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R v Kaufusi [2022] TOSC 89; CR 62 & 63 of 2022 (14 October 2022)

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


CR 62 & 63 of 2022


REX
-v-
[1] HATENI KAUFUSI
[2] KULIKEFU VANISI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
The First Defendant in person
Mr S. Tu’utafaiva for the Second Defendant
Date: 14 October 2022


The charges

  1. On 30 June 2022, the First Defendant (“Hateni”) pleaded guilty to:
  2. On 30 June 2022, the Second Defendant (“Kulikefu”) pleaded not guilty to abetment to theft, contrary to ss 8, 143(a) and 145(b) of the Act. On 29 August 2022, the day of his trial, he changed his plea to guilty.

The offending

  1. On 2 January 2022, the Complainant was at her residence in Halaleva. At around 6pm, she went outside to her vehicle. There she saw a taxi reversed and parked directly in front of the entrance to her residence. When the Complainant returned into her house, she could hear people conversing in Tongan from her neighbour’s house even though her neighbour is a Chinese national. That made her suspicious. So, the Complainant walked over and stood beside a water tank outside the residence. She saw a man with tattoos on the left side of his face bending over her fence from her neighbour’s residence to grab tools. The Complainant yelled out to her husband that there was a thief. The man hurriedly gathered the tools and ran to the taxi which then sped off from the scene. The Complainant identified the registration plate of the vehicle, contacted the police and lodged a complaint.
  2. The Complainant identified the items stolen from her tool shed as having an estimated value of $11,840.
  3. The Police traced the vehicle registration as belonging to Kulikefu. On the day of the offending, he had been drinking alcohol with Hateni at Fasi. The two drove to Kahana Lagoon Resort for Hateni to buy cigarettes. Kulikefu saw Hateni running back from the Complainant’s residence holding a bag. He also heard a female calling out. Hateni got into the car with the bag. Kulikefu suspected that the bag contained stolen items but decided to drive off. He dropped Hateni with the bag at Pili and returned home.
  4. Kulikefu was arrested and taken in for questioning. On 7 January 2022, he informed the Police that it was Hateni who stole the tools.
  5. After his subsequent arrest, on 23 January 2022, Hateni admitted to the offending. He also told the Police that the stolen goods were taken to Ha’akame and sold to one Viliami Tu’ikupulau for $200.
  6. On 24 January 2022, the Police conducted a search of Viliami’s residence pursuant to warrant where they recovered most of the stolen items.

Hateni Kaufusi

Crown’s submissions

  1. The Crown submits the following as aggravating features of Hateni’s offending:
  2. This offending occurred within the suspension period in CR108/2021.
  3. The Crown submits that the only mitigating feature is Hateni’s guilty plea.
  4. The Crown referred to the following comparable sentences:
“[8] I take the offence of serious housebreaking as the lead offence in the circumstances of this case. Housebreaking is a very common but also very serious offence in Tonga and is often a precursor for violent offending. The Courts have an obligation to protect persons from being victims of crime in their own homes and deterrence and the protection of society are principal sentencing considerations in cases of this kind”.
(b) Kalolaine Fainga’a (CR 19/2021)[1] – the Defendant pleaded guilty to serious housebreaking and theft of electronic goods valued at $12,095. A starting point of 2 ½ years was set for the housebreaking and 2 years for the theft, concurrent. Six months was deducted for mitigation with the final 8 months suspended for 2 years on conditions. The Court remarked:
“[18] 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.”
(c) Holiti Sanft (CR 197/21) – the Defendant pleaded guilty to theft of property valued at $4,860. A starting point was set for the housebreaking of 2 ½ years from which 10 months was deducted for mitigation. For the theft, the Defendant was sentenced to 10 months imprisonment, concurrent. The final 6 months of the sentence was suspended for 2 years on conditions.
(d) Amini Latu (CR47/2019) – the Defendant was sentenced to 2 years and 3 months imprisonment for serious housebreaking, and 2 years for theft to be served concurrently.
  1. Here, the Crown submits the following sentencing formulation:

