R v Vailea [2021] TOSC 117; CR 293 of 2020 (29 June 2021)

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

CR 293 of 2020

BETWEEN: R E X
-Prosecution
AND: LANCELLOT ‘AMANAKI TAE VAILEA

a.k.a ‘AMANAKI TAKAI
-Accused

SENTENCING REMARKS

BEFORE : HON ACTING JUSTICE TUPOU

Counsel : Ms ‘Aunofo F ‘Aholelei for the Crown Prosecution
No Appearance of the Accused

Date of Verdict : 26 November 2020

Date of Submission : Crown Submission on 15 December 2020

by Counsel Sesilia ‘Eliesa

Date of Sentencing : 29 June 2021

1. The Accused is charged with the following offences:
   • (i) Serious Housebreaking contrary to section 17.3(1) (b) and (5) of the Criminal Offences Act and
   • (ii) Theft, contrary to section 143 (a) and 145 (b) of the Criminal Offence Act.
     

FACTS

2. The Complainant is Vaimoana Soakimi, a 32-year-old female, residing in a two story house at Tu’atakilangi.
   
3. The Accused is a 32 years old male from Fo’ui.
   
4. On or about 12 pm on 11 January 2020, the Complainant left her house and went to work.
   
5. On or about 9 pm the Accused and an accomplice hitched a ride near a gas station at Pahu. They asked the driver to take them to their houses at Tu’atakilangi so they can get something from their house.
   
6. On their way, the Accused gave the driver directions to the Complainants house. They parked beside the road and then Accused went into the house.
   
7. After a while, the Accused came back from the house and they went and dropped the Accused and the accomplice at the same place they were picked up.
   
8. On or about 10.05 pm, the Complainant returned home and found the door to the kitchen and the washing room open.
   
9. The Complainant climbed up the stairs and a male person from the neighbour called and asked her whether there was anything missing because he noticed a light from a torch being shone around downstairs and that there was a blue shuttle license number L 17384 parked in front of the gate.
   
10. The Complainant lodged a complainant with the police
11. The stolen items were as follows;

1 HP Laptop - $ 500.00

1 Fala Fihu fute 30 – 4,000.00

1 Kie Fatu 4(40) - $ 2,000.00

1 Kie Fatu 4 (30) - $ 1,800.00

1 Kie Tonga fute 20 (not yet finished) $ 1,000.00

2 Kie Tonga 6x4 - $ 8,000.00 ($400 each)

2 Fala hinehina - $ 5,000.00 ($2,500 each)

Total - $ 15,100.00

12. The Accused was arraigned before Lord Chief Justice Whitten on 16 November 2020 on one count of serious housebreaking and one count of theft.
    
13. The accused pleaded guilty to both counts and the case was listed for sentencing before me on 18 December 2020.
    
14. Submissions on sentence and a pre-sentence report are to be filed by 15 December 2020
15. The Accused is to report to the probation office within 48 hours to arrange an interview for the preparation of his pre-sentence report.
    
16. On 18 December 2020, the Accuse appeared before me and Counsel Mr Fifita for the prosecution.
    
17. Submissions on sentence was filed on 15 December 2020 by the Crown but the Accused had not reported to the probation office as directed and the probation office could not file a pre-sentence report.
    
18. I made an order that the Accused is to report to the Probation Office today (18 December 2020) and a Pre-Sentence Report to be filed by 25 January 2021.
    
19. On 1 February 2021, the Accused did not appear for sentencing and a Bench warrant was issued for his arrest.
    
20. On 18 May 2021, the Accused was brought under custody by the Police and the court ordered that the Accused be taken to the Probation offices today to arrange an interview and that a presentence report is to be filed by 22 June 2021. The case was adjourned to 29 June 2021 for sentencing and the Bench Warrant was vacated and bail was extended to Friday 29 June 2021 on the same conditions; -
    • - Not to commit any offence punishable by imprisonment,
    • - Not to leave Tongatapu without as order by the Court,
    • - Not to contact any Crown witness in this case.
      
