R v Vakalahi [2022] TOSC 87; CR 120 of 2021 (3 October 2022)

IN THE SUPREME COURT OF TONG

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 120/2021

REX

-v-

PITA VAKALAHI

SENTENCING REMARKS

Before: Justice P. Tupou KC

Appearances: Mr. J. Fifita for the Prosecution

Mr. Tu’utafaiva for the Defendant

Date: 3 October, 2022

The proceedings

1. On 4 April 2022, the defendant was found guilty of demanding money as an inducement to refrain from doing an act in the execution of his duty as a member of the Tonga Police contrary to s.164 (2) (a) (i) and (b) of the Tonga Police Act.

The offending

2. On or about 26 October, 2019, a Sinai Lefai Mafile’o drove into the fence of the Teacher’s Training School at Pahu. The defendant and another police officer attended the site of the accident and took her to the central police station. She was positively tested for alcohol and was kept in custody for the night.
3. The next morning, the defendant interviewed Ms. Mafile’o and during a “smoke” break she asked him if her case would go to court. The defendant said that it was but there was a way for her to avoid it. He said he would help if she paid him $540 for the drunk driving and $100 for driving without a license.
4. She agreed and was then given two “tickets” for drunk driving and driving without a licence, she recalled, that one ticket was pink and the other was yellow, both without a court date recorded on it. The defendant wrote his phone number on the “ticket”. She told him that when she got the money she would pay him and return the “tickets”.
5. The payment was delayed as Ms. Mafile’o was fixing the damaged fence. From 28 October, 2019 to 6 November, 2019, Ms. Mafile’o and the defendant were in constant contact. Over those 10 days, Ms. Mafile’o had sent the defendant 75 text messages and vice versa 36 texts. Those exchanges were about the delay in Ms. Mafile’o paying the money paid to the defendant.
6. The defendant challenged the charges at trial on the basis that Ms. Mafile’o was an accomplice and therefore her evidence required corroboration, and secondly that he did charge Ms. Mafile’o and therefore had not “refrained” from exercising his duties.
7. The Court rejected those defences and found that Ms. Mafile’o was not an accomplice^[1] and that the defendant had held onto the files instead of forwarding it to the prosecution division for the charges to be formalised. Niu J rejected his claim that he was too busy with other cases because the telephone records in evidence showed he was in constant contact with Ms. Mafile’o during the relevant period.
   1. Crown’s submissions
8. The Crown submitted the following as aggravating factors:
   1. The defendant was serving as a member of the Tonga Police, and his actions betrayed the trust conferred to him by the Ministry;
   2. His actions undermined the enforcement of law and perverted the court of justice;
   100. His action sparked reputational harm to the Tonga Police;
   4. His actions have breached the trust of the general public in the Tonga Police.
9. The sole mitigating factor in the defendant’s favour was the lack of any previous convictions.
10. The Crown referred to the following comparable sentences:
    1. Rex v Alalea CR 11/2020- the defendant in that case had bribed a fellow police officer with $2,000 to retrieve drugs from the Police exhibit storage for a friend of his. He was charged for bribing a police officer under s.165 (1) of the Tonga Police Act. He pleaded guilty. The court said that where the starting point for ordinary bribery cases attracted a starting point of 2 years, a starting point of 4 years was set in this case because of the nature of the case. A period of 12 months was deducted for the early guilty plea, previous good record, expressions of remorse and lighter level of culpability given he was acting as a middleman. He was sentenced to 3 years’ imprisonment with the final 12 months suspended.
    2. R v Patison [2003] NSWCCA 171, – the respondent had pleaded guilty to a range of offences including soliciting of bribes in the amounts of $10,000 and $15,000 contrary of s.200(1) of the Police Service Act 1900 carrying a maximum penalty of 7 years’ imprisonment or a fine of $22,000 or both. The case involved the execution of a search warrant in relation to possession of prohibited drugs leading to locating a motor vehicle. The vehicle was searched which was found to contain small amounts of cannabis and related drug equipment. The items were seized and the owner was arrested. The respondent said he would confiscate the vehicle and solicited $10,000 in return to avoid confiscation. He also provided the respondent with information which would assist him to “get out of” the charges in court. The Judge opined,
       • (a) “To act in the manner in which the prisoner acted constitutes a complete abdication of his responsibilities and the requirements to which I have referred, and is a betrayal of the trust placed in him. It also tends to bring the whole Police Force into disrepute and makes it more difficult for honest officers to perform their functions. Bribery in particular is always to be regarded as an offence which strikes at the heart of the justice system and must be severely punished whenever it is detected: R v Pangallo (1991) 56 A Crim R 441 at 443, and likewise any other act done with intent to pervert the course of justice.”.
       • (b) The respondent was sentenced to 3 years’ imprisonment.
11. In response to the Pre-sentencing report filed on 5 May, 2022, the Crown submitted that I should not give much consideration to the defendant’s belated remorse and emphasis on his child with disabilities for mitigation. He had challenged the charges at trial and now only after conviction, has no choice but to express remorse and that he should have minded his child’s predicament before committing this offence.
12. The Crown proposes a starting point of 4 years with a deduction of 6 months in mitigation. It was submitted that the defendant is entitled under the guidelines provided in Mo’unga v E [1998] TLR 154 for suspension and proposed that the final 6 months to be suspended for a period of 2 years on conditions.

