R v Vaiangina [2022] TOSC 54; CR 112 of 2021 (15 July 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 112 of 2021

REX

-v-

‘ALEFOSIO VAIANGINA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr T. ‘Aho for the Prosecution

The Defendant in person

Date: 15 July 2022

The charges

1. On 1 June 2022, the Defendant was convicted after trial of one count of serious housebreaking, contrary to ss 173(1)(b) and (5) of the Criminal Offences Act and one count of theft, contrary to ss 143(b) and 145(b) of the said Act.

The offending

2. The offending took place at the Royal Palace in Neiafu, Vava'u. On the morning of 27 October 2017, the Royal housekeeper entered the Palace through the kitchen door and noticed that frozen meat had been left out of the fridge. She immediately checked the rest of the residence and found that a number of Tongan mats, valued at $22,800, were missing. When inspecting the outside of the Palace, the housekeeper found that a number of louvres from the King’s bedroom had been removed. She then reported the matter to the Governor’s office and then the police. A police specialist found latent fingerprints on the louvres. Analysis of those prints by the Tonga Police Forensics Unit in Tongatapu identified a number as belonging to the Defendant.
3. The Defendant did not co-operate when questioned and chose to remain silent.
4. During his trial, the Defendant’s attempted alibi defence collapsed when he gave a number of inconsistent versions and his witnesses for that purpose failed to give evidence. The expert evidence of the police fingerprint expert was accepted in respect of certain of the prints, and on that basis, the Prosecution successfully proved that it was the Defendant who committed the offences.

Crown’s submissions

5. The Crown submits the following as aggravating features of the offending:
   • (a) to commit such crimes against the Royal family is extremely serious;
   • (b) the stolen goods were of significant monetary and cultural value;
   • (c) none of the stolen goods have been recovered;
   • (d) after committing the offences, the Defendant fled to Tongatapu in order to evade police detection, which contributed to delays in progressing the case;
   • (e) the Defendant maintained his innocence throughout the proceeding, taking up time and resources;
   • (f) the Defendant has a lengthy criminal record:
     • (i) 1992 – trespass – probation;
     • (ii) 1995 – drunkenness – 3 weeks’ imprisonment;
     • (iii) 1997 – unlawfully being on enclosed premises at night – 3 months’ imprisonment, final 2 months suspended for 12 months;
     • (iv) 1997 – housebreaking and theft – 18 months imprisonment;
     • (v) 1999 –housebreaking and theft – 3 years imprisonment;
     • (vi) 2002 – unlawful entry into a building at night – 7 months’ imprisonment;
     • (vii) 2003 – drunkenness – 14 days’ imprisonment;
     • (viii) 2003 – wilful damage to a commodity – 2 months’ imprisonment, suspended for 12;
     • (ix) 2003 – trespass – 3 weeks’ imprisonment;
     • (x) 2004 – unlawfully being on enclosed premises at night – 1 year imprisonment;
     • (xi) March 2005 – housebreaking and theft – 3 years’ imprisonment, final six months suspended for 3 years;
     • (xii) March 2005 – robbery – 12 years’ imprisonment;
     • (xiii) May 2005 – escaping from prison – 6 months’ imprisonment, fully suspended;
     • (xiv) July 2005 – housebreaking and theft – 3 years and 4 months’ imprisonment;
     • (xv) 2011 – indecent assault and common assault – 2 years’ imprisonment to commence upon release on the robbery;
     • (xvi) 2016 – (Magistrates Court CR 580, 581/2016) housebreaking and wilful damage to a building – 2 years’ imprisonment, final year suspended for 3 years;
     • (xvii) 2021 – failure to comply with directions of authorized officer – 2 months’ imprisonment.
6. The Crown submits that only mitigating factor is that since the instant offending, the Defendant has not committed any other property offences, which may indicate, as he expressed during the trial, that he is ‘a changed man’ now.
7. The Crown referred to the following comparable sentences:
   • (a) Penisimani Tupa (CR 76 105/17) – the Defendant pleaded guilty to three counts of serious housebreaking and three counts of theft of Tongan mats from different residences with a total value of $12,400. The Defendant had a long criminal history. Cato J considered him a recidivist with a very doubtful ability to rehabilitate. A starting point of 6 years’ imprisonment was set for the housebreaking counts which was reduced by 12 months for mitigation, resulting in a sentence for the housebreaking of 5 years’ imprisonment. For the first theft count, involving the most expensive of the mats, Cato J impose a sentence of 3 ½ years imprisonment taking into account the Defendant’s guilty plea. Twelve months of that sentence was to be served cumulatively on count 1 making an overall sentence of six years imprisonment. No part of the sentences was suspended.
   • (b) Penisiliti Malafu (CR 113/16) – the Defendant was convicted after trial of serious housebreaking and theft of Tongan goods valued at $15,000. For the serious housebreaking, a starting point of 3 ½ years’ imprisonment was set. There were no mitigating factors. For the theft, the Defendant was sentenced to 2 years’ imprisonment to be served concurrently. The final 6 months of the head sentence was suspended on conditions.
   • (c) Kelikupa Maile (CR 133/19) – the Defendant was convicted after trial for serious housebreaking and theft of Tongan mats and other goods valued at $14,900. For the serious housebreaking, a starting point of 3 years and 9 months’ imprisonment was set. Following discounts for his lack of previous convictions and important information provided to police in retrieving some of the stolen items, the Defendant was sentenced on the serious housebreaking to 3 years and 3 months’ imprisonment with the last 12 months suspended. For the theft, he was sentenced to 2½ years’ imprisonment to be served concurrently.
   • (d) Maikolo ‘Ealelei (CR 162/18) - the Defendant, who was a young repeat offender, pleaded guilty to serious housebreaking and theft of Tongan goods valued at $34,269. He was sentenced to 4 years’ imprisonment for the serious housebreaking and 2 ½ years for the theft.
   • (e) Lafitani Mahe (CR 42 182/20) – the Defendant was found guilty of serious housebreaking and theft of Tongan koloa valued at $30,000 and other items and cash totalling $2,000. Only $500 worth of goods was recovered. A starting point of 4 years’ imprisonment was imposed for the serious housebreaking with 12 months added to reflect the Defendant's previous convictions, resulting in a sentence of 5 years. The Defendant was sentenced to 2 years imprisonment for the theft, to be served concurrently.
8. Here, the Crown proposes the following sentence formulation:
   • (a) the head sentence is count 1;
   • (b) a starting point of 4 years’ imprisonment;
   • (c) for the aggravating factors, at least 12 months should be added;
   • (d) 2 years’ imprisonment for count 2, to be served concurrently; and
   • (e) partial suspension.

