R v Toki [2022] TOSC 60; CR 196 of 2021, CR 49 of 2022 and CR 56 of 2022 (28 June 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 196 of 2021 and CR 49 & 56 of 2022

REX

-v-
Rodney TOKI

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. ‘A. ‘Aholelei for the Prosecution
Defendant in person
Date of sentence: 28^th June 2022

1. Rodney Toki stands to be sentenced for one count of theft and three counts of serious house break with three associated thefts.
2. These offences represent a crime spree that spanned from late July 2021 until the end of August that year.

CR 196/2021

3. On about the 23^rd of July 2021 the complainant returned home to find that his house had been broken into and number of items been stolen.
4. These included a flatscreen television, a video machine, an iPad and a laptop as well as car tyres and 5 ta’ovalas. All with an approximate total value of $14,000.
5. The police investigated. Through Facebook they found messages from the defendant to one Bruno Latu, concerning the sale of the flat screen television in question. Ultimately this led to the defendant being identified and arrested. When he was interviewed he denied stealing the electronic items but finally, when this case was committed to the Supreme Court, he pleaded guilty to this single count indictment.

CR 49/2022

6. Around the last week of July 2021 the complainant travelled to Vava’u leaving his house in Fangoloto secure. Sometime later that week it was discovered that his house had been broken into and a number of items of jewellery had been stolen.
7. During the police investigation, Bruno Latu was spoken to by the investigating officer. Mr Latu made available to police pictures sent to him on Facebook messenger by the defendant. In these images Mr Toki can be seen wearing pieces of jewellery that were taken in the Fangoloto house-break.
8. That in turn led to a search of his residence. Items including a gold earring, a gold bracelet and a golden white watch were recovered by the police; all had been taken in the house break at Fangaloto.
9. $25,000 worth of jewellery was stolen in that house break. Less than half the items were recovered by the police.

CR 56/2022

10. (i) On about 2^nd August 2021, Mrs. ‘Ahokava’s home was broken into. Her CCTV camera and its charger, to the value of $500, were both stolen.
11. CCTV was recovered and this showed a male, consistent in build with Mr. Toki carrying a machete and entering the complainant’s property.
12. (ii) On about 28^th August 2021 Mrs. Taufa’s home was broken into. Tongan traditional mats and electronic equipment including laptop, iPad external hard drive were all stolen they had an approximate value of $4,600.
13. In respect of the break in to Mrs ‘Ahokava’s home police questioned Mr Toki while he was in custody in relation to another matter and he admitted the offending.
14. In relation to the break in to Mrs Taufa’s home, Police searched Mr. Toki’s residence and they found a number of the Tongan traditional mats taken from Mrs ‘Ahokava’s home and this linked him to that break in.
15. Ultimately Mr. Toki pleaded guilty to all three indictments and now he stands to be sentenced for these offences.

Victim impact

16. Mrs. ‘Ahokava lost her CCTV equipment in the theft. Not only the cost of those items but the inherent worry of the targeting of a security system left her badly shaken. She now becomes anxious hearing noises outside at night and does not want to leave her house alone.
17. This was compounded by seeing the male intruder armed with a machete.
18. Mr and Mrs. Taufa lost equipment to do with her work as a teacher, his studies as a student and that data can not be replaced. This makes the level of harm inflicted on them high.
19. Their security doors were also damaged and having a home broken into and then left insecure increases that harm.
20. Mr. Paea’s residence was broken into twice, offences 49/2022 and 196/2021. Beyond the worry of having one’s home repeatedly burgled there was the loss of high value electronic devices and jewellery. Mr. Paea was not able to be contacted and no further details are known.

Maximum sentences

21. By virtue of s.173(5) Criminal Offences Act for serious housebreaking the maximum sentence is 10 years’ imprisonment.
22. For theft under $10,000 a maximum of 3 years’ imprisonment; s. 145 (a) Criminal Offences Act; over $10,000 a maximum of 7 years’ imprisonment; s. 145 (b) Criminal Offences Act.
    

