R v Kanongata'a [2023] TOSC 15; CR 115-116 of 2022 (28 February 2023)

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

CR 115-116/2022

REX

-v-

1. SOSEFO KANONGATA’A
2. TANIELA LIHATI HIKILA

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Mrs. S. ‘Eliesa for the Prosecution
Defendants in persons
Date: 28 February, 2023

The proceedings

1. On 16 November, 2022, the First Defendant pled guilty to 1 count of serious

housebreaking contrary to s.173(1)(b) and (5) of the Criminal Offences Act and 1 count of theft contrary to s.143 (a) and 145(b) of the said Act.

2. On even date the Second Defendant pled guilty to 1 count of receiving stolen property contrary to s.148(1) of the said Act.

The offending

3. On a Friday night in June, 2022, the First Defendant, Petuliki Latu and ‘Ofa Vaitohi were playing cards at the Second Defendant’s house. At around 10pm, the First Defendant disappeared and around 2am, Mr. Latu and Mr. Vaitohi left for Mr. Latu’s home.
4. On the way they met the First Defendant. He had 4 pillow cases filled with items. He asked Mr. Latu and Mr. Vaitohi to take 2 pillowcases to the Second Defendant and he left with the other 2 pillowcases.
5. Mr. Latu and Mr. Vaitohi returned to the Second Defendant’s house with the said pillowcases and told him it was from the First Defendant.
6. Inside the 4 pillowcases were 221perfumed oils, 268 sprays, 61 cologne, a rabbit clave, 5 deodorant, shoes, 2 slippers, perfume sets, 8 lipsticks, 11 packets of Extra gum, 3 packages of mint lollies, 5 boxes of Extra gum, and 3 lotion bottles worth $14,565.
7. The value of the items contained in the 2 pillowcases that was with the Second Defendant was worth $1,600.
8. The items were obtained from Lieni Fifita’s house at Ma’ufanga. Lieni operated a small business selling various items from her home including perfume, lotions and various other items. She was travelling at the material time and had Losana Fifita look after her house.

On 16 July, 2022, Losana discovered that Mrs. Fifita’s house had been broken into and items from her business had been stolen and reported it to the police.

Crown’s submissions

9. The Crown submitted the following as aggravating factors against:

Sosefo Kanongata’a

1. invasion of owner’s property and privacy causing them to feel unsafe for themselves and their property;
2. offence was carried out at night;

100. high value of stolen goods;

4. previous related convictions

Lihati Hikila

5. his knowledge that the goods he accepted were stolen goods.

10. The Crown noted the mitigating factors in favour of;

Sosefo Kanongata

1. his early guilty plea; and
2. co-operation with the police;

Lihati Hikila

1. his early guilty plea;
2. co-operation with the police; and

100. lack of previous related offence.

11. The Crown referred to the following comparable sentences:
    1. Rex v Penisiliti Malafu – CR133/2016 – Mr. Malafu was convicted after trial for serious housebreaking and theft. He broke into the complainant’s house and stole Tongan mats valued at $15,000. A starting point of 3 years and 6 months was set for the serious housebreaking and became the final sentence. The defendant had previous related convictions and there was an absence of mitigating factors in his favour. He was sentenced to 2 years imprisonment for the theft concurrent to the serious housebreaking sentence.
    2. R v ‘Amini Liku- CR47/2019 – the 18 year old defendant pleaded guilty to 1 count of serious housebreaking and 1 count of theft. The electrical items stolen were valued at $13,900. For the serious housebreaking, he was sentenced to 2 years and 3 months imprisonment and 2 years for the theft to be served concurrently.
    100. R v Kelikupa Maile – CR 133/2019 – the Defendant was convicted after trial for serious housebreaking and theft. The items stolen were valued at $14,900. A starting point of 3 years and 9 months was set. The final sentence was 3 years and 3 months. The complainant was his neighbor and he did not apologise to the complainant or cooperate with the police. He showed no remorse. The final sentence was 3 years and 3 months with the final 12 months suspended. For the theft, he was sentenced to 2 years and 6 months imprisonment concurrent to the headcount.
12. The Crown proposes the following sentencing formulation:

Sosefo Kanongata’a

13. Through supplementary submissions filed on 13 February, 2023, the Crown corrected records contained in its original submissions for which I am grateful. The impact is that it removed an allegation that the Defendant had breached an earlier suspended sentence and exposed a list of 14 additional records in the Magistrate Court.
14. The Crown suggested the headcount was Count 1 and a starting point of 3-4 years imprisonment as appropriate.
15. For Count 2 the Crown suggests a sentence of 1 year and 6 months imprisonment to be served concurrent to Count 1.
16. In mitigation the Crown suggests the Defendant is entitled to partial suspension due to lack of premeditation and cooperation with the police.
17. The final sentence should be 3 years imprisonment with the final 18 months suspended for a period of 2 years on conditions for count 1. For count 2, 1 year and 6 months imprisonment to be served concurrent to Count 1.

Taniela Lihati Hikila

18. In noting that the value of the goods received by the Defendant amounted to $1,600, the Crown suggests a starting point of 9 – 12 months imprisonment.
19. For his early guilty plea and first offending of this kind, the Crown say a deduction of 6 months in mitigation was appropriate.
20. In terms of suspension, the Crown submitted that based on the Mo’unga principles, the Defendant’s final sentence of 3 months imprisonment should be fully suspended on conditions.

Pre-sentence Report

Sosefo Kanongata’a

21. The Defendant is 32 years old. He is youngest of 3 children. His parents had divorced when he was young and had both remarried. He lived with relatives of his mother until he entered high school when his father took him in. In 2010 when his father died , he moved out of his home and became vulnerable to bad influence of his peers.
    By looking at his previous records, that seems to be accurate.
22. He told the Probation officer he was remorseful and that he had learnt his lesson. He claimed he had offered an apology which has been accepted and that some of the goods have been recovered and returned to the complainant.
23. The Officer recommends the Defendant enroll in the Salvation Army Drugs and Alcohol Awareness and Life Skills courses.

Taniela Lihati Hikila

24. Mr. Etika, for the Defendant, said his client was 32 years old and is married with 5 children. The children’s age range from 10 to 3 years old. They are sealed members of the Church of Jesus Christ and Latter Day Saints.
25. The Defendant worked at his fathers’ carpentry shop and was the breadwinner for the family at the time of the offending. In December, 2022 his wife travelled to Australia on the seasonal fruit picking scheme to help support the family.
26. In addition to the mitigating factors already submitted by the Crown, he described Mr. Hikila as remorseful and ashamed to face his parents, his wife, friends and members of his church because of his offending.
27. Mr. Etika refers to the principle Mo’unga v R [1998] Tonga LR 154, that for a purely property offence, imprisonment is not appropriate unless there are unusual circumstances that render imprisonment necessary.
28. He submitted that unlike Mo’unga, there was no unusual circumstance in the circumstances relating to Mr. Hikila. His client’s contribution to the commission of the offence was minute and that the court should consider the conduct of the Defendants separately. The gravity of the offence lay with Mr. Kanongata’a and that his client’s involvement should be considered at the lower end of the scale.
29. Mr. Etika suggests a sentence of 40 hours of community service under the supervision of the probation officers.

