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R v Uasi [2023] TOSC 13; CR 104-105 of 2022 (14 February 2023)

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


CR 104-105 of 2022


REX


-v-


1. Alifeleti Uasi

2. Niviko Maea


SENTENCING REMARKS


Before: Justice P. Tupou KC

Appearances: Mrs. S. Eliesa for the Prosecution

Defendants in person


Date: 14 February, 2023


The Charge

  1. The accused persons were jointly charged for one count of serious housebreaking contrary to s. 173(1)(b) and (5) of the Criminal Offences Act and one count of theft contrary to s.(143(a) and 145 of the said Act.
  2. On 6 October 2022, the defendants pleaded guilty to both counts.

The Offending

  1. On 10 March 2022, the complainant, Mr. Qi Fang Liu, left his residence at Halaleva around 9am in the morning. Returning at 11am, he noticed that TOP$20,000 plus USD$20,000 (equivalent to TOP$48,971.51) was missing from his bedroom.
  2. Upon checking the CCTV footage in his home that day, he discovered that the accused persons had entered his house. He immediately lodged a complaint with the police.
  3. Sione Maea Tatu told the police that he recalled in March being at his home with the accused persons, Alifeleti Uasi (“Uasi”) and Niviko Maea (“Maea”) when the accused persons discussed robbing a shop.
  4. He recalled that around 2pm the next day, Maea and Uasi gave him money and he accompanied them to a shop at Ma’ufanga. They hired ‘Ofa Tauki’uvea’s (“’Ofa”) taxi.
  5. Their first stop was a US flea market opposite JJ video in town. Next stop was the Superfone Store and then an Indian Shop facing the A&A Retailer store in Pahu.
  6. On leaving the shop at Pahu, Maea and Uasi spotted a police vehicle and told ‘Ofa to stop. When the vehicle stopped, Maea and Uasi got off and ran. They left their shopping contained in 3 plastic bags in the taxi.
  7. The police took the 3 plastic bags and ‘Ofa agreed to call them if Maea and Uasi contacted him.
  8. That evening Maea and Uasi contacted ‘Ofa to pick them up from an area at Pahu. ‘Ofa took them to his house at Puke and asked them why the police were after them. They said they had broken into a Chinese Shop at Fanga to steal money.
  9. On 29 April, 2022, Uasi was in police custody for a different matter and was interviewed by the police. As a result, Maea was arrested and interviewed on 1 May 2022. They admitted the instant offending and cooperated with the police.

Crown’s submissions

  1. The Crown submitted that the aggravating factors were;
    1. the substantial amount of money involved;
    2. invasion of privacy;
    1. premeditated nature of the offending;
    1. loss of $68,971.51;
    2. breach of trust by Maea who was previously employed by the complainant;
    3. Uasi breached conditions of his suspended sentence for a prior offending.
  2. The Crown submitted the mitigating factors were;
    1. both defendant’s early guilty plea’
    2. their cooperation with the police;
    1. first related offence.
  3. The Crown referred to following comparable sentences, namely:
    1. R v Lancellot ‘Amanaki Takai Vailea – CR 189/2021 – Vailea pleaded guilty to 2 counts of serious housebreaking and theft. One count involved theft of goods valued at $20,100 and the second count involved theft of Tongan mats and a kava bowl worth $64,500. The defendant held previous convictions and was sentenced to 3 years imprisonment for each of the housebreaking charges and 3 concurrent years for each of the theft charges.
    2. R v Heuifanga Vea – CR 12/2018 – the defendant was convicted for embezzling $80,000 from her employer. She paid back $10,000 and was sentenced to 3 years and 3 months imprisonment with the final 9 months suspended on conditions.
    3. R v ‘Ana Moala Tu’itavuki and Malakai Tu’itavuki – CR 172-173/2019 – the Crown highlighted the cases LCJ Whitten QC referred to in that case such as;
      1. Misinale[1], where the defendant’s sentence of 3 years imprisonment was confirmed by the Court of Appeal with the last 12 months suspended for 2 years;
      2. Cocker[2], where the defendant was sentenced to 3 years imprisonment from a starting point of 4 years and 6 months for embezzling of $99,450 with the final 12 months suspended for 2 years on conditions;
      1. Pousini[3], where a starting point of 2 years was set and reduced in mitigation to 1 year and 5 months for embezzlement and money laundering to the total value of $73,276 from which she personally took for herself $34,400. She was a first time offender, a good student, came from a good and supportive family, cooperated with the police and freely admitted to her offending.
  4. The Crown suggests the following sentencing formulation;
    1. Count 1 (headcount) – a starting point of 3-4 years imprisonment;
    2. Count 2 – 1 year and 6 months imprisonment to be served concurrently to count 1;
    1. 12 months to be deducted from head sentence in view of the early guilty plea, cooperation with the police and first related offending resulting in a final sentence of 3 years with the final 18 months suspended on conditions; and
    1. To activate the suspended sentence in CR 53 of 2021 for Alifeleti Uasi, the first defendant.