Comparable sentences

23. R v ‘Ealelei (Unreported, 162/2018. Paulsen LCJ)

The starting point of four years’ imprisonment was considered appropriate in the case of housebreaking and thefts were $34,269.00 worth of property was stolen.

24. R v Fifita (Unreported, 74/2018, Cato J).

The starting point adopted in this case where cash to the value of $21,664.12 was stolen from the shop was 3 years.

25. R v Malafu (CR 133/20216);

Serious house breaking and theft were valuable and irreplicable heirlooms such as Tongan mats with a value of in excess of $15,000 were stolen a starting point of 3 ½ years was deemed appropriate.

26. R v Liku (Unreported, Supreme Court, CR 47/2019, 24^th May 2019).

A starting point of 2 years was adopted for housebreak and theft of electrical equipment including television, freezer and gaming equipment to a value of £13,900.00.

27. 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, working on the basis that the appropriate starting point was 2 years.

28. R v Katoa (Unreported, 4/2021)

I imposed a starting point of 14 months on offences of serious housebreaking and theft where £2,500.00 worth of goods were stolen. 14 months on the housebreaking and 12 months on the theft, concurrent.

Previous convictions

29. The information I have before me is both unclear and plainly incomplete.
30. Two offences of theft before the Fasi Magistrate’s Court resulted in a probation order August 2014 and for the offence August 2015 a sentence of one months’ imprisonment.
31. In May 2017 he was sentenced before the Supreme Court for offences of robbery, serious housebreaking, criminal damage and common assault and received a total sentence 4 years and 6 months. The record states “all are concurrent to 6 years imprisonment”, but there is nothing before me that explains what those 6 years relates to. This is most unfortunate.
32. Two further offences of theft before the Fasi Magistrate’s Court, July and August 2020 merited 1 month and 4 month prison sentences respectively.
33. In November 2021, I sentenced him to 12 years and 3 months’ imprisonment for a series of armed robberies of Chinese shops between 8^th and 11^th January 2021.
34. Looking at my sentencing remarks regarding his antecedent record I stated therein:

He is 27 years old and has 6 previous convictions for 9 offences from 2014 and 2020, including 2 for robbery, both in 2016, the second of which he received a sentence of 6 years’ imprisonment, the final 18 months suspended. Other offences include 4 for theft as well as serious house breaking and common assault.

35. I note that it was while he was on bail for the offences of robbery that he committed the offences that he is to be sentenced for.

Aggravating features

1. Theft of high value traditional handmade items.
2. Taking of portable electrical items that can easily be re-sold.
3. Going armed with a machete.
4. Loss of valuable course work.
5. Targeting of high value jewellery.
6. Offences committed on bail.
   

Mitigating features

1. There was some co-operation with the police

The calculation of the sentence

36. I make CR49/2022 the head count, given the value of the property involved. Having considered the comparable sentences, I am satisfied that 4 years’ imprisonment is the appropriate starting point. I impose that on the housebreaking and no separate penalty on the theft.
37. I decline to alter that, save as to give a discount of 30% for his early guilty plea. That gives a sentence of 34 months’ imprisonment.
38. CR196/2021, I make the starting point 2 years’ imprisonment on the single count. That I do not vary, save to reduce by 30 % for the early guilty plea. That gives 17 months.
39. CR56/2022; (i) for the housebreaking and theft of the video equipment, I impose a 2 year starting point on the serious housebreaking. This, I increase to 3 years for the carrying of a machete during the commission of that crime. For the theft, no separate penalty.
40. I am quite sure that the carrying of a weapon that attracts a sentence starting point of around 6 ½ years for offences of grievous bodily harm and 4 years for serious bodily harm^[1] means that it would be craven to not mark the seriousness of the use of this weapon in the instant offence without a substantial increase, accordingly that is what I do.
41. 3 years, then 30% discounted for his timely guilty plea, that gives a 2 year sentence.
42. For (ii) the offences committed on 26^th August, theft of the electronic items; laptop, hard drive inter alia, and Tongan traditional mats, I adopt a starting point of 2 years for the offence of serious housebreaking. This I increase to 2 ½ years to reflect the loss of the important data.
43. The deliberate targeting of a single hard drive will so often mean the loss of backed-up and precious files that this must be a serious aggravating feature.
44. From that I reduce the sentence by 30% to reflect the guilty plea.
45. That gives 20 months.