21. On 2 June 2021, the Chief Probation Officer, Ms Kelela Fetu’u Tu’itupou reported that the pre-sentence report could not be completed as ordered on 18 May 2021 because the Accused failed to attend the office as directed by the Probation Office. The Accused had attended the probation office with a police officer as ordered in 18 May 2021 and was directed to attend the office on 21 May 2021 but failed to do so or contact the probation office for his interview.
    
22. The Chief Probation Officer therefore recommended to proceed with sentencing without the presentence report.
    
23. The Accused has failed 4 times to attend to the probation office for his presentence interview. I have decided therefore to proceed with sentencing without a presentence report from the probation office.
    

CROWN SENTENCING SUBMISSION

24. The Crown’s submissions reveal that the Accused had 4 previous convicti0ons for housebreaking and theft in the Magistrate Court –
    1. CRS 204/2019: Simple housebreaking – he was sentenced to 1 month imprisonment to be served concurrently with CRS 205/2019.
    2. CRS 205/2019: Theft – the Accused stole Tongan handicrafts valued at $2,600. He was sentenced in 26 April 2019 to 6 months’ imprisonment, fully suspended for 2 years.
    3. CRS 130/2020: Housebreaking – the Accused was sentenced on 2 March 2020 to 2 months’ imprisonment.
    4. CRS 131/2020: Theft – the Accused was sentenced to 2 months’ imprisonment.
       

AGGRAVATING AND MITIGATING FEATURES submitted by Crown:

25. AGGRAVATING FEATURES

(i) House breaking is a serious offence as it violates people’s right to privacy in their homes;

(ii) The stolen items included 1 laptop and handicrafts valued at $15,100. None of the items were recovered;

(iii) The Accused is a repeated offender
(iv) The Accused has previous convictions for housebreaking and theft

MITIGATING FEATURES

(i) The Accused early guilty plea
(ii) The Accused cooperated with the police

26. The Crown also submitted 3 cases as comparable to this case and will be taken into consideration with the sentence to be imposed.
    
    27. The offence was premeditated and planned by the Accused and his accomplice. They hiked a vehicle in Pahu and the Accused gave directions to the home of the complainant at Tu’atakilangi.
        
    28. This was at night about 9 pm on 11 January 2020 when the Accused obviously knew that the complainant would be away at work.
        
    29. The Accused broke into the home of the complainant and stole a laptop and Tongan mats and artifacts to the total value of $15,100. None of the stolen goods was recovered.
        
    30. The Tongan mats and artifacts have personal value to the complainant which have been taken from her forever.
        
    31. It would appear that the Accused is a seasoned offender of the crime of housebreaking and theft as he was found guilty of these offences on 26 April 2019 and 2 March 2020 and served a term of imprisonment of 2 months for the 2020 offence and sentenced to 6 months’ imprisonment for the 2019 which was fully suspended for 2 years.
        
    32. The offence in this case was committed on 11 January 2020 which is within the 2 years’ suspension period.
        
    33. If appears that the Magistrate did not take the 2019 sentence of 6 months’ imprisonment that was fully suspended into consideration.
        
    34. Inquiry was made to the Magistrates Court for a record of the sentences remark made in the 2020 cases but to no avail. The only information available for CRS 130/2020 and CRS 131/2020 is the penalty of imprisonment for 2 months on 6 March 2020.
        
    35. From this it can safely be assumed that in the 2020 case against the accused, the Magistrate did not take into account CRS 205/2019 where the sentences of 6 months imprisonment made on 26 April 2019 was fully suspended for 2 years which end on 26 April 2021.
        
    36. The offences in this case by the accused to which he has pleaded guilty was committed on 11 January 2021. That is within the 2year period that the suspension was effective. I must therefore include this in the sentence of the accused in this case.
        
