeated promises, to make any restitution ....”

22. Notwithstanding the delimiting instruction in Mo’unga, cases such as the instant, which involve significant amounts of money and serious breaches of trust require denunciation or condemnation and deterrence. Indeed, ordinarily, it is appropriate for an offence of dishonesty and breach of trust to attract a custodial sentence: Kolomalu [2012] TOSC 25.^[1]
23. As in Ika, referred to in the Crown’s submission, the Defendant’s effective strategy was akin to the idiomation: “robbing Peter to pay Paul” and demonstrated a certain degree of calculation, planning and connivance.
24. In Selupe, ibid, for an amount slightly higher than the amount here, I set a starting point of 24 months and for an amount slightly less, a starting point of 20 months.
25. Having regard to the seriousness of the offending, as described above, the amount involved, the deception and breach of trust employed in obtaining the funds, and the comparable sentences and principles referred to above, I set a starting point of 22 months’ imprisonment.

Mitigation

26. On account of the Defendant’s good previous record and late guilty plea, I reduce that starting point by 5 months.
27. It is important that there is a meaningful allowance for the repayment of $17,000 made by the Defendant. ‘It demonstrates his desire to atone and 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’: Kaufusi v Rex [2014] TOCA 17 at [26].^[2]
28. For the Defendant’s restitution to date of $17,000, representing the majority of the funds stolen, I reduce the starting point by another 5 months.
29. The resulting sentence is therefore 12 months’ imprisonment.

Suspension

30. On the issue of suspension, I wish, at the outset, to eschew the notion of a Defendant being ‘entitled’ to full suspension if he or she can establish the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157. In a given case, there may well be others, such as “the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her. Ultimately, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason, rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate”: Vake [2012] TOCA 7.^[3] These are all simply matters to be weighed by the Court, in exercise of its broad discretion, in formulating an appropriate sentence for each case.
31. Here, the Defendant is not young, he did not co-operate with the authorities and there is no identified diminution in culpability. Those factors cast doubt on his propensity for rehabilitation provided by a suspended sentence. Against that, he has a previous good record, he eventually pleaded guilty to the theft count and he has made substantial restitution. The observations, referred to above, by the probation officer and the church minister of the Defendant’s changed behaviour are also promising.
32. I agree with the Crown's submission that the instant offending may be distinguished from that in Ika where only the last 6 months of the 12 month sentence was suspended. The offending in Ika was far more calculated, protracted and systematic. It involved multiple instances of one of the most egregious breaches of trust: that of a bank employee, effectively pilfering the accounts of a customer of the bank whom the offender served. Here, and by contrast, the Defendant’s offending was relatively unsophisticated and short-lived.
33. In those circumstances, on balance, I consider it appropriate to fully suspend the resulting sentence, albeit with additional conditions as set out below. They will include repayment of the undisputed balance of the debt to the complainant. The Defendant has shown an ability to pay, or procure payment, of the majority of the moneys owed. I see no good reason why the complainant should be left to have to try to enforce the civil judgment in circumstances where the Defendant has pleaded guilty to a criminal offence and seeks, through his demonstrated remorse, to remain out of prison.

Result

34. The Defendant is convicted of theft and is sentenced to 12 months’ imprisonment.
35. The sentence is to be fully suspended for a period of 2 years from this day, on the following conditions, namely, that during the period of suspension, the Defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within the next 48 hours;
    • (d) perform 60 hours of community service as directed by his probation officer; and
    • (e) pay the complainant (by payment into court) the remaining balance of $2,924.56 by 30 July 2021.
36. Failure to comply with any of the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the his sentence of imporisonment.

NUKU’ALOFA	M. H. Whitten QC
29 June 2021	LORD CHIEF JUSTICE

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^[1] Citing Filila Havilii v Rex (AC 2/201).
^[2] Applied in Ika, ibid at [23].
^[3] Referring to Misinale [1999] TOCA 12; Motulalo [2000] Tonga LR 311.