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R v 'Ekuasi [2022] TOSC 77; CR 3 of 2022 (1 September 2022)

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


CR 03 of 2022


REX
-v-
KOLONIA L. ‘EKUASI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms ‘A. ‘Aholelei for the Prosecution
The Defendant in person
Date: 1 September 2022


The charges

  1. On 7 April 2022, the Defendant pleaded not guilty to obtaining $6,976.24 by false pretences contrary to s. 164 of the Criminal Offences Act; and two counts of forgery contrary to s. 170 in the form of creating false receipts for $2,000 and $4,100 respectively.
  2. On 21 July 2022, the day of her trial, the Defendant changed her plea to guilty on all counts.

The offending

  1. The Complainant resides in the USA. She and the Defendant are half-sisters, with the same mother.
  2. On or about April 2021, the Complainant and her mother were organising the wedding of her sister, Luana Masima, in Tonga in December 2021. The Complainant was also in charge of paying for a venue.
  3. On 15 April 2021, the Defendant contacted her mother, ‘Olita Mafi, and told her that one of her uncles worked at the Vakaloa Beach Resort and could give them a good price of $9,100 which included venue, food and decorations upon payment of a deposit of $2,000. ‘Olita relayed the message to the Complainant. The Complainant agreed, and on the same day, she sent the Defendant $2,698.74, told the Defendant she could keep the balance, and asked the Defendant for a receipt from Vakaloa upon making the deposit.
  4. However, the Defendant never paid the money to Vakaloa. In fact, she never made a booking with Vakaloa. Rather, upon receiving the money from the Complainant, the Defendant spent it on herself.
  5. On 16 April 2021, the Defendant sent the Complainant a photo of a fake receipt for $2,000 and told the Complainant that it was the receipt for the deposit from Vakaloa. The receipt showed that it was a payment received from the Defendant for $2,000 described as a deposit for a wedding venue and that there was a remaining balance owing of $7,100.
  6. On 28 April 2021, the Defendant messaged the Complainant and told her that her mother had asked her to add 20 pigs to the venue bill which took the overall cost to $12,300 and that, as a consequence, an additional $4,100 deposit was required. That was also untrue. The Complainant checked with her mother who confirmed what the Defendant had said.
  7. Between 28 April and 11 May 2021, the Complainant tried to contact the owner of Vakaloa on Facebook to see how preparations for the wedding were going but to no avail.
  8. The Complainant told the Defendant of her inability to contact Vakaloa directly. The Defendant told her that the owner’s Facebook page had been hacked. The Defendant then told the Complainant to email the owner direct and provided the Complainant with an email address. Unbeknownst to the Complainant, the email address was for an account created by the Defendant and not in any way associated with the Vakaloa Beach Resort.
  9. The Complainant sent an email to that address and asked whether the Defendant had made the earlier payment and whether she could make a direct payment of the $4,100. The Defendant, posing as the owner of Vakaloa, replied to the Complainant that as the discount rate was through the Defendant’s uncle, it was best to give the money to the Defendant and that they were very busy. In trusting what the purported owner of Vakaloa had told her, on 12 May 2021, the Complainant sent a further $4,227.25 to the Defendant and told the Defendant to keep the balance of the money after payment of the $4,100 deposit. The Complainant also asked the Defendant to send her a photo of the receipt.
  10. On 13 May 2021, the Defendant forged another fake receipt for $4,100 which was similar to the first and sent it to the Complainant.
  11. On or about 17 May 2021, the Complainant found out from other Tongan contacts that the Defendant did not make any payment to Vakaloa. She then tried to contact the Defendant. However, the Defendant had by then disconnected her phone and deactivated her Facebook account.
  12. On 25 May 2021, the Complainant managed to contact a family friend by the name of Sergeant Salt of the Tonga Police and asked him to make a complaint on her behalf.
  13. On 17 June 2021, Sergeant Salt did so. Following a long investigation, Police arrested the Defendant on 18 October 2021. She cooperated with the police and admitted to the offending when questioned.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown referred to the following comparable sentences:
“Imprisonment for a purely property offence is not appropriate, unless there are unusual circumstances that render imprisonment necessary.”
(b) Heleni Vi (CR 28/2014) – the Defendant pleaded guilty to imprisonment and forgery involving a total of $8,671. The Defendant was an employee of Westpac Bank at the time and had transferred money from customers’ accounts to her own. Cato J sentenced the Defendant to 12 months for the embezzlement and 9 months for the forgery. Both sentences were fully suspended.
(c) ‘Umukisia Tu’iono (CR119/2012) – the Defendant pleaded guilty to one count of forgery and three counts of falsification of accounts. The amount there totaled $4,000. That Defendant was also an employee and there were other staff involved in the offending. Cato J set a starting point of 3 years, reduced to 2 for an early guilty plea, He also considered that the Defendant had good prospects for rehabilitation. The final sentence for the forgery and false accounting was 2 years imprisonment concurrent, fully suspended for three years, on conditions.
(d) Kimela Aso (CR107/2012) – the Defendant pleaded guilty to four counts to forgery which involved invoices and through which he stole, or failed to account for, $4,800. He was an employee of Cowley Bakery. Cato J set a starting point of 2 years each of the forgery counts. That was reduced by 12 months for mitigation and the resulting sentence was fully suspended.
(e) Hona Maria Ika (CR187/2020) – the 27-year-old Defendant made a number of unauthorised withdrawals, totaling $18,000, from a bank customer’s internet banking account over a period of 3 months. She was subsequently charged with theft. In that case, it was observed that:
“[18] ... whilst the amount in question is not at the higher end of the range of comparable sentences, it is still a substantial sum. That factor and the nature and duration of the offending makes this a serious crime. Not only did the Defendant breach her obligation of trust towards the bank, she sought to take advantage of a customer of the bank who lives overseas. The manner in which the offending was executed also shows a significant degree of calculation, planning, and connivance.”