Presentence report

9. The Defendant is 44 years old. He is the seventh of 15 children. His father was a Pastor of the Free Church of Tonga. As a result, the Defendant was raised in a religious household but he and his family moved around regularly due to his father’s work. The size of the family also made it difficult to meet their financial needs.
10. The Defendant was educated to form 4. He then “wandered” around “from place to place.”
11. The Defendant is married with two children aged 6 and 3. He does not have any stable employment other than occasional contract work. He has been mostly financially dependent on his wife, who travelled overseas on the fruit picking scheme but has not returned. When he was arrested last year, his children were placed in the care of his sister and her family.
12. In relation to this offending, the probation officer recorded the following:

"The accused has pleaded guilty [sic] for the count that he was accused of, his version of the offending say otherwise. The offender said he has no lawyer to defend him because he cannot afford to pay. He was in Tonga and just went to Vava'u in 2017 for his father’s funeral, however he did not know how it happens when the police charged him with the crime committed. He also comment maybe his previous history of housebreaking and theft has led the police to believe he was responsible for the committed crime even though he deeply knew he was innocent.... The offender denied the committed crime and uphold [sic] his innocence ...”

13. The Defendant told the probation officer that he is now a changed man, that he is remorseful for his previous life because “it seems to follow him everywhere”, that “everything seems meaningless” and that his children kept him going through his difficulties in prison. The town officer of Manuka also described the Defendant as a changed man who ensured that his children attended school and participated in any contracting jobs to provide for his family.
14. The probation officer recommended a partially suspended sentence on conditions.

Starting points

15. The statutory maximum penalty for serious housebreaking is 10 years’ imprisonment and 7 years for theft.
16. Here, the head offence is the serious housebreaking. It would appear that this is the first published case of housebreaking and theft perpetrated against the Royal family. However, it is not the first case involving the theft of Tongan koloa.
17. In R v ‘Ana Katokakala Siale (CR 33, 39 of 2013, 25 July 2014) Cato J opined:

“... This Court must send out a message that those who steal people’s possessions such as their mats and other items of similar kind valuable to Tongans run a real risk of going to prison. For many Tongans, their mats represent their most valuable possessions and are often found in homes which are not very secure and are easily able to be entered. Indeed, this is a warning to those who steal mats that they can expect to go to prison and those who receive those mats for on sale can also expect to receive sentences of imprisonment.”