Concurrent or consecutive sentences

46. Following the observations in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, I consider the questions of concurrent sentences or consecutive and then turn to totality.
47. As observed in Hokafonu v Rex [2003] TOCA 3 offences that are unrelated should normally attract consecutive terms; related offences a concurrent sentence.
48. In considering this question I have considered the criteria as set out in R v Asa [2020] TOSC 72; whether so closely connected and then turn to consider the impact of an overall sentence mindful of the totality principle.

The question involves two issues: first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent.^[2]

49. All these offences are similar, being acquisitive offences; and were committed within approximately 6 weeks of one another.
50. I have no doubt that these offences form a course of conduct and so are a series of related offences.
51. What is the practical impact of this ?
52. Plainly it would be unjust as well as failing society at large were the courts to simply say in every case that because the defendant committed a series of offences then all the sentences should be made concurrent.
53. Lord Chief Justices Whitten QC in R v Faka’anaua ‘Akau (29 of 2021) [23] considered this question when sentencing an offender for a count of escaping lawful custody, as well as a single offence of both serious housebreaking and theft.
54. The approach there was to impose a sentence of 10 months for the escape from lawful custody and 45 months for the serious house breaking (30 months for the theft was concurrent to count 2) but make 28 months of count 2 consecutive with count 1 and those sentences consecutive to a term of imprisonment the defendant was already serving.
55. The logic was that in that case the defendant showed “brazen disregard for the law”.
56. This is certainly how I must categorise the conduct in the instant case.
57. Therefore I respectfully consider the proper approach is to follow the one LCJ Whitten QC adopted in Akau. But I will take a lower proportionate of the sentences for the counts that are to be made consecutive, so make it 50% of those sentences that count towards the overall sentence, given the number of offences Mr. Toki faces.
58. CR49/2022; 34 months, CR196/2021; 17 months. CR56/2022; (i) 24 months and (ii) 20 months.
59. That makes 34 months to be added to 50% of the remaining 3 sentences, each consecutive to one another; 34 months +8 months +12 months +10 months ; that gives a total of 64 months.

Totality

60. For this series of offending, that included on one occasion going armed with a machete to a domestic residence, as well as targeting high value electronic items and jewellery, the loss of valuable personal data on a hard-drive, I do not consider a sentence of 5 years and 4 months to be excessive, in fact justly merited in all the circumstances and I decline to alter it in any way on account of totality.

Suspension

61. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
62. Considering the 4 principles and the overarching aim in promoting rehabilitation I conclude that while Mr. Toki is relatively young, these offences were committed on bail while awaiting trial for a series like offence, as well as his history of committing offences of theft and serious house breaking and robbery, all force me to conclude that in this case it would be wrong to suspend any portion of his sentence. The aims of Mo’unga to suspend a sentence where signs of rehabilitation weigh in the balance have been dashed aside by Mr. Toki’s constant offending.

His current term of imprisonment

63. My last consideration is whether any part of this sentence should run consecutively with his sentence of 12 years and 3 months for armed robbery?
64. I have considered this very carefully, including the loss and harm that was caused to the victims as well as the history of repeat offending, especially on bail.
65. Yet, I conclude that a term of 12 years and 3 months’ imprisonment is so substantial that to add to it would not be just.

Total sentence

66. For these offences an overall a sentence of 5 years and 4 months’ imprisonment is imposed. No part of that is to be suspended.
67. That sentence is to run concurrent with the term of 12 years and 3 months I imposed November last year for the armed robbery offences.
    

N. J. Cooper

J U D G E

NUKU’ALOFA

28 June 2022

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^[1] Siokatame Tupou v Rex AC 16 of 2018 [10]
^[2] R v Asa [2020] TOSC 72; [43]