Presentence report

  1. Hateni is 35 years of age. He was born and raised in Te’ekiu. He is the youngest of seven children. Growing up, he feared his father’s violent discipline. His father has since passed away and his siblings reside overseas.
  2. When his family migrated to New Zealand, Hateni felt independent and became rebellious. He dropped out of secondary education due to peer pressure. He completed training in specific driving skills for employment purposes. He joined a gang called “True Blue” where he became involved with alcohol, drugs and crime.
  3. In 2009, Hateni married and had three children. He ended up being convicted of manslaughter. In 2017, he was deported to Tonga after serving time. His wife and children have remained in New Zealand.
  4. Hateni has suffered from addiction to drugs and alcohol. He completed an alcohol and drugs awareness course in 2021.
  5. He is unemployed and depends on remittances from relatives in New Zealand.
  6. Despite initially denying the serious housebreaking, Hateni admitted to the probation officer that he and Kulikefu premediated the offending and that he received money from selling the stolen goods which was intended for drugs and food. He is said to have taken responsibility for the crimes committed. He is reported to be remorseful and wants to change his life for the better but does not know how. He started attending religious programs conducted by Rev. Semisi Kava while in prison and has expressed interest in continuing. Rev. Kava described his initial assessment of Hateni’s attitude, behaviour and discipline as “bad” but indicated that he was willing to work with Hateni towards his rehabilitation.
  7. The probation officer opined that Hateni’s pattern of criminal behaviour places him at a high risk of re-offending. He recommends that during any custodial sentence, Hateni undertake further counselling courses for his alcohol and drug addictions with Rev. Kava.

Starting points

  1. The maximum statutory penalty for serious housebreaking is 10 years imprisonment, and 7 years for theft (of items with a value exceeding $10,000).
  2. I echo the approach taken by the Courts to offending of this nature as recited in the Crown’s submissions above. Due to his very poor criminal history over the last 20 odd years, including multiple convictions for similar offending, it is clear that the instant offending is not an uncharacteristic aberration; rather, Hateni has manifested a continuing disobedience to the law. In that case, the sentencing objectives of retribution, deterrence and protection of society all indicate that a more severe penalty is warranted: R v Tapueluelu [2021] TOSC 140 at [19].
  3. Having regard to the seriousness of the offending, the statutory maximum penalties, the comparable sentences and the principles referred to above, I set starting points of 3 ½ years for the serious housebreaking and, because most of the stolen goods have been recovered, 2 years for the theft, to be served concurrently.

Mitigation

  1. For his early guilty plea, I reduce the starting points by 8 months and 6 months respectively, resulting in sentences of 2 years and 10 months (or 34 months) for the serious housebreaking and 18 months for the theft.

CR 108/18

  1. Section 24(3) of the Criminal Offences Act governs suspended sentences. It provides, relevantly:
(c) In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence.
...
(e) In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year.
  1. Hateni was released from prison on his partially suspended sentence in proceeding CR 108/18 on 3 November 2020. As the instant offending was committed during the 2 year suspension period ordered in that proceeding, ss 24(3)(c) is engaged.
  2. There being no special circumstances[2] to enliven subsection (5), I order that the suspension of that sentence be rescinded, and the balance of the term of imprisonment of 2 years be activated, to be added to the above sentence for this proceeding.

Suspension

  1. Application of the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 produce a mixed result. Hateni is not particularly young and he has a very poor criminal record. When this latest offending, which clearly involved some premeditation, is added to that record, it is clear that he has become a menace to society. His recidivism in the face of several previous suspended sentences is also a strong indicator that any further suspension of the instant sentences is unlikely to be taken seriously by him as an opportunity for rehabilitation. Against that, Hateni cooperated with the authorities and pleaded guilty early. His professed motivation for the offending being to obtain money to feed his body and his drug addiction may also be seen as some very slight diminution in culpability.
  2. However, in light of his expressed remorse and stated desire to continue with further rehabilitation work with Rev. Kava, I am prepared to offer Hateni what is likely to be his last opportunity for any suspension of a sentence as not only an incentive for rehabilitation but a further deterrent from reoffending.
  3. In all the circumstances, I will order that the final 12 months of the aggregate sentence of 4 years and 10 months (or 58 months) imprisonment be suspended for a period of 2 years on the conditions set out below.

