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R v Fainga'a [2022] TOSC 64; CR 206 of 2021 and CR 95 of 2021 (1 August 2022)

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


CR 206 of 2021
CR 95 of 2021


REX


-v-


[1] KALOLAINE FAINGA’A
[2] KISIONE TO’AHO


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr F. Samani for the Prosecution
No appearance by the First Defendant (sentenced in absentia)
Ms L. Tonga for the Second Defendant
Date: 1 August 2022


The charges

  1. The First Defendant (“Kalolaine”) was charged with serious housebreaking, contrary to s. 173, and theft, contrary to ss 143 and 145 of the Criminal Offences Act (“the Act”). On 11 January 2022, she pleaded not guilty to the charges.
  2. The Second Defendant (“Kisione”) was charged with one count of receiving stolen property, contrary to ss 148(1) and (5) of the Act. Upon his arraignment on 1 April 2022, he also pleaded not guilty.
  3. On 23 June 2022, at the commencement of their trial, both Defendants changed their pleas to guilty on all counts.

The offending

  1. At around 9 p.m. on 8 June 2021, the Complainant, Tahirih Hokafonu, returned home with her family from a funeral and noticed that one of the doors to their house was open. The next day, she discovered that a MacBook Pro laptop, an iPad, a 2-terabyte external drive, a projector and accessories, a 32-gigabyte dual drive and other accessories were all missing. Their total value was $12,095. On 10 June 2021, she lodged a complaint with the Police.
  2. On 16 June 2021, the Complainant managed to track her laptop via GPS and informed Police that its last known location was at a house in Tokomololo. When Police attended that residence, they found Kisione’s wife using the Complainant’s iPad. They then went to his computer repair shop on Fatafehi Road. He told the Police that Kalolaine had approached him, in need of money, and sold the items to him.
  3. All the items were recovered and returned to the Complainant. Both Defendants co-operated when questioned and admitted to the offending.

KALOLAINE FAINGA’A

Crown’s submissions

  1. The Crown submits the following as aggravating features of Kalolaine’s offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentencing formulation:

Victim impact report

  1. The Complainant is 41 years of age and is currently employed at the New Zealand High Commission. Since the offending, the Complainant and her family have been more cautious with where they leave their valuable items at home. It has also affected her daughter, who blames herself because she was the one the Complainant had asked to take the items into their house on the night they were stolen.
  2. According to the Complainant, a mobile phone was also stolen which was never discovered but she did not report it because it was a personal item. She only reported the other items because most of them belonged to her employer.
  3. Kalolaine apologized to the Complainant on the day she pleaded guilty. The Complainant has forgiven both Defendants.

No presentence report

  1. Following their re-arraignment on 23 June 2022, both Defendants were directed to attend the probation office within 48 hours to arrange for the preparation of their presentence reports.
  2. On 22 July 2022, the probation office advised the Court that they had been unable to prepare a report for Kalolaine because she failed to attend their office as directed.
  3. As noted above, Kalolaine did not appear today when the matter was called for sentencing. Enquiries of the prison last week indicated that she may have been arrested on another matter but, as of today, that had not been confirmed.

Starting points

  1. The maximum statutory penalty for serious housebreaking is 10 years imprisonment, and for theft (of items with a value exceeding $10,000), 7 imprisonment years.
  2. Those who steal people’s possessions risk going to prison: R v ‘Ana Katokakala Siale (CR 33, 39 of 2013, 25 July 2014, Cato J). However, the Court of Appeal has long held that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary: Mo’unga v R [1998] TLR 154.[2] Kalolaine’s previous conviction in 2021 for identical offending is, by itself, such a circumstance.
  3. I have also considered the comparable sentences referred to in R v 'Akau [2021] TOSC 150 which indicate a slightly higher range of starting points than submitted by the Prosecution.[3]
  4. Having regard to the seriousness of the offending (including that the stolen property was recovered on the one hand but also the other impacts on the Complainant and her family on the other), the comparable sentences and principles referred to above, the previous conviction referred to and its temporal proximity to the instant offending, and in particular, the sentencing objectives of deterrence and protection of the community, I set the following starting points:

Mitigation

  1. For the Defendant’s belated guilty pleas and her apology to the Complainant, I reduce those starting points to:

Suspension

  1. The considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 favour partial suspension. Kalolaine is still relatively young, and she cooperated with the authorities. Against that, she does not have a good previous record and it includes one fully and one partially suspended sentence within the last two years.
  2. In the circumstances, I am prepared to afford her what may very likely be her last opportunity for rehabilitation by ordering that the final 8 months of the sentence be suspended on the conditions set out below.

KISIONE TO’AHO

Crown’s submissions

  1. The Crown submits the following as aggravating features of Kisione’s offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown relied on the same comparable sentences as referred to above.
  4. The Crown submits that an appropriate starting point is 2 years’ imprisonment, reduced by 8 months for mitigation, resulting in a sentence of 1 year and 4 months’ imprisonment, to be fully suspended for a period of two years on conditions.

Victim impact report

  1. The same victim impact report as referred to above has also been taken into account in relation to Kisione.

Presentence report

  1. Kisione is 34 years of age. He is married with four children. He was raised by educated parents in a family well-known for being active in community and church activities in Tokomololo. He was educated to Form 7 at Tonga College. He started his own computer business in 2011 which has been the main source of income for he and his family.
  2. In relation to the offending, Kisione explained to the probation officer that Kalolaine came to his house and offered to sell him the goods for $800. He told her that he only had $300, which she accepted. He told the probation officer that he regrets buying the goods and has ‘learned his lesson’ to never accept goods from someone he does not know.
  3. As indicated in the two letters of support provided, the probation officer described Kisione as a trustworthy and hardworking person. He has expressed remorse. He also volunteered to the probation officer (not referred to in the Prosecution submissions) that he had a conviction for common assault in 2008 when he was at school. The officer opined that Kisione is unlikely to reoffend.
  4. The probation officer recommends a fully suspended sentence on conditions including community work.

Defence submissions

  1. In addition to the information contained in the presentence report, Ms Tonga submitted, relevantly and in summary:
  2. For those reasons, Ms Tonga submitted that the Court should either discharge Kisione without conviction pursuant to s. 204 of the Act or impose a fully suspended sentence on conditions.

Starting point

  1. The maximum statutory penalty for receiving stolen property in this case is 7 years imprisonment.
  2. Section 204 of the Act provides, relevantly:
204 Discharge without conviction
(1) Where a court is of the opinion, having regard to the circumstances including the nature of the offence and character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may make an order discharging him absolutely or alternatively discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified therein.
(2) A discharge under this section is deemed to be an acquittal.
  1. In considering Ms Tonga’s primary submission, there are four elements to s. 204 must be examined:
“19. ... that does not automatically mean that in a case of a thief supplying stolen goods to a receiver, the receiver must receive the same sentence as the thief. There may be cases where the respective starting points differ by reference to differing levels of culpability. ...”
(b) Secondly, Kisione’s character is defined, for present purposes, by his previous criminal record and present lawful endeavours: R v Brendon and others (1983) 5 Cr.App.R. (S.) 328. It is curious that the 2002 conviction for housebreaking and theft referred to by the Prosecution was not referred to in the presentence report or Ms Tonga’s submissions despite the fact that Kisione volunteered to the probation officer details of a 2008 conviction for assault. A search of the Court records has not revealed any conviction in 2002. In any event, if it is the case, the fact that Kisione has not committed any dishonesty offence for circa 19 years is a very positive reflection of his character along with the fact that he has been operating his own business since 2011, has married and is supporting four children and devotes his time in assisting the scholarship club.
(c) Thirdly, it is apparent from the accounts given of the offending and the circumstances surrounding it that Kisione knew or ought reasonably to have known that the goods were stolen when Kalolaine presented them. He succumbed to the temptation and opportunity presented by Kalolaine being prepared to take whatever amount of money Kisione had on him. But for his wife’s righteous intervention, it is likely that Kisione would have kept the goods or tried to sell them in his store. For that reason, and notwithstanding that Kisione’s culpability is significantly less than Kalolaine’s, I do not accept that is it inexpedient to inflict punishment for the offending.
(d) Fourthly, the consequence provided by ss (2) – a deemed acquittal – would not be a just outcome given the seriousness of the offending here. It would also set a flawed precedent for future cases of receiving. An important sentencing objective in cases such as this is deterrence.
  1. For those reasons, I decline to make an order pursuant to s. 204. For the same reasons, I do not consider that a fine or an order for probation would be appropriate.
  2. The circumstances canvassed above also warrant a custodial sentence. Having regard to the seriousness of the offending, the comparable decisions, principles and submissions referred to above, I set a starting point of 2 years’ imprisonment.