Victim Impact Report

  1. No victim report was available for the purposes of this sentencing. I would urge that for the future, such a report is included.

Defendant’s Submissions

  1. Neither defendant filed any submissions in response to the Crown’s sentencing submissions.

Pre-sentence Report


Alifeleti Uasi


  1. No sentencing report was filed as a result of Uasi failing to turn up to the Probation Office when he was required to.

Niviko Maea

  1. Maea was 18 at the time of the offending. He is the 7th child in a family of 9 children. His parents separated when his father left to be with a partner. All of the 9 children remained with their mother at Halaleva. When Maea was in Form 1, his mother became very ill and he preferred to stay home to be with her.
  2. His sister, Mele Kata said that when their mother died, she and her husband took all of her siblings including Maea to her home in Niutoua. She said that Maea was quiet and kind. She was very surprised when she learnt of Maea’s involvement in this offending. She said that Maea elected to move back to their parents’ home at Halaleva where he began socializing with “untrustworthy people”. Mrs. Kata blames this move as the catalyst to his “illegal behavior”.
  3. Maea is in good health but unemployed. The report indicated peer pressure and association with persons with previous criminal activities as the “motivator” in Maea’s relevant activities. The lack of life and decision-making skills played a part in his involvement.
  4. Maea admitted his involvement in the offending and had apologized to the complainant when he was released on bail. He said he got $1,500 while the rest of the money went to Uasi.
  5. The Probation Officer concluded that Maea’s problem stem from a lack of parental support. He was very remorseful about his part in this offending and vowed that he would not repeat it. As a result, the officer recommended a partial or fully suspended sentence.

Starting point

  1. The maximum statutory penalty for serious housebreaking is imprisonment not exceeding 10 years and 7 years imprisonment for theft.
  2. Only one of the comparable cases referred to by the Crown related to the relevant offence of serious housebreaking here, i.e, R v Lancellot ‘Amanaki Takai Vailea – CR 189/2021[4]. The other two cases dealt with embezzlement and in my view irrelevant.
  3. Previous cases involving serious housebreaking and theft involving amounts up to $15,000 have generally warranted starting points of just under 4 years such as;
    1. Penisiliti Malafu (CR 113/16) – where the defendant was convicted after trial for serious housebreaking and theft of tongan goods worth $15,000. A starting point of 3 years and 6 months imprisonment was set. As there were no mitigating factors that was the final sentence. For the theft, the Defendant was sentenced to 2 years’ imprisonment to be served concurrently. The final 6 months of the head sentence was suspended on conditions.
    2. Kelikupa Maile (CR 133/19) – Maile was convicted after trial for serious housebreaking and theft of Tongan mats and other goods valued at $14,900. A starting point of 3 years and 9 months’ imprisonment was set for the serious housebreaking. After mitigation the final sentence was 3 years and 3 months’ imprisonment with the last 12 months suspended. For the theft, he was sentenced to 2½ years’ imprisonment to be served concurrently.
  4. In contrast cases involving amounts above the $15,000 threshold have warranted a starting point starting from 4 years upwards, such as;
    1. R v Akau [2021] TOSC 150 where the defendant broke into a store and stole goods valued at $21,044 whilst in custody. A starting point of 4 years and 6 months was set;
    2. R v Vaiangina [2022] TOSC 54 which involved serious housebreaking and theft of mats worth $22,800. For the seriousness of the offence, the amount involved and the defendant being a recidivism offender, a starting point of 5 years was set and increased by 1 year for the disrespect to the Monarch and targeting of the Royal Palace, resulting in a starting point of 6 years;
    1. R v Ealelei [2019] TOSC 10 where the amount involved was $34,000. LCJ Paulsen opined that;

“It is a distressingly common offence committed in the main by young men. It is a very serious problem in Tonga to which there must be a strong response.”

