R v Saafi [2022] TOSC 48; CR 197 of 2021 (3 June 2022)

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

CR 197 of 2021

REX

-v-
Hotili SAAFI

SENTENCING REMARKS

BEFORE: THE HONOURABLE COOPER J
Counsel: Mrs.’A.’Aholelei for the Prosecution
The Defendant in person
Date of Newton Hearing: 29 April 2022
Date of Sentencing: 3 June 2022

1. The defendant was arraigned on 5^th April 2022 on a two count indictment, serious house breaking and theft.
2. He pleaded guilty to both counts but disputed the amount of property that was stolen.
3. There was a Newton Hearing held on 29^th April 2022. With the exception of one item that the defendant had admitted in interview, but was contested by virtue of his plea, the Crown failed to prove their case.
4. That being so, he falls to be sentenced in relation to the serious house breaking and the theft of 2 electric saws, 3 Tongan traditional mats, a “left-over case of Pure beer”, 1 sander, 1 ngatu and 2 speakers.
5. The approximate value of the stolen property was $4,860.00.
6. On three occasions between the beginning of June and the end July 2021, whilst the owner of the property in Fua’amotu was away in New Zealand, Mr. Saafi broke in and stole the above items.
7. A serious aspect of this case is the damage that he did to the property. He broke his way through the ceiling into 4 locked rooms and in doing so caused some $2,350.00 worth of repairs required to be made by the home owner.

Aggravating features

1. Premeditated offending.
2. Repeatedly broke in and stole from the same property.
3. Left property insecure and during that time other items were stolen.
4. Relatively high value electrical items were stolen for re-sale.

Mitigating features

1. Co-operation with police.
2. Guilty plea.

Maximum sentences

8. For serious housebreaking the maximum sentence is 10 years, for theft 3 years, where the value of the items taken is under TOP$10,000.

Comparable sentences

9. R v Liku (Unreported, Supreme Court, CR 47/2019, 24^th May 2019. A sentence of 2 years for the house break and 3 months concurrent for theft electrical equipment including television, freezer and gaming equipment. A total sentence of 2 years’ imprisonment.
10. R v Malafu CR 133/20216; serious house breaking and theft were valuable and irreplaceable heirlooms such as Tongan mats with a value of in excess of TOP$15,000 were stolen, a starting point of 3 ½ years was deemed appropriate.
11. R v Lakalaka (Unreported, Supreme Court, CR 118/2021 7^th September) I imposed 16 months for the house breaking and 10 months for the theft where $10,900 of computer equipment was stolen.

Previous convictions

12. From 2010 to 2014 he was convicted of 8 offences of theft and 3 of serious house breaking.
13. He committed offences of serious housebreaking and associated thefts in 2018, 2019 and 2020. For the first two he was given fully suspended terms.
14. The latter being activated when he was sentenced for the offence he committed in 2020.
15. His youth, his plea and his desire to rehabilitate I have considered.
16. There has been little sign of a wish to rehabilitate and he was given chances in the early sentences imposed. He squandered them.
17. I fully accept that he co-operated with police and pleaded guilty. Those features I have acknowledged in giving him the maximum possible discount for his early guilty plea.

Pre-sentence report

18. His pre-sentence report sets out both how the last few years have disintegrated into crime, alcohol and drug use.
19. He is employed, but has a very poor work record, both in terms of his failures to attend and his rude and poor treatment of colleagues.
20. Against that he has kept up his employment since the beginning of 2021 and he has expressed his willingness to change and make amends.

Sentence

21. Because of the repeated break-ins to the same property, the damage to that property and leaving the property insecure as he did, I consider for the offence of serious house breaking, a starting point of 2 ½ years is appropriate in this case.
22. I will reduce that by 30 % to reflect his guilty plea.
23. That gives a sentence of 20 months.
    

Theft

24. For the offences of theft, I pass a sentence of 10 months’ imprisonment which is to be served concurrently, to reflect the repeated thefts from the same home, the value of the goods and their being cynically appropriated to cash in on; taken to the “loan place”, as he stated in his police interview.

Crown’s position on sentence

25. The Crown have submitted that following R v Katoa a starting point of 14 months is justified and a reduction of 2 months for his plea. A sentence of 4 months on the theft concurrent and none suspended because of his previous convictions. That is to say a total sentence of 12 months’ imprisonment.
26. I consider that because of the substantial damage that was caused to the property, as well as the repeated thefts, such a term would be inadequate in reflecting the scale of the criminality in this case.

Concurrent or consecutive terms

27. These being a series of connected offences I consider that following Hokafonu v Rex [2003] TOCA 3 at [51] the sentences must be concurrent in this case.

Suspension

28. The principles for suspending a sentence are set out in Mo’unga [1998] Tonga LR 154.
29. The Crown have submitted that none of his sentence should be suspended as there have been a serious of house breaking and theft offences since 2010 and that this behaviour has gone on unabated.
30. Yet he is relatively young, he is still only 28 years old and the pleas of guilty do indicate that there is yet some hope for rehabilitation. I have thought very carefully about whether any part of that sentence ought to be suspended. Because of the signs of a willingness to change set out in the very helpful probation report, I am just persuaded that some suspension is merited.
31. Accordingly, I shall suspend the last 6 months of his term of imprisonment for 2 years on the following conditions, that:
    1. within 48 hours of the defendant’s release, he is to report to probation;
    2. he completes a drug and alcohol awareness course during his period of imprisonment;
    3. during his imprisonment he is to undertake counselling with Rev.Semisi Kava.
    4. he must not commit any offence punishable by imprisonment, and
    5. he must complete a life skills course as directed by his probation officer.

Total sentence

32. The defendant is sentenced to 20 months’ imprisonment with the final 6 months suspended for two years on the above conditions.
33. His sentence is to run from date of first remand, which was 5^th April 2022.
    

NUKU’ALOFA N.J COOPER

3 JUNE 2022 J U D G E