Defendant’s Submissions

13. Mr. Tu’utafaiva accepted the Crown’s submissions as reasonable with the exception of the starting point. He submitted that the starting point should be 2.5 years. He sought to distinguish the two cases on which the Prosecution relied. He argued that the two aggravating factors in Alalea are not present in this case and that in Patison, he argued that case involved a police officer soliciting of $10,000 and $15,000 and that the defendant in that case was found to have engaged in a persistent and organized course of police corruption for almost a whole year, whereas the present case involved the one incident of demanding a bribe.

Pre-sentence Report

14. The Defendant was 26 years old at the time of the offence. He has 6 siblings, the youngest from his mother’s second marriage. He received a good education at Liahona High School, having completed 7^th in 2011.
15. He married in 2015 and has three children who are 5, 4 and 3 years old. His eldest child is said to be suffering from a form of disability prohibiting her from walking and running. He and his wife had obtained a plot of land and have built a family home on it.
16. He was enrolled with the Tonga Police in 2016 and graduated as overall runner up in his recruitment group and best student in classroom activities. He is currently enrolled in an online program with BYU studying law. He is without work and is looking after the children while his wife is at work.
17. His wife wrote a letter to say that her husband is a good family man who does not drink or smoke and stays at home. She says that their eldest daughter suffers from a disability that she is not able to walk or run yet. The defendant is looking after her and exercises with her. The town officer said that the defendant is a good person and does not drink or cause any problems in the village. He participates in the village “fono” and church programs and counsels the youth on avoiding alcohol and causing trouble in the village. The Ward Bishop of Ha’ateiho 2 said that the defendant is a very close friend and he is very proud of him. He spoke highly of the defendant’s character, their brotherly bond, his commitment to attending church every Sunday and to reading the bible every day.
18. The defendant told the Probation officer that in the workplace the temptations to do wrong is always present and it would come down to the individual’s judgment and despite having been successfully recruited the temptations are there and he fell for it in this “small incident”. He accepts his actions now and sends his apologies to the Tonga Police and is remorseful for his actions.

Starting point

19. S.164 (3) of the Act provides for a maximum penalty of a fine not exceeding $25,000, or imprisonment for a period not exceeding 7 years, or both.
20. In the Criminal Offences Act^[1], bribery of a government servant attracts a maximum penalty of 3 years’ imprisonment. The Constitution^[2] provides that any elected representative who if proved to the satisfaction of the Assembly used threats or bribes for the purpose of persuading any person to vote for him shall be unseated by the Assembly. A similar provision is expressed in the Legislative Assembly Act^[3], using bribery for the purposes of obtaining votes or influencing electors in their votes, if found guilty, members will lose their seat. In the Electoral Act^[4] if a candidate is found guilty he will lose his seat, a person who is not a candidate, if found guilty of bribery will be liable to a fine not exceeding $2,000 or imprisonment not exceeding 3 years or both. Under the Manufacture of Intoxicating Liquor Act^[5], any person who shall offer a police officer any bribe or endeavour in any way to induce him to abstain from so exercising his powers under section 7 of the Act is guilty of an offence punishable by imprisonment not exceeding 2 years or a fine not exceeding $500 or both. In the Anti-Corruption Commissioner Act^[6], bribery of a witness attracts a penalty of imprisonment not exceeding 3 years or a fine not exceeding $10,000 or both and bribery of an officer of the Commissioner will be liable upon conviction to a maximum of 3 years imprisonment and a fine not exceeding $15,000 or both.
21. Parliament, in more than doubling the maximum penalty for offences of bribery under the Tonga Police Act have intentionally raised the level of seriousness for those offences to the highest across legislated forms of bribery. Accordingly, I must bear that in mind in this case.
22. In Alalea LCJ Whitten QC referred to number of cases including Patison^[7] and;
    1. R v O’Mally [2005] NSWCCA 166- where, a senior constable of police solicited a favour from a young driver he stopped for speeding. He got the driver to excavate a swimming pool for him in lieu of letting him go free. He said to the driver, “If you scratch my back, I’ll scratch yours” and “Call (it) what you want. It’s bribery and corruption, but we are doing each other a favour and I am very old fashioned.” The excavation job was valued at $1,171.50. The constable pleaded guilty. He had no prior convictions, was well regarded within the police force and received commendation for police work. He was sentenced to two years’ imprisonment. He unsuccessfully appealed his sentence.