The starting point was 4 years and uplifted by 6 months for his recidivism and apparent lack of remorse.

  1. R v Mahe [2021] TOSC 30 where the value of goods amounted to $34,000 whereby Justice Langi adopted the starting point in ‘Ealelei, of 4 years and uplifted it by 1 year for the defendant’s previous convictions involving 3 separate counts of housebreaking and theft between 2018 -2019 ending up with a total starting point of 5 years.
  1. Having regard to the seriousness of the offence, the statutory maximum penalty, the amount of cash involved, breach of trust by Maea as a former employee of the complainant, the range of starting points in the comparable cases above, the need to protect the public and denounce this type of behaviour and deterrence and in consonance with LCJ Paulsen in ‘Ealelei that “there is a need for the courts to make a strong opposition to such offences” I find a starting point of 5 years appropriate for both Defendants.
  2. For the theft, I fix a starting point of 3 years in line with Vailea[5].

‘Alifeleti Uasi


  1. Uasi was sentenced to 18 months imprisonment for causing serious bodily harm in May, 2021. His sentence was fully suspended for a period of 2 years on conditions. In March, 2022 this offence was committed in breach of the conditions of that sentence. In August, 2022, he was sentenced to 2 weeks imprisonment for disorderly behaviour and unlawfully being on enclosed premises at night which was fully suspended for 6 months. Then on 18 October, 2022 he was sentenced to 2 weeks imprisonment for causing disturbance. The suspended sentence in August was activated.
  2. He appealed the sentence in CR 926 of 2022. On 8 February, 2023, as a result of concessions made by Prosecution, Uasi withdrew the appeal against his conviction and the parties agreed that the appropriate sentence was a fine. This morning, I allowed the appeal and cancelled the re-activation of the suspended sentence under CR 870-871 and fined him on that appeal an amount of $400 to be paid within 2 weeks or in default, 2 weeks imprisonment.
  3. The Crown submits that the suspension of the sentence in CR 53 of 2021 be rescinded and added onto the instant sentences. Relevantly,

Subsections 24 (3)(c) and (e) of the Criminal Offences Act provide:

“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. The suspended sentence in CR 53 of 2021 is rescinded and added to the instant sentence pursuant to s. 24 (3) (c) of the Criminal Offences Act.
  2. Serious housebreaking and theft of $68,971.51 is not a trivial offence and the defendant since the initial suspended sentence has clearly not taken the opportunity offered by his suspended sentence to rehabilitate himself. Further, he has been sentenced in the Magistrates Court for 3 other offences since.
  3. Nothing in the material before me reveals any special circumstances to release Uasi under s.24(3)(e) of the said Act.

Concurrent or Cumulative

  1. The test in R v ‘Asa [2020] TOSC 72 was summarized by Lord Chief Justice Whitten KC in R v Selupe [2021] TOSC 47 stating;
“first, whether the offences are so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent.”[6]
  1. And in Pearce v The Queen[7], McDonald v The Queen (1994) R 55CR 555 and Mill v The Queen ( 166 CLR 5CLR 59 at 62-63), relevant cautions to the sentencing court, were underlined, that:
“...... the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all". In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed.”
  1. Here, the instant offences are connected and should be regarded as one course of criminal activity and I make Count 2 concurrent to Count 1.
  2. In consideration of the totality principle, I accept that this would be the Defendants first incarceration and that full cumulation of all the sentences to be served would be a “crushing” first period of imprisonment for them. Therefore, with regard to Uasi, I consider it appropriate to order that only part of the suspended sentence in CR 53 be added to the head sentence here as detailed further below.

