R v To'ia [2023] TOSC 14; CR 112 of 2022 (28 February 2023)

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

CR 112/2022

REX
-v-
SIUTAISA TO’IA

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Mrs. T. Vainikolo for the Prosecution
Defendant in person
Date: 28 February, 2023

The proceedings

1. On 26 October, 2022, the Defendant pleaded guilty to 6 counts of forgery, contrary to s.170 of the Criminal Offences Act, 6 counts of knowingly dealing with forged documents contrary to s.172 of the said Act and 1 count of obtaining money by false presences contrary to s.164 of the said Act.

The offending

2. Mr. Pelenato Tutoe of Tungua, Ha’apai held account No.285-S1 with the Tonga Development Bank. In July, 2020, Mr. Tutoe left his bank account with the Defendant and authorized her to withdraw $2,500 from his account. Mr. Tutoe is the Defendant’s father.
3. In February, 2022 Mr. Tutoe found out from his daughter that she had used up all of the money held in his account. Mr. Tutoe called the bank to confirm and discovered it was true.
4. The bank summoned a special internal audit which uncovered the forged withdrawal slips, letters of authorization and withdrawals totaling $35,000 between the periods of December, 2021 to 31 January, 2022.
5. The auditor recommended the Bank to repay the entire $35,000 to Mr.Tutoe because the bank was partially responsible for not following bank policies on withdrawals.
6. The matter was referred to the police and the following charges were laid against the Defendant;

Count 1 - for making a false document on 14 December, 2021, by signing a withdrawal slip for $3,500 with the intention to deceive the Tonga Development Bank (“the Bank”) into acting on it as if it were genuine.

Count 2 - for making a false document on 28 December, 2021 by preparing an authorization letter in the name of Pelenato Tutoe authorizing herself to withdraw $2,500 from Mr. Tutoe’s account with the intention to deceive the Bank into acting on it as if it were genuine.

Count 3 - for making a false document on 4 January 2022 by preparing an authorization letter in the name of Pelenato Tutoe authorizing herself to withdraw $9,000 from Mr. Tutoe’s account with the intention to deceive the Bank into acting on it as if it were genuine.

Count 4 - for making a false document on 17 January 2022 by preparing an authorization letter in the name of Pelenato Tutoe authorizing herself to withdraw $8,000 from Mr. Tutoe’s account with the intention to deceive the Bank into acting on it as if it were genuine.

Count 5- for making a false document on 24 January 2022 by preparing an authorization letter in the name of Pelenato Tutoe authorizing herself to withdraw $7,000 from Mr. Tutoe’s account with the intention to deceive the Bank into acting on it as if it were genuine.

Count 6 - for making a false document on 31 January 2022 by preparing an authorization letter in the name of Pelenato Tutoe authorizing herself to withdraw $5,000 from Mr. Tutoe’s account with the intention to deceive the Bank into acting on it as if it were genuine.

Count 7 - for submitting the withdrawal slip prepared on 14 December, 2021 to the Bank with the intention that it acted on it, knowing it was forged.

Count 8 - for submitting the authorization letter prepared on 28 December, 2021 to the Bank with the intention that it acted on it, knowing it was forged.

Count 9 - for submitting the authorization letter prepared on 4 January 2022 to the Bank with the intention that it acted on it, knowing it was forged.

Count 10 - for submitting the authorization letter prepared on 18 January 2022 to the Bank with the intention that it acted on it, knowing it was forged.

Count 11 - for submitting the authorization letter prepared on 25 January 2022 to the Bank with the intention that it acted on it, knowing it was forged.

Count 12 - for submitting the authorization letter prepared on 31 January 2022 to the Bank with the intention that it acted on it, knowing it was forged.

Count 13 - for obtaining a sum of $35,000 from the Bank by submitting false documents to the Bank that purported to authorize her to withdraw monies from Mr. Tutoe, knowing the said documents to be false and causing the Bank to give her a total of $35,000 from the said account from December 2021 to January 2022.

