R v Hungalu [2022] TOSC 74; CR 27 of 2022 (26 August 2022)

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

CR 27/2022

REX
-v-
SIOSAIA HUNGALU

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Ms. A. Fifita-‘Aholelei for the Prosecution
Defendant in person
Date: 26 August 2022

The proceedings

1. On 3 May 2022, the Defendant pleaded guilty to one count of serious housebreaking contrary to section 173(1)(b) and (5) of the Criminal Offences Act and one count of theft contrary to section 143(a) and 145(b) of the said Act.

The offending

2. On or about the month of April 2021 the Defendant entered the house occupied by Tepola Siunipa Lotu, the complainant, at Kolofo’ou and stole 3 fala vala, 3 lokeha, 4 ta’ovala putu, 1 ta’ovala and 2 kiekie lou’akau with a combined value of $13,900. On 29 April, 2021, the complainant discovered the said items were missing and filed a complaint with the police.

Crown’s submissions

3. The Crown submitted the following as aggravating factors:
   1. the defendant is a repeat offender for property offences;
   2. this was a crime of opportunity targeting highly valuable tongan ta’ovala therefore easy to be-resold;
   100. none of the items had been recovered.
4. The sole mitigating factor noted by the Crown was the Defendant’s early guilty plea.
5. The Crown referred to the following comparable sentences:
   1. Rex v Penisiliti Malafu CR 133/2016 – the accused stole tongan goods valued at $15,000 that was not recovered and was charged with serious housebreaking and theft. He was convicted after a defended hearing. The Court set a starting point of 3 years and 6 months’ imprisonment for the housebreaking and 2 years’ imprisonment for theft.
   2. Rex v Lisiate Lakalaka CR 118/2021 and R v Liku CR47/2019- involved the same offences of housebreaking and theft in the amounts of $10,900 and $13,900 respectively. The stolen property in these two cases were electrical items and devices.
6. The complainant told Prosecution that she was disappointed that a church residence was targeted and that the Defendant took advantage of people serving in God’s Ministry. She has not recovered the stolen property and understand they may never be recovered.
7. The Crown proposes the following sentencing formulation:
   1. Count 1 – housebreaking (headcount) - a sentence of 3 years’ imprisonment.
   2. Count 2 – theft - a sentence of 18 months’ imprisonment.
   3. The sentences be served concurrently with the Defendant’s sentence in CR173,186,191/2021 that the Defendant is currently serving.

Pre-sentence Report

8. The Defendant is 27 years old, is single and lived with his parents at the time of the offending. He is child No. 4 of 5 children. He had completed 6 years at ‘Apifo’ou College and after leaving college, had helped his father in the family plantation and accompanied him overseas on the NZ Seasonal Scheme.
9. His mother told the Probation Officer that the Defendant was a good boy until he started to hang out with the wrong crowd. She said that in visiting him in prison, she’s heard his stories of regret and observed a change in him.
10. The accused is reported to regret his actions and the embarrassment it has brought his family, especially his mother. He is sad that he has not been a good model for his younger brother and wishes for a better future. He joined the Rehabilitation Program while in custody and sees it as an opportunity to help him become a better person.

Starting point

11. The maximum statutory penalties for serious housebreaking is 10 years’ imprisonment and for theft 3 years’ imprisonment.
12. The Prosecution has treated Count 1, the serious housebreaking, as the headcount and I agree.
13. In considering the starting points, I have also considered similar cases such as R v Penisiliti Malafu^[1] where the value of tongan goods stolen was $15,000 and a starting point of 3 and 6 months imprisonment was set. And in R v Kelikupa Maile^[2], the value of tongan mats and other goods stolen was $14,900, a starting point of 3 years and 9 months imprisonment was set.
14. Having regard to the seriousness of the offence, described by Prosecution as one transaction in a “theft spree in the month of April and May”, the value of the property stolen, that none of the stolen property have been recovered and the comparable sentences referred to above, I set the following starting points;
    1. serious housebreaking – 3 years 6 months
    2. theft – 2 years.

Mitigation

15. For the Defendant’s early guilty plea, I deduct 6 months from the above starting points,

resulting in the following sentences of imprisonment:

1. serious housebreaking – 3 years; and
2. theft – 1 year 6 months.

Concurrent or Cumulative

16. Prosecution suggests that the Defendant should serve the sentences here concurrently with the sentence in CR 173, 186 and 191/2021 for which he is presently in custody.
17. In applying the test in R v ‘Asa [2020] TOSC 72 I agree with Prosecution and am satisfied that;
    1. the sentence in count 2 is to be served concurrent to the headcount;
    2. the present offences are closely connected and can be said to be part of one transaction with those in CR 173, 186 and 191/2021^[3], and
    100. the totality principle requires the sentences here to be made wholly concurrent with the sentences he is currently serving under the prior mentioned proceedings.

Suspension

18. At the time the Defendant was sentenced in this court by Niu J for CR 173, 186, 191/2021, he was serving a sentence of 2 years 3 months’ imprisonment imposed by the Magistrates Court for other offences. Niu J sentenced him to a total of 3 years’ imprisonment, made 1 year concurrent to his Magistrates Court sentence and suspended the last 12months of the sentence for a period of 2 years on conditions.
19. Prosecution suggests that an additional 12 months is added to the period of suspension ordered by Niu J. I consider the suspension and conditions applied by Niu J sufficient and make no further order to disturb those orders for the purposes of this sentencing.

Result

20. The Defendant is convicted of:
    1. Serious housebreaking, and sentenced to 3 years’ imprisonment; and
    2. Theft, and sentenced to 2 years’ imprisonment to be served concurrently with (a).
21. To give effect to the totality principle, the head sentence here is to be served concurrently with the 3-year imprisonment sentence imposed by Niu J in CR 173,186, 191/2021 and the suspension of the last 12 months and conditions imposed in those proceedings are preserved.
22. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
    

P. Tupou KC
JUDGE

NUKU’ALOFA

26 August 2022

---

^[1] Unreported, CR 133/2016, 29 March, 2018, Cato J
^[2] Unreported, CR 133/2019, 5 September, 2019, Cato J
^[3] Prosecution submitted that had there been no delay in submission of this case, it would have been dealt with together those proceedings.