A starting point of two years was set, reduced by six months for the early guilty plea and by a further six months because the defendant made full restitution. The resulting sentence was partially suspended on conditions.

(f) ‘Anaseini Kolomalu (CR115/2011) – the Defendant pleaded guilty to embezzlement and theft of a total of $21,051.20. She was an employee of Courts Tonga Ltd. He was sentenced 18 months’ imprisonment, fully suspended for two years on conditions including 120 hours community works.
(g) ‘Anasitasisi To’a (CR07/2013) – the Defendant was sentenced for embezzlement, falsification of accounts and theft involving a total amount of $25,208.30 to two years imprisonment with the final nine months suspended.
(h) Salote Latu (CR05/2013) – the Defendant was sentenced for embezzlement, falsification of accounts and theft of just over $15,000 to two years imprisonment with the final year suspended.
(i) Manuele (CR141/2015) – the Defendant pleaded guilty to six counts of embezzlement totaling more than $12,000. A starting point was set of 18 months’ imprisonment reduced by nine months for mitigation and the balance was fully suspended on conditions including 60 hours community services.
  1. Here, the Crown submits the following sentencing formulation:
  2. On the question of suspension, the Crown referred to the decision in R v To’aho [2021] TOSC 107 at [30]. In relation to the Mo’unga considerations, the Crown submitted that the Defendant is not young. Against that, she has a previous good record, she co-operated with the authorities, and she eventually pleaded guilty.
  3. The Crown distinguished the offending here from a few the comparable sentences referred to above on the basis that those cases involved more ‘calculated, protracted and systemic offending’. They also involved multiple instances of breach of trust including as between a bank and business employees ‘pilfering accounts’. Here, by contrast, the Crown says that the Defendant’s offending was ‘relatively unsophisticated and short lived’. For those reasons, the Crown submitted that the resulting sentences should be fully suspended on conditions including 80 hours of community service.