Starting point

Sosefo Kanongata’a

30. The maximum statutory penalty for;
    1. Serious housebreaking – is 10 years imprisonment^[1];
    2. Theft – is 7 years imprisonment^[2];
31. I agree with the Crown that the head count is count 1.
32. The Court of Appeal in Mo’unga^[3] referred to by Mr. Etika held that;

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

33. In Kolomalu^[4] , factors of trust, the amount of money involved and systematic offending were unusual circumstances that rendered imprisonment necessary. The courts have since adopted this position which I intend follow here.
34. The Defendants previous records show he has been convicted 7 times for serious housebreaking, 10 times for theft, twice for wilful damage to things and once for armed robbery. Most of the offences were carried out in the previous 6 years up to July last year around the time of the current offending. The Crown describe him as a habitual offender. I consider this systematic offending an unusual circumstance that renders imprisonment necessary.
35. Having regard to the seriousness of the offence, the maximum statutory penalty, the Defendant’s recidivism, the comparable sentences, the sentencing principles of punishment, self-deterrence and signalling to others who may have the same intention, the need to show the public’s denunciation of such behaviour and to protect the public and their property, I consider a starting point of 3 years appropriate for the serious housebreaking.
36. For the theft, I fix a starting point of 1 year and 6 months for the theft.
37. There is nothing before me that disputes the Defendant’s claim that his apology was accepted by the complainant and some of the goods were recovered and returned, so I have accepted that in considering the starting point above.

Taniela Lihati Hikila

38. The maximum penalty for receiving stolen property is the same as theft^[5].
39. Having regard to the seriousness of the offence, the maximum statutory penalty, the amount involved, the sentencing principles of punishment, deterrence, I adopt the Crown’s suggestion and set a starting point of 9 months imprisonment .

Mitigation

40. For Kanongata ’a’s early guilty plea and cooperation with the police, I deduct 25% from the above starting points, resulting in the following sentences of imprisonment:

Count 1 – 2 years and 3 months imprisonment

Count 2 – 1 year to be served concurrently to count 1

41. For Hikila’s early guilty plea, cooperation with the police and lack of similar offending, I deduct 6 months in mitigation resulting in 3 months imprisonment.

Suspension
Sosefo Kanongata’a

42. The Crown proposed that I should suspend part of the Defendant’s sentence because he had been living a crime free life sine 2016, there was no evidence of premeditation and the accused cooperated with the Police.
43. The Crown’s supplementary submissions of 13 February, 2023 revealed an unenviable record of housebreaking and theft for which he was convicted in the Magistrates court from 2017 to July, 2022. There, the Defendant was either fined or given a suspended sentence.
44. Given his rich record for housebreaking and theft, I have difficulty accepting there was no premeditation involved. He showed up with the stolen goods at 2am in the said morning, all divided into 4 pillowcases, where two was given to Mr. Hikila and he took the other 2 which contained the more valuable stuff. As mentioned before this was systematic.
45. For those reasons none of the principles in Mo’unga apply. However, in consideration of his guilty plea and the fact that the previous records fell within the jurisdiction of the Magistrates court, I suspend the final 9 months of the Defendant’s final sentence on conditions.

Taniela Lihati Hikila

46. The Defendant is not young but I find the remaining principles in Mo’unga can be applied in his favour. I suspend his sentence in full.

Result

47. Sosefo Kanongata’a is convicted for:
    1. Counts 1 - 2 years and 3 months imprisonment;
    2. Counts 2 - 1 year imprisonment to be served concurrently to count 1.
48. The final 9 months of his sentence is suspended and he will serve a total of 18 months and he is to;
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release from prison; and
    4. enroll in the Salvation Army drugs and alcohol awareness courses and life skills while in prison where available or after release from prison as the Probation Officer may see fit.
       
49. Taniela Lihati Hikila is convicted of receiving stolen property and sentenced to 3 months imprisonment which I suspend in full for a period of 12 months 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. undertake 40 hours of community service;
50. Both Defendants must understand that failure to comply with any of those conditions may result in the suspension being rescinded, in which case, they may Defendant will be required to serve the balance of his sentence.
    

P. Tupou KC
JUDGE

NUKU’ALOFA
28 February, 2023

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^[1] S.173(5) of the Criminal Offences Act
^[2] S.145(b) ibid.
^[3] [1998] Tonga LR 154 at 156
^[4] [2012] TOSC 25
^[5] S.148(1) ibid.