Mitigation

  1. For the Defendant’s late guilty plea, his co-operation with the authorities, and his long period without any relevant convictions, I reduce the starting point by 8 months, resulting in a sentence of 16 months’ imprisonment.

Suspension

  1. Having regard to the considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157, I agree with the Prosecution’s submission, the probation officer’s recommendation and Ms Tonga’s alternative submission, that the sentence should be fully suspended. My principal reason for doing so is that it appears highly likely that Kisione made a foolish mistake and from which he has learned his lesson. That view is supported by his demonstrated remorse, the Complainant’s acceptance of his apology and her reported desire to have the charge dropped. For those reasons, I am satisfied that he is very likely to take the opportunity presented by a suspended sentence to rehabilitate and not reoffend.
  2. I have not found it necessary to consider the ‘breadwinner plea’. If I had, then in accordance with a long line of Court of Appeal authority, it would have carried little weight and would not have been a reason, of itself, for full suspension: R v Wolfgramm [2020] TOSC 78 at [47].
  3. In relation to the Prosecution’s submission that suspension should be on conditions including community service, I am not satisfied that that is necessary for three reasons. Firstly, as the goods were all recovered, and he has been forgiven by her, Kisione does not owe any debt as it were to the Complainant. Secondly, as for his debt to, and the protection of, society, and society’s interest in Kisione being rehabilitated, a prison sentence hanging over his head for the period of suspension will serve that purpose. Thirdly, he is engaged full time in his business, by which he is supporting his family and servicing a significant debt, and he is already engaged in community work in the form of the scholarship club.

Result

  1. Kalolaine Fainga’a is convicted of:
  2. The final 8 months of the above sentence is to be suspended for a period of 2 years from the date of her release, on condition that during the period of suspension, Kalolaine is to:
  3. I order that a warrant be issued for the arrest of Kalolaine Fainga’a for breaching her bail conditions by failing to appear this day. Upon her arrest, she is to be taken directly to Hu’atolitoli Prison to commence her sentence.
  4. Kisione To’aho is convicted of receiving stolen property and sentenced to 16 months’ imprisonment. The sentence is to be fully suspended for a period of two years, on condition that during the said period of suspension, he is not to commit any offence punishable by imprisonment.
  5. Failure to comply with any of the above conditions may result in the suspension being rescinded and the defaulting Defendant being required to serve the unserved portion of his/her prison term.



NUKU’ALOFA
M. H. Whitten QC
1 August 2022
LORD CHIEF JUSTICE

[1] The Crown’s submissions did not include the date those offences were committed or whether they occurred before or after the instant offending.
[2] Eukaliti v Police [1994] To.L.R 80.
[3] Tevita Fifita (CR 74/2018); Penisiliti Malafu (unreported, CR 133/2016, 29 March 2018, Cato J); Maikolo ‘Ealelei (CR 162/2018); Kelikupa Maile (unreported, CR 133/2019).
[4] In which the Defendant there was sentenced to 3 years imprisonment.

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