Mitigation

  1. For their early guilty plea, cooperation with the police and this being both their first related offence, I deduct 30 % from each count, resulting in the following sentences;

Count 1 - 3 years and 4 months imprisonment

Count 2 – 2 years imprisonment to be served concurrent to Count 1.

Suspension

Alifeleti Uasi

  1. Uasi at 20, has scored a list of previous convictions. Planning of the criminal activity and targeting the complainant was obvious, no doubt with Maea’s knowledge of the complainant’s property due to his previous employment there. He further demonstrated a total disregard of the Courts offer of an opportunity to rehabilitate and reform himself by fully suspending his sentence for a previous serious charge of serious bodily harm by committing this offence.
  2. No pre-sentencing report could be prepared for his benefit as he elected not to attend the Probation Office when he was required to. He has waived that benefit.
  3. However, I find his early guilty plea and cooperation with the authorities on the instant charges as a show of owning his conduct and taking responsibility for the instant offending. I note that the Crown has also proposed a partial suspension of his sentence.
  4. In ‘Ealelei, where the accused had received prior suspensions but continued to offend. I reverberate the hope expressed by LCJ Paulsen in saying:

“I have decided that given his youth, it is too early to give up on Mr. ‘Ealelei completely and accordingly I have decided to suspend a portion of his sentence.”

  1. For those reason, I consider that Uasi is likely to take the opportunity offered by a partially suspended sentence to rehabilitate himself after his release from prison for this offending. I suspend the final 18 months of his sentence on conditions.

Niviko Maea

  1. Niviko Maea, is 18 with one previous conviction for drunkenness. I accept that the lack of parental support, exacerbated by his leaving Mrs. Kata’s home where he would have been receiving that support, contributed to his involvement in this offence. I take into account his share in the stolen funds but consider the lending of his knowledge of the complainant’s property in aid of the planning of the offending as proportionate to Uasi’s culpability in this offence. I accept his remorse as genuine and that if he lived where he was receiving family support, it is unlikely he will reoffend. I intend to suspend a portion of his sentence also.

Result

  1. Uasi is convicted of:
    1. Serious housebreaking and sentenced to 3 years and 4 months imprisonment;
    2. Theft and sentenced to 2 years’ imprisonment, to be served concurrently with Count 1.
  2. The suspension of the sentence in CR 53 of 2021 is rescinded and that sentence of 18 months imprisonment is activated.
  3. To give effect to the totality principle, I add 6 months of the sentence in CR 53 of 2021 to Count 1 of the instant sentence resulting in an aggregate sentence of 3 years and 10 months imprisonment.
  4. I suspend the final 24 months of that sentence for a period of 2 years on the following conditions, namely, that during the said period of suspension, Uasi is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    1. report to the probation office within 48 hours of his release from prison; and
    1. complete a life skills and/or such other course as his probation officer may direct.
  5. The total term of imprisonment to be served is a period of 1 year and 10 months.
  6. 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.
  7. Maea is convicted of:
    1. Serious housebreaking and sentenced to 3 years and 4 months imprisonment;
    2. Theft and sentenced to 2 years’ imprisonment, to be served concurrently with Count 1.
  8. I suspend the final 24 months of that sentence for a period of 2 years on the following conditions, namely, that during the said period of suspension, Maea is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    1. report to the probation office within 48 hours of his release from prison;
    1. reside where his probation officer directs as appropriate; and
    2. complete a life skills and/or such other course as his probation officer may direct.
  9. The total term of imprisonment to be served is a period of 1 year and 4 months.
  10. 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
14 February, 2023

[1] [1999] TOCA 12
[2] CR3 of 2013
[3] [2017]TOSC 22
[4] Reported as R v Hungalu & ors – CR 173-174/21, 186-189/21, 191/21
[5] R v Lancelott ‘Amanaki Takai Vailea
[6] R v Selupe [2021] TOSC 47, referring to R v ‘Asa [2020] TOSC 72.
[7] [1998] HCA 57; (1998) 194 CLR 610 at 624.

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