    37. The 3 cases referred to by the Crown as comparable to assist with the sentences in this case are similar and helpful.
        • (i) In Rex v Penisiliti Malafu (Unreported, Supreme Court CR 133/2016, 29 March 2018, Cato J) the Tongan mats stolen from the complainant’s house was valued at more than $15,000. These was no mitigating factor and the accused pleaded not guilty. A starting point of 3 years 6 months’ imprisonment with the final six month suspended. On the Count of Theft, the accused was sentenced to 2 years’ imprisonment to be served concurrently with court.
        • (ii) In Rex v Kelikupa (Unreported, Supreme Court, CR 133/2019, 5 September 2019, 4 October 2019, Cato J) the accused stole items valued at $14,900 from his neighbor’s property. The Accused pleaded not guilty. The Starting point of 3 years and 9 months was imposed. On the Court of serious housebreaking the accused was sentenced to 3 years and 3 months with the final 2 months suspended. On the theft charge, the accused was sentenced to 2 years and 6 months imprisonment ot be served concurrently with Count 1.
        • (iii) In Rex v ‘Amini Liku (Unreported, Supreme Court CR 47 May 2019, Cato J). The Accused pleaded guilty to one Count of serious housebreaking and one count of theft. The stolen items were valued at $13,900 consisting of electronic equipments. For the serious housebreaking the accused who was 18 years old, was sentenced to 2 years and 3 months imprisonment and for the theft charge he was sentenced to 2 years imprisonment to be served concurrently with Count 1.
          
    38. The Crown submits that with reference to the relevant authorities and the aggravating factors, and appropriate starting point is 3 years’ imprisonment. In reference to the accused’s early guilty plea, the Crown submits that accused is allowed 6 months mitigation.
        
    39. In relation to the theft charge, the Crown submits the accused is sentenced to 2 years imprisonment to be served concurrently with Count 1.
        
    40. In addition, the Crown submits that in the light of the principles set out in Mo’unga v Rex [1998] Tonga LR 154, the accused is a candidate for a suspended sentence.
        
41. As stated above (para 23) the accused failed 4 times to obey Order to attend the Probation office to answer questions that would enable the probation officer to make a presentence report. This may be taken as an additional aggravating factor against the accused.
    
42. On the other hand, depending on the information that the probation officer may gather from meeting and interviewing the accused, some mitigating factors could have been revealed.
    

CONCLUSION

43. Considering everything that the evidence reveal in this case, and the submissions from the Crown, I accept that the starting point for the head sentence of the serious housebreaking offence is 3 years imprisonment. For the early guilty plea 6 months will be deducted in mitigation.
    
44. In relation to Count 2, the theft charge, the accused is sentenced to 2 years imprisonment to be served concurrently with Count 1.
    
45. Taking into account the principles set out in Mo’unga v Rex the final 12 months of the sentence is suspended on conditions.
    

SENTENCE

46. On the Count of Serious Housebreaking, the defendant is sentenced to 3 years imprisonment and deduct 6 months for his early guilty plea.
    
47. Of the 2 years and 6 months remaining the final 12 months are suspended for 2 years on the following conditions; -
    • (i) He is placed on probation to live where directed for the period of the suspension
    • (ii) He is not to commit any offence punishable by imprisonment for the period of his suspension.
48. The Accused is warned that a failure to abide by the conditions may mean that he is re called to prison to serve the balance of his term of imprisonment.
    
49. All days spend in remand in custody shall be deducted from the term of imprisonment
    
50. On Count 2, Theft, the defendant is sentenced to 2 years imprisonment to be served concurrently with count 1.
    
51. For the breach of the term of suspension of the 6 months penalty in the Magistrate Court case CRS 205/2019 the 6 months sentence will be added to the sentence in this case and subject to the same conditions.
    

Tupou AJ
NUKU’ALOFA: 29 June 2021 J U D G E