7. The Bank has not repaid Mr. Tutoe the $35,000.

Crown’s submissions

8. The Crown submitted the following as aggravating factors:
   1. grave breach of trust, given the money obtained belonged to her father;
   2. this is a serious offence;
   100. the offending was premeditated and calculated;
   4. the offending spanned over more than 2 months;
   5. none of the money has been repaid to her father;
   6. it involved a substantial amount of money.
9. The Crown noted the mitigating factors to be;
   1. the Defendant’s early guilty plea;
   2. co-operation with the police; and
   100. a lack of previous criminal record.
10. The Crown referred to the following comparable sentences:
    1. R v Lolini ‘Ofa (unreported, CR 316 of 2020) – the 24 year old Defendant was charged with theft of $18,189.60, 3 counts of forgery and 3 counts of knowingly dealing with forged documents. The Defendant forged her uncle’s signature on his business cheques and cashed a total of 43 cheques between September 2019 to April, 2020. She was sentenced to 2 years imprisonment for the theft, 12 months imprisonment for each forgery count and 6 months imprisonment for knowingly dealing with a forged document both to be served concurrently to the theft sentence. The sentence suspended in whole for 1 year on conditions.
    2. R v ‘Ilona Maira Ika (unreported, CR187 of 2020) – the 27 year old Defendant was employed at the ANZ Bank. On 9 different occasions, she withdrew monies from a clients’ bank account, totaling $18,000. She was charged with theft. She pleaded guilty, was a first time offender and full restitution of the funds taken was made. A starting point of 2 years was set with a deduction of 12 months in mitigation. Six months of the remaining 12 months was suspended.
    100. R v Semisi Fakava (unreported, CR 170 of 2020)- the Defendant was charged with 2 counts of forgery, 2 counts of knowingly dealing with forged documents and 1 count of obtaining by false pretence. He had forged cheques belonging to his parents in the amount of $700 and had taken steps to make repayments. He had entered Sia’atoutai Theological College in an attempt to turn his life around. He was sentenced to a bond of good behaviour for 15 months on conditions, under s.198 of the Criminal Offences Act.
    4. R v Sailosi Vea Finau (unreported CR 146 of 2019)- The 29 year old Defendant was charged with one count of theft. On separate occasions, he managed to withdraw a total of $11,044 from his father’s bank account with the Tonga Development Bank. He was sentenced to 18 months imprisonment fully suspended on conditions.
    5. R v Filimone To’aho (unreported, CR 24 of 2021)- The 40 year old Defendant had obtained a loan of $17,767.81 from the complainant to buy 20 vehicles from Japan. Ownership of the vehicles was to be in the name of the complainant. The Defendant was to sell the vehicles and repay the loan. Two of the said vehicles were to be retained by the complainant. The Defendant changed the ownership of all 20 vehicles to him and sold them. The complainant confronted him and the Defendant agreed to sign over 8 vehicles. The Defendant contrary to that agreement sold the 8 vehicles as well. On 19 May, 2021, the Defendant repaid $17,000 of the loan. He was charged with theft and pleaded guilty on the day his trial was to occur. A starting point of 22 months was set. For his good record and eventual guilty plea, 5 months was deducted. A further 5 months was deducted for the restitution of most of the monies loaned leaving a balance of 12 months imprisonment. The sentence was suspended in whole on conditions for a period of 2 years.
    6. R v Malia Selupe (unreported, CR 47 of 2020- the Defendant over a period of 14 months operated a car dealer business that held out it was importing vehicles from Japan via online bids and sales. From May 2016 to August, 2017, she received a total amount of $59,950 from the four complainants via her business. The complainants did not receive any vehicle or their money back. Count 1 involved an amount of $20,300 in respect of complainant 1. Count 2 involved $16,850 in respect of complainant 2. Count 3 involved $1,000 and Count 4 involved $12,000 in respect of complainant 3. Count 5 involved $9,800 in respect of complainant 4. Starting points fixed were, 24 months for count 1, 20 months for count 2, and 16 months for counts 3 and 4 combined and 12 months for count 5. The total starting point equated to 6 years imprisonment and was to be served cumulatively on the basis each offending constituted a separate crime. In applying the totality principle and being satisfied the length of the sentence would be crushing on the Defendant, the court deducted 2 years leaving a 4 years’ imprisonment. For her late guilty plea and previous good record 1 year was further deducted leaving 3 years. The final 12 months of her sentence was suspended for a period of 2 years on conditions due to her lack of previous convictions and that she was a mother of 5 young children.
    7. R v Mateo (unreported, CR 61 of 2018)- The 23 year old Defendant was an employee of Pacific Forum line. He obtained $8,200 by telling the complainant that Pacific Forum Line was selling him a container. He created false invoices and receipts from the said company and received the money. He was charged with 1 count of obtaining money by false pretenses, 3 counts of forgery and 3 counts of knowingly dealing with forged documents. He was willing to repay the complainant but by the date of his sentencing, it had not been done. A starting point of 2 years imprisonment was fixed for count 1 as the head sentence. The sentences for counts 2-4 and 5-6 were to be served concurrently. The Crown recommended full suspension relying on the Defendant’s intention to repay the complainant. The sentence was fully suspended for 2 years on conditions including the repayment of the money obtained.
11. The Crown proposes the following sentencing formulation:

Starting points should be as below;

Count 1 – 12 months’ imprisonment

Count 2 – 11 months’ imprisonment

Count 3 – 28 months’ imprisonment

Count 4 – 26 months’ imprisonment

Count 5 – 24 months’ imprisonment

Count 6 – 18 months’ imprisonment

Count 7-12 months’ imprisonment for each count

Count 13- 3 years imprisonment.

12. In terms of mitigation the Crown propose the following deductions;

Counts 1 – 6 months;

Counts 8-12 – 6 months;

Count 13 – 12 months.

13. The proposed final sentences are;

Count 1 – 9 months imprisonment

Count 2 – 8 months imprisonment

Count 3 – 21 months imprisonment

Count 4 – 19 months imprisonment

Count 5 – 18 months imprisonment

Count 6 – 13 months imprisonment

Counts 7 – 12 – 18 months imprisonment

Count 13 – 24 months imprisonment.

14. The Crown further suggested that the sentences in counts 1- 12 be served concurrently with the sentence for count 13 and accepts that the Defendant is entitled to a partly suspended sentence on the basis of the amount and no restitution made.

Victim impact report

15. I received a victim impact report from the Crown yesterday. The report explains that Mr. Tutoe’s living is by being a middle man for fishermen in Ha’apai to the Tongatapu market. The money in his account were his savings for a rainy day and emergencies.
16. That day came when Hunga-Tonga- Hunga-Ha’apai erupted. The ensuing tsunami destroyed his boat along with his means of a living. He called the Tonga Development Bank to enquire about his account and was informed there was nothing in it. He soon found out it was withdrawn by his daughter.
17. He said he was very hurt. But his daughter had apologized to him and he has since forgiven her and asks on her behalf for mercy and a lenient sentence.
18. He confirmed that his daughter’s husband had a serious illicit drug problem and his money was used to fuel their illegal drug use. She has separated from him and he is now providing for her and her children.
19. He is engaged in selling “kie” to the Tongatapu market.

Pre-sentence Report

20. After some problems in obtaining a pre-sentencing report, I received one on 15 February, 2023. It reports that the Defendant is an only child of her parents. She grew up in Tungua, Ha’apai. Her parent’s relationship was fractured due to infidelity. Despite attempts at reconciliation, they are currently in the process of a divorce. Her father is living with a partner in Ha’apai and her mother lives with her at Ma’ufanga, Tongatapu.
21. She came to Tongatapu to attend ‘Apifo’ou College. She passed the Tonga School Certificate and left school at 6^th Form. She married Taione Lomitau To’ia in 2018. They have a young family of 4 children. They have a 4 year old, a 1 year old and 3 month old twins.
22. They are members of the Catholic Church of Ma’ufanga but Fr. Finau, the Parish Priest said that the Defendant did not attend or participate mass or take heed of his advice. She is healthy and earns a living by weaving.
23. The report explained that her marriage has been problematic and they have been separated since June, 2022. Alcohol and drug abuse is the cause of her problems expanding to her offending here. At one point she was prepared to stop but her husband objected which eventually led to domestic abuse. She currently has a protection order against him.
24. It is reported that the Defendant has quit drinking alcohol and taking drugs. She accepts her bad behavior and intends to make amends. She has showed real remorse and although slow in taking her Priest’s advice, his support is available to her.
25. The Probation Officer recommends a partly suspended sentence on conditions.

Starting point

26. The maximum statutory penalty for;
    1. forgery – is 7 years imprisonment;
    2. knowingly dealing with forged documents is 5 years imprisonment; and
    100. obtaining money with a value exceeding $10,000 by false pretenses is 7 years.
27. I agree with the Crown that the head count is count 13.
28. The Court of Appeal in Mo’unga^[1] held that;

"... imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary."