Presentence report

  1. The presentence report provided the following information.
  2. The Defendant is 32 years of age. When she was five months old, her mother left her in the care of her paternal grandparents and travelled to Hawai’i where she married and had a family of her own. The Defendant’s father did the same.
  3. Accordingly, the Defendant considered herself a stranger to both families including her half-siblings on her father’s side and those on her mother’s side. Her mother always checked on her and helped her out financially through her schooling and daily expenses. She described her stepmother on the other hand as someone she did not like at all. The Defendant left school due to peer pressure and did not like the academic competitive attitude her half-sisters expressed towards her.
  4. She married in 2011 and divorced in 2014. She has since married again and told the Probation Officer that she ‘keeps in touch with her husband’ while he is in New Zealand participating in the seasonal program.
  5. The Defendant told the Probation Officer that while growing up she felt left out and always wondered what it would be like to have both parents raising her. She added that if she had been raised by her parents, maybe she wouldn’t have ended up in this trouble. She said that she is now looking after her aging grandmother with the help of her uncles.
  6. However, according to the Probation Officer, the Town Officer described the Defendant as having grown up in a good family but that she had chosen her own path to be a “troublemaker”. He said that she was loved by her father’s family and spoiled by her grandparents. She had a good upbringing but still felt inferior to her half-siblings and her stepmother. The Town Officer emphasised that the Defendant does not reside at Kanokupolu, that he hardly saw her in the village and that he did not know her whereabouts. He also said that the Defendant’s grandmother is being looked after by her own sons.
  7. In relation to the offending, the Defendant told the Probation Officer that she knew that it was her half-sister’s money and that she took advantage of it in the hope that she would be forgiven for it. The Defendant said she did not know she would end up being charged for it. She told the probation officer that she would start paying the money she owed her half-sister back through the Court. She also told the probation officer that she would provide receipts as a sign of remorse and regret for what she had done. However, as at the date of the report, no receipts had been provided.
  8. The probation officer assessed the Defendant as follows:
“... ingenious as she is, she has found many ways to defend herself about being left out by her biological parents. At first, she blamed everything at growing up without parents although she has the love of her paternal grandparents; a privilege that some people did not have but did grow up and accomplished so well in life. The Defendant challenges the setting of her life especially when it came to the offending factors. She tests the love and trust of her half-siblings to see if they truly love her. Unfortunately, she did it in the wrong way and thereby lost their trust and sense of believing which is very hard to change.”
  1. The officer also described the Defendant as believing she was “alone and no one cares”. Notwithstanding, the probation officer considered the Defendant to still be relatively young and that she has a chance of rehabilitation, particularly if she completes a Life Skills Course. On that basis, the probation officer recommended a partially suspended sentence.

Starting points

  1. Section 104 of the Criminal Offences Act provides a maximum penalty equivalent to theft, namely, 7 years imprisonment. The same applies for forgery under s. 171.
  2. Having regard to the caution stated in Mo’unga in relation to purely property offences, I consider that there are unusual circumstances in this case, namely, the level of premeditation and contrivance, and the fact that the offending was not just a single event but was orchestrated over a period of at least two months. For those reasons, I consider that imprisonment is necessary.
  3. Having regard to the seriousness of the offending, the comparable sentences referred to by the Crown, the fact that there has been no restitution made to date and the principles that have been referred to, I set the following starting points:

Mitigation

  1. For the Defendant’s late guilty plea and good previous record, I reduce those starting points by approximately 25%, resulting in the following sentences of imprisonment:

Partial cumulation

  1. The offending in counts 2 and 3, the forgery charges, facilitated the obtaining of the money by false pretenses in count 1. The Crown approached the overall offending as a continuing course of conduct thereby warranting concurrent sentences. However, in my view, given that the overall offending occurred over a few months and the Defendant employed quite sophisticated means including creating the false email account and address for the Vakaloa Resort, I consider that the two forgery charges should be seen as separate offending. For that reason, partial cumulation is warranted by adding two months from each of the sentences for counts 2 and 3 to the sentence for count 1, resulting in an aggregate head sentence of 18 months’ imprisonment. The balance of the sentences is to be served concurrently.

Suspension

  1. At 32 years of age, the Defendant is neither young nor old. However, I must say that her offending here, the circumstances in which it occurred, and the way it was explained by her to the Probation Officer, demonstrate a certain level of immaturity in her behavior towards her half-sister and her mother. It appears to also be indicative of some unresolved family issues from her childhood as observed by the Probation Officer.
  2. I take into account the Defendant’s belated guilty plea, no previous convictions, and her cooperation with the authorities. Her offer through the Probation Officer to make restitution would indicate a level of remorse, although I am ambivalent about that because she has not yet produced any evidence of restitution and she is also reported to be unemployed.
  3. Against suspension is the fact that this offending was clearly premeditated.
  4. However, because the offending occurred within or between family members and the Defendant has expressed remorse, I consider there to be some basis for believing that she may take advantage of a suspended sentence to rehabilitate herself.
  5. Therefore, I am prepared to accede to the Crown’s submission that the resulting sentence should be fully suspended on conditions.

Result

  1. The Defendant is convicted on:
  2. Two months of the sentences for each of counts 2 and 3 will be added to the sentence for Count 1 resulting in a total aggregate sentence of 18 months’ imprisonment.
  3. The balance of the sentences for counts 2 and 3 are to be served concurrently with the resulting sentence.
  4. The sentence of 18 months’ imprisonment is to be fully suspended for two years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
  5. 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 her term of imprisonment.



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

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