Kulikefu Vanisi

Crown’s submissions

  1. The Crown submits the following as aggravating features of Kulikefu’s offending:
  2. Kulikefu has a number of previous convictions for drunkenness in 2003 and 2004 and again in 2019 and one conviction in 2005 for bodily harm.
  3. The Crown submits that the only mitigating feature in Kulikefu’s case is his belated guilty plea.
  4. The Crown proposes a starting point of 1 year imprisonment, reduced by 4 months for his guilty plea and the lesser role he played in the offending, with the resulting sentence of 8 months imprisonment only being partly suspended.

No pre-sentence report

  1. Upon his rearraignment, Kulikefu was directed to attend the probation office within 48 hours to arrange for the preparation of his presentence report. On 23 September 2022, the probation office advised that Kulikefu failed to do so. As a result, a pre-sentence report has not been able to be filed.

Defence submissions

  1. Mr Tu’utafaiva, who appears for Kulikefu, filed submissions which may be summarised as follows.
  2. On 22 August 2022, Kulikefu sought advice from Mr Tu'utafaiva’s office. On his instructions, Kulikefu did not expect Hateni to steal from the Complainant’s place until he saw him come running to the car and heard the female voice. Nonetheless, it is conceded that Kulikefu had no defence to the abetment charge.
  3. Kulikefu is 54 years of age and married with three children. His wife and children, who were all born in the United States continue to reside there. In 1992, Kulikefu was deported after serving five years imprisonment for assault and a firearm related charge. He resides at his family’s home in Fasi. His father is deceased and his mother resides in America. He is the second of three children, of whom, the eldest resides in America and the youngest resides with him. He earns income from driving his own car as a taxi. Kulikefu drove for Lord Fusitu’a when he was still in Parliament.
  4. Mr Tu'utafaiva noted Kulikefu’s cooperation with the police and asserted that since his return to Tonga in 1992, he has only been convicted for drunkenness.
  5. Mr Tu'utafaiva agrees that the Crown’s submitted sentence of 8 months imprisonment is reasonable but says that it should be fully suspended.

Starting point

  1. Based on the high degree of consensus between the parties, I agree that the appropriate starting point is 12 months imprisonment.

Mitigation

  1. However, I consider that for Kulikefu’s late plea and relevantly good record a discount of only three months should be applied.

Suspension

  1. The only real issue then is whether the resulting sentence of 9 months’ imprisonment should be fully or only partially suspended.
  2. Application of the considerations discussed in Mo’unga, ibid, in Kulikefu’s case also produce a mixed result. He is not young. While he has previous criminal convictions, none of them are property related and most are quite old. I am prepared to accept his version that he did not know in advance of Hateni’s plan to commit the theft and therefore, in Kulikefu’s case, there was no premeditation. It follows that his role in the offending by driving Hateni to his house was relatively minor. Kulikefu fully cooperated with the authorities and directly assisted in Hateni’s arrest. I am confident that he is likely to take the benefit of a suspended sentence as an incentive and deterrent against any future offending.
  3. Further, in Valikoula v R [2021] TOCA 5 and Kusitafu v Rex [2010] TOCA 9, the Court of Appeal reiterated the injunction in Mo’unga that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary. While such circumstances clearly existed in Hateni’s case, in my view, the circumstances in Kulikefu’s case do not render imprisonment necessary.

Result

  1. Hateni Kaufusi is convicted of:
  2. The suspension in proceeding CR 108 of 2021 is rescinded and the unserved portion of that sentence of 2 years is added to the above head sentence making an aggregate sentence of 4 years and 10 months (or 58 months) imprisonment.
  3. The final twelve months of that aggregate sentence is to be suspended for a period of 2 years from the date Hateni is released from prison, on condition that during the said period of suspension, he is to:
  4. Kulikefu Vanisi is convicted of abetment to theft and sentenced to 9 months imprisonment.
  5. That sentence is to be fully suspended for a period of 12 months on conditions that during the said period of suspension, Kulikefu is to:
  6. Both Defendants are advised that failure to comply with any of the above conditions may result in the suspension being rescinded in which case the defaulting Defendant will be required to serve the balance of his sentence.

NUKU’ALOFA
M. H. Whitten KC
14 October 2022
LORD CHIEF JUSTICE

[1] [2022] TOSC 64
[2] Such as where the subsequent offence is relatively trivial: Attorney General v Penisimani Angilau (AC 31 of 2021, 23 May 2022 at [25].

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