LCJ Whitten QC, further recited the general but relevant statements made about this type of offending in R v O’Mally of the observations by McInerney J in R v Nomchong^[8] where he said;

“The police are in a position of authority and trust in the community and the public depends on them to uphold the rule of law. The crime of bribery by a police officer is one that strikes at the very heart of the justice system”

As well as the observation made by Lee J in R v Pangallo^[9] stating;

“The crime of bribery by a police officer therefore must be severely punished whenever detected. The police are in constant contact with members of the public and the opportunity for bribery is always great. Those circumstances themselves mean that the element of general deterrence is always a matter that must be kept very much in the forefront of the mind of a sentencing judge when a police officer is charged with an offence such as this. It is important to deter other officers who may be inclined to similar conduct.”

23. In my view, all of the above principles are sufficiently summarised in A-G’s Ref (No.30 of 2010)[2010] EWCA Crim 2261[2009] EWCA Crim 2221; , [2011] 1 Cr App R (S) 106 (624) as follows (at[64]) as cited in Blackstone’s Criminal Practice 2022^[10] where the Court said:
    • (a) “First, punishment and deterrence are always important elements in these cases; not only must police officers be deterred from misconduct, but also the public must see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service. Secondly, an incentive...inevitably increases the seriousness of the offence. Third, misconduct, which encourages or permits criminals to behave in the belief that they will be kept informed of areas to avoid in connection with their criminal activities, or of those who might be informing on the police also increases its gravity. That is reflected in the observation of the learned judge who commented that [a criminal associate of the officer] had boasted that it was ‘like having his own police station at the end of a phone’. Fourth, any misconduct that impact on police operations moves the offence into a different category of gravity.”
24. I agree with LCJ Whitten QC in Alalea, that it is fortunate cases like this are rare. According to the Crown this is the first case to be prosecuted under s.164 of the said Act, a commendable achievement that should be maintained.
25. The Tonga Police Act state the relevant statutory functions of the Tonga Police as; “..to maintain law and order; protect life and property; prevent and detect crime; uphold the laws of Tonga and undertake the service and execution of court processes......”^[11] .
26. All police officers upon taking office swear an oath of allegiance and to keep righteously and perfectly the Constitution of Tonga and all laws and regulations which are currently or to be enforced in the future as matter of police and conduct to the Tonga Police.
27. When they conduct themselves as the defendant here and Alalea they are abdicating their duties and are in breach of their oath of office.

Considerations

28. Having regard to the level of seriousness of the offence reflected in the maximum statutory penalty for this type of offending, the comparable sentences and principles of sentencing set out in the above authorities and the defendant’s submissions, I consider that the first three categories described in A-G Ref. apply here.
29. Firstly, I take account of the fact that the defendant was a police officer at the time of the offence, the need for the public to see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service and set a starting point of 3 years. I do not accept the defendant’s description of his conduct here as a “small incident” for the above reasons. He simply should have known better.
30. Secondly, I consider the gravity of the bribery here and accept the defendant’s submission that it is not as grotesque as the officer’s conduct in Alalea. I add a period of 6 months for the bribery (or incentive in the language of A-G Ref ) and for the continuing misconduct^[12] of encouraging and permitting Ms. Mafile’o^[13] to believe that if she paid the money she would not go to court for her offending - resulting in a total starting point of 3 years imprisonment and 6 months.

Mitigation

31. By way of mitigation I take into account the defendant’s good record, his expression of remorse albeit late, the loss of his job, the fact he did not receive any of the monies demanded, that this was a single incident of bribery and did not impact any police operation. For those reasons, I reduce the starting point by 12 months.

Suspension

32. In applying the guiding principles in Mo’unga v R [1998] TLR 154; the defendant is young, he has expressed remorse albeit late and has apologized to the Tonga Police via the pre-sentencing report. I have considered the letter from his wife, his family situation and the inevitable difficulties they will experience, the positive impact he has on the youth of his village and church described by the town officer and ward bishop. The loss of his job means there is no opportunity of re-offending under the same circumstances. For those reasons, I am persuaded that he will take the opportunity offered by a partially suspended sentence to rehabilitate himself and suspend 12 months of his sentence for 2 years on conditions.

Result

33. The defendant is sentenced to 2 years and 6 months’ imprisonment with the final 12 months of the said sentence suspended on the following conditions;
    1. Not to commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the Probation Office within 48 hours of his release;
    4. Reside where directed by his Probation Officer.
34. 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

3 October, 2022

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^[1] S.51
^[2] Clause 66
^[3] S.9
^[4] S.21(4) and (5)
^[5] S.3
^[6] S. 65 and 71
^[7] Referred to by the Crown above
^[8] Unreported, NSWCCA, 10 April 1997)
^[9] (1991) 56 A Crim R 441
^[10] Part B, Section B15.32
^[11] S.8 of the Tonga Police Act
^[12] 3^rd element in A-G Ref
^[13] over a period of 10 days by way of texts messages - totaling 111 messages between them