R v Lavulavu [2021] TOSC 109; CR 173 of 2018 (2 July 2021)

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

CR 173 & 174 2018

REX

-v-

‘Akosita LAVULAVU

‘Etuate LAVULVAU

SENTENCING REMARKS

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr J. Lutui, DPP and Mr T. ‘Aho for the Prosecution
Mr W. C. Edwards for Mrs. Lavulavu.
Mr. W. Edwards for Mr. Lavulavu.
Date of sentence: 2^nd July 2021

The charges

1. Both defendants were convicted on the three count indictment they jointly faced.
2. Each an allegation of obtaining money by false pretences contrary to section 164 Criminal Offences Act.
3. Count 1 ‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29 May 2014, at Nuku’alofa, you did obtain $146,400 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 255 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2013 but you knew that was false, and the Ministry of Education relied on that false representation and paid the said money.
4. Count 2 ‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 18 November 2014, at Nuku’alofa, you did obtain $249,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 416 students at ‘Unuaki ‘o Tonga Royal Institute for semester 2 of 2014 but you knew that was false, and the Ministry of Education relied on that false representation and paid the said money.
5. Count 3 ‘Akosita Lavulavu and ‘Etuate Lavulavu of Vava’u on or about 29^th June 2015, at Nuku’alofa, you did obtain $162,600 from the Ministry of Education and Training by false pretence, when you represented in an application for funds from the Technical Vocational Educational Training Grant that there were 271 students at ‘Unuaki ‘o Tonga Royal Institute for semester 1 of 2015 but you knew that was false, and the Ministry of Education relied on that false representation and paid the said money.

The Submissions and pre sentence reports

6. All submissions for both defendants have been fully taken into account, along with the references and pre sentence reports and all that has been said.
7. I highlight some aspects of all of that in these remarks but have not been selective when coming to my decision, instead having taken everything into account.
8. For the first defendant it is stressed that she is young, a mother of two young children and has no previous convictions.
9. The decision in R v Halafihi CR 13/18 is drawn to my attention on this latter point.
10. The submission is made that the money obtained was used for the benefit of UTRI.
11. Her career is drawn to my attention.
12. She begs the mercy of the court.
13. In her pre sentence report it is noted that there has been no attempt to repay the money; that she still maintains her innocence, that is to say she shows no remorse.
14. The report writer raises a real concern with the manner in which she has tried to present herself to the probation officer, indeed at large, in respect of her character and the references she has furnished :
15. “The report writer sought verification from the relevant authors and they responded that the content of the letter was not authored by them but rather created beforehand by the accused and was just given to them by her secretary to sign without proper consultation, therefore they are not fully aware of its content...”
16. A further referee upon his reference being checked “...denied knowledge of para 7 & 8 of the letter and said it may have been amended from the original he signed.”
17. The report writer concluded : “This is an act of dishonesty which further proves her true character...”
18. For the second defendant, the points in favour of the first defendant are stressed and repeated on his behalf where applicable.
19. Again it is repeated that the money in question was used for the benefit of UTRI and not for personal expenditure.
20. His career and positions of responsibility have been emphasised to me along with mitigating arguments when considering his bad character and conviction abroad.
21. Argument is also made that I should not by swayed by the emotive language the prosecution uses in their submissions.
22. In his pre sentence report the author notes that he still denies these offences; that is to say shows no remorse, blames the court for being biased and, albeit does not accept his guilt offers to pay all the money back in exchange for a community penalty and being spared prison.
23. The report writer noted the community views :
24. “The most common concerned raised by most of those who were interviewed is that the element of trusting the accused’s credibility is doubted because of their individual past experience in dealing with the accused. Some of them said they lose trust in the accused and his leadership because of his dishonest attitudes...”
25. “A follow-up contact made to verify some of the reference letter submitted by the accused, and was found that the letters were made under influenced by either the accused, co-accused or their employee to be signed by the designated person...”
26. The report states these offences were not out of character and that he is known to be and was during the process with probation deceitful.
27. He has relevant matters known against him.
28. He poses a risk of re-offending is the finding of the report.
29. How do I approach the sentence ?
30. Firstly, I take no account of what I described as the corrupting of the trial process by both defendants. On this occasion I also decline to take into account what the money was used for. They were not charged with theft, when they could have been. The charges they have been convicted of relate to the process of obtaining the funds, not their use.
31. That said, I utterly reject their claims that the money was used for UTRI and therefore teachers and students as totally false.
32. I take no consideration of how they have each submitted false references. I ignore the fact that Mr. Lavulavu has sought to try and influence the outcome with the lure of money.
33. Had either defendant admitted their guilt and repaid the monies, as they seemingly can afford to do, then I would have approached this sentence in a totally different way.
34. Instead Mr. Lavulavu offered what some might think sounds very much like a bribe to stay out of prison.
35. But, I do not take that into account either, when I turn to my sentence.
36. I do bear in mind that for both defendants this was a serious breach of trust, that it continued for a long period of time, some three years.
37. It was relatively sophisticated in how it was carried out as it was a highly developed plan when it came to finding contact details and furnishing them to the authorities to obtain the grants.
38. It was public money to be used for the benefit of students, that is to say in the main, the children of this Kingdom.
39. Both defendants were invited to make submissions as to the original source of the money, both refused to do that.
40. Again, I do not take that aspect of their conduct into account either.
41. The Maximum sentence is 7 years on each count.
42. The prosecution draws to my attention comparable cases and these have been exceedingly helpful in coming to a decision as to the right tariff.
43. R v Wall [2001] Tonga LR 238 (CA).
44. The defendant pleaded guilty to embezzlement of $181,008.
45. The maximum sentence for embezzlement is also 7 years.
46. He was sentenced, on appeal, to 4 years on each count concurrent.
47. R v Bloomfield [2013] Tonga LR 165.
48. Defendant convicted after trial of embezzlement of $204,033.
49. There a starting point of 5 years was imposed.
50. I therefore take count 2, the obtaining by deception of $249,600 as the head count for each defendant.
51. Because of the aggravating factors of serious breach trust, it being government money, that it was planned and carefully executed fraud over a substantial period of time, along with the fact that this offence is of a significantly higher value, I increase that to a sentence of 6 years.
52. In coming to my starting point I have taken into account all possible mitigating factors and have kept my overall sentence as low as I possibly could.
53. I thought long and hard about the submissions in relation to Mrs Lavulavu and her being a mother of young children.
54. I feel I am unable to lessen her sentence despite this. She has loving and supportive parents, grandparents to those children. It could be argued that she deliberately put her children’s wellbeing in jeopardy with her course of criminal behaviour; some might argue that was an aggravating feature to do so, I do not see it that way, but I do not lessen her sentence for that.
55. Both defendants were in this together, as I have said before and their sentences reflect this.
56. Each will serve a sentence of 6 years’ imprisonment.
57. On count 1 and 3; 4 years’ imprisonment concurrent.
58. On this occasion I decline to make any part of the sentence consecutive.
59. Mrs. Lavulavu was hitherto of good character and so I suspend the last 12 months for two years on the condition that she comply with the probation officer, satisfactorily complete a life skills course and commit no offence punishable by imprisonment.
60. Mr. Lavulavu has recorded against him previous matters of a like nature and, as a consequence, I do not suspend any portion of his sentence.
61. That is the sentence of this court.
    

NUKU’ALOFA N. J. Cooper
2 July 2021 J U D G E