29. In Kolomalu^[2] , factors of trust, the amount of money involved and systematic offending were unusual circumstances that rendered imprisonment necessary.
30. In assessing the sentencing tariff in the comparable cases above, the consistent approach, appear to be that amounts involving up to $10,000 attract a starting point of 12 months with the exception of Mateo. For amounts up to $18,000, starting points vary up to 22 months as in To’aho. Cases involving amounts from $18,000 upwards attract 24 months upwards. This is consistent with ‘Oaf and IA and the break-down of the starting points in Slope where the following starting points were set;

Count 1 – involving an amount of $20,000, a starting point of 24 months;

Count 2- involving an amount of $16,850, a starting point of 20 months;

Counts 3-4 – involving a total amount of $13,000, a starting point of 16 months

Count 5 – involving an amount of $9,800, a starting point of 12 months.

31. Also consistent is the case of R v Late- CR46 of 2021 involving 2 counts of obtaining by false pretences of $20,000 where a starting pointing of 24 months was set. Having made these observations, I recognise that each case must be decided on its facts and that no rigid or inflexible rule can be set. In that sense, I am guided here, by LCJ Whitten QC comments in Slope where he said;

“...rather than seek to dissect and add parts of one sentence to another, I prefer to look at the offending as a whole and determine by reference to the statutory maximum, the comparable sentences provided, the total quantum of the moneys obtained and the applicable principles referred to above for sentencing offending of this kind, in particular the need for deterrent sentence, to arrive at a global starting point which suitably reflects the Defendant’s overall level of criminality.”

32. In that case the total amount obtained by false pretences was $59,950 and His Honour set a global starting point of 4 years imprisonment.
33. Therefore, having regard to the seriousness of the offence, the comparable sentences and tariffs mentioned, the premeditated and systematic nature of the offending, her breach of her father’s trust to quench her alcohol and drug abuse the principles of punishment and deterrence, and considering a global starting point, I set the following starting points;

Count 1 – 3 months

Count 2 – 3 months

Count 3 – 12 months

Count 4 – 12 months

Count 5 – 8 months

Count 6 – 6 months

Count 7 – 12 – 24 months for each count

Count 13 - 2 years and 6 months.

Mitigation

For the Defendant’s early guilty plea and good record, I deduct 30% from the above starting points, resulting in the following sentences of imprisonment:

Count 1 – 2 months

Count 2 – 2 months

Count 3 – 8 months

Count 4 – 8 months

Count 5 – 5 months

Count 6 – 4 months

Count 7 – 12 – 16 months for each count

Count 13 - 1 year and 8 months

Concurrent or Cumulative

34. I am satisfied that the offences here committed over a month against the one account are closely connected and should be regarded as one course of criminal activity and the sentences for counts 1 – 12 is to be served concurrent to count 13.

Suspension

35. I have turned my mind to the principles on suspension in Mo’unga [1998] TLR 154 at 157. Here the Defendant was 27 at the time of the offending. She was married with a child and I consider her sufficiently mature. She has no previous records, pleaded guilty at first opportunity and cooperated with the authorities. I accept some degree of coercion from her husband played a part in her activities.
36. When this matter was last called on 18 January, 2023, the bank’s position not to repay Mr. To’ia was confirmed. The Defendant told me in court that she intended to repay her father the money she took.
37. The Defendant is now a solo parent to her 4 young children, all under the age of 5. The eldest is 4 years old, the next child is 1 year old and the twins are 3 months old. A custodial sentence will leave those children without a parent for those vulnerable but critical years of their life. That would create an unforgiving environment for them.
38. I have also factored in her father’s forgiveness and plea for mercy on her behalf.
39. For those reasons, I am prepared to fully suspend the Defendant’s sentence for a period of two years on conditions. I do so with the expectation that the Defendant will consider herself fortunate. That she would use this opportunity to fully rehabilitate herself to be the mother her children need. To provide a safe, happy and loving environment that will present them as good standing citizens in the future.

Result

40. The Defendant is convicted for:
    1. Counts 1 and 2 and sentenced to 2 months imprisonment;
    2. Counts 3 and 4 and sentenced to 8 months imprisonment;
    100. Count 5 and sentenced to 5 months imprisonment;
    4. Count 6 and sentenced to 4 months imprisonment;
    5. Counts 7 – 12 and sentenced to 16 months for each count;
    6. Count 13 and sentenced to 1 year and 8 months imprisonment.
41. Counts 1 – 12 shall be served concurrent to Count 13.
42. The full sentence is to be suspended for a period of 2 years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. enroll in a drug rehabilitation and counseling course as directed by her Probation Officer.
43. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant may be required to serve the balance of her sentence.
    

NUKU’ALOFA
28 February, 2023

P. Tupou KC
JUDGE

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^[1] [1998] Tonga LR 154 at 156
^[2] [2012] TOSC 25