18. And in Rex v Tupa [2017] TOSC 35 (referred to by the Crown above), his Honour repeated that admonition when he stated:

“[2] ... It is particularly concerning that in each case the property stolen was fine mats. Plainly, there exists in Tonga an illicit market for Tongan mats and artefacts. I have warned in previous cases, that this Court will view very seriously housebreakings which have as their object the theft of Tongan mats, and also very seriously receivers of those mats. Tongan mats require a great deal of time and effort in production and are very much part of Tongan culture and heritage.
...
[7] ... To steal Tongan mats is mean spirited and merits severe punishment.”

19. Having regard to the seriousness of the offending, the value of the property stolen, none of which has been recovered, the statutory maximum penalties, the comparable sentences and principles referred to above, and the Defendant’s long and deplorable criminal history, which, until recently, reads as a catalogue of habitual recidivism for this type of offending and a blatant disregard for the law, I set a primary starting point for the serious housebreaking of five years imprisonment. Further, on account of the Defendant’s brazen disrespect for the Monarch by targeting the Royal Palace, I increase that starting point by one year making a total starting point of six years imprisonment.
20. I set a starting point for the theft of three years imprisonment.

Mitigation

21. There are no mitigating factors in the material before me to warrant any reduction in those starting points.

CR 580, 581/2016

22. As noted above, the Defendant’s last significant conviction was on 28 September 2016, for housebreaking and wilful damage to a building, for which he was sentenced in the Magistrates Court (on the head count) to two years imprisonment with the final year suspended for three years.
23. The instant offending occurred on 27 November 2017, that is, during the three-year period of suspension of his last prison sentence.
24. Therefore, pursuant to ss 24(3)(c) of the Criminal Offences Act, the Defendant is required to serve the term of that suspended sentence in addition to the punishment imposed for the instant offences. The material does not reveal any special circumstances^[1] as provided for by ss (e) by which the Court may release the Defendant from the operation of ss (c).

Suspension

25. The considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 are almost all against any suspension of the sentences. The Defendant is not young. He has a substantial and relevant criminal history. The offending was clearly premeditated. There are no circumstances which suggest any diminution in culpability. He did not co-operate with the authorities. He has not shown any remorse.
26. The only positive factor is that it has now been almost six years since his last sentence for housebreaking and approximately 4 ½ years since this offending occurred. While the precise nature of the offending in the Defendant’s most recent conviction in April 2021 was not disclosed in the material, I suspect that by the nature of the offence (failure to comply with directions of an authorised officer) and the amount of the fine, it may have been related to the COVID-19 restrictions. If so, the significant period within which the Defendant has refrained from any further housebreaking or theft offences is some evidence that he is in fact a changed man or is at least in the process of becoming one. His evident affection for his children is also encouraging.
27. For those reasons, I am prepared to suspend part of the sentence so as to provide incentive and support for the Defendant to continue with and maintain his apparent reform.

Result

28. The Defendant is convicted on:
    • (a) count 1, serious housebreaking, and is sentenced to 6 years imprisonment; and
    • (b) count 2, theft, and is sentenced to 3 years imprisonment, to be served concurrently with the sentence on count 1.
29. The suspended sentence in Magistrates Court proceedings CR 580, 581/2016 is rescinded and the final year of that sentence is added to the head sentence above, making a total sentence of 7 years imprisonment.
30. The final two years of the sentence is to be suspended for a period of three years, on condition that during the said 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 48 hours of his release from prison and thereafter as directed by his probation officer; and
    • (d) complete a life skills course with the Salvation Army as directed by his probation officer.
31. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his prison term.
32. The sentence is to be backdated to the date on which the Defendant was remanded in custody for this proceeding, excluding the period during which he was mistakenly released from custody in Vava'u prior to his trial.

NUKU’ALOFA	M. H. Whitten QC
15 July 2022	LORD CHIEF JUSTICE

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^[1] Such as where the subsequent offence is relatively trivial: Attorney General v Penisimani Angilau (Court of Appeal, AC 31/21, 23 May 2022).