R v Tupou [2023] TOSC 22; CR 13 of 2023 (14 April 2023)

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

CR 13 of 2023

REX

-v-

TEVITA TAULANGA TUPOU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs E. Lui for the Prosecution
Defendant in person

Date: 14 April 2023

Charges

1. On 21 February 2023, the Defendant pleaded guilty to one count of serious housebreaking contrary to ss 173(1)(b) and (5) of the Criminal Offences Act and one count of theft contrary to ss 143(b) and 145(b) of the Act.

Offending

2. Hafoka Tule is the steward for the Free Wesleyan Church in Ma’ufanga. On 25 October 2021, after the early morning service, Hafoka locked the church building. On 27 October 2021, when he returned to open the church for the morning service, he noticed that it had been broken into and that nine Tongan mats and two electric fans, with a total value of $14,100, were missing.
3. Police were able to lift a latent fingerprint from the crime scene and confirm that it belonged to the Defendant.
4. On 1 December 2021, the Defendant was arrested. When interviewed on 7 December 2021, he admitted to the offending. Two of the mats were later recovered.

Previous convictions

5. The Crown’s submissions included the following as the Defendant’s only previous convictions:
   • (a) 16 August 2019 - Magistrates Court - four months probation for housebreaking and fined $550 for theft; ^[1] and
   • (b) 22 November 2019 – Magistrates Court - theft - $300 compensation.^[2]
6. However, the record of arraignment for this matter on 21 February 2023 noted that the Defendant was currently serving a prison sentence for another matter. Accordingly, upon enquiry at my direction, the Magistrates Court Registry advised that:
   • (a) on 6 May 2022, the Defendant was convicted of eight separate counts of housebreaking and associated theft of goods valued at a total of just over $21,000 (including a substantial quantity of Tongan mats);
   • (b) that offending occurred during October and November 2021; and
   • (c) the Defendant was sentenced by Senior Magistrate Langi to three years imprisonment (all concurrent), without suspension.^[3]

Crown submissions

7. The Crown submits the following as aggravating features of the offending:
   • (a) housebreaking is a serious offence because it invades people’s privacy;
   • (b) by breaking into a church, the Defendant showed no respect for a sacred place;
   • (c) the value of the goods stolen;
   • (d) only two Ngatu were recovered, valued $2,400; and
   • (e) the Defendant has previous convictions for housebreaking and theft.
8. The only mitigating features are the Defendant’s early guilty plea and co-operation with Police.
9. The Crown relied on the following comparable sentences:
   • (a) Penisiliti Malafu^[4] - The defendant, who had previous convictions for property related offences, was convicted following trial of serious housebreaking and theft of and irreplaceable Tongan heirloom mats valued at more than $15,000. For the serious housebreaking, Cato J set a starting point of 3½ years imprisonment. There were no mitigating circumstances. For the theft, the defendant was sentenced to two years imprisonment to be served concurrently.
   • (b) ‘Amini Liku^[5] - The defendant, who was 18 years of age and a repeat offender, pleaded guilty to serious housebreaking, contrary and theft of electronic equipment and household goods valued at $13,900. A substantial amount of the goods were recovered. For the serious housebreaking, he was sentenced to 2 years and 3 months imprisonment, and 2 years for the theft to be served concurrently.
   • (c) Kelikupa Maile^[6] - The defendant was convicted at trial of serious housebreaking of his neighbour’s property and theft of Tongan mats, electronic equipment and personal items valued at $14,900. For the serious housebreaking, a starting point of 3 years and 9 months was set. For his lack of previous convictions and information to Police which assisted in recovering some of the stolen items, that was reduced to a sentence of 3 years and 3 months imprisonment with the last 12 months suspended. For the theft, the defendant was sentenced to 2½ years to be served concurrently.
10. Here, the Crown submits the following sentencing formulation:
    • (a) a custodial sentence is appropriate;
    • (b) for the head count of serious housebreaking, a starting point of 3 to 4 years imprisonment;
    • (c) 12 months off for the Defendant’s early guilty plea and co-operation with Police;
    • (d) a resulting head sentence of 2 to 3 years imprisonment;
    • (e) 2 years imprisonment for the theft to be served concurrently;
    • (f) based on the criteria in Mo’unga v Rex [1998] Tonga LR 154, including that he was 21 years of age at the time of the offending and his co-operation with Police, the Defendant is eligible for partial suspension of his sentence.

Presentence report

11. The pre-sentence report for this matter was accompanied by a letter from Dr Pita Pepa, an authorised psychiatrist and health practitioner for the prison, stating that the Defendant had been assessed as suffering from mild mental retardation. Notwithstanding, the Defendant was fit to stand trial and was not legally insane at the time of the offending. The probation officer opined that the Defendant’s condition may have affected the accuracy of some of the information he gave her.
12. The Defendant is currently 22 years of age. He is the second eldest of three children. His parents divorced when he was very young. He only completed primary school. He claimed to also be suffering from heart problems although, according to the probation officer, no such problems have been properly diagnosed nor has the Defendant been prescribed medication for them. The Defendant admitted to having been a user of ‘ice’, marijuana, and alcohol.
13. The Defendant also admitted to the offending as detailed in the summary of facts. However, he claimed that his co-accused, Joseph Malungahu, initiated the crime and asked the Defendant to help him as Malungahu needed to pay off a debt (said to be presumably related to drugs). The Defendant agreed to help Malungahu as a friend and was given (an unspecified) portion of the proceeds of sale of the stolen items. He added that Malungahu was mad at him for exposing his involvement in the crime and that he wanted the Defendant solely to bear the consequences.
14. The probation officer described the Defendant’s expression during his interview as ‘neutral’. He did not verbally express any remorse for the offending. When asked whether he regretted committing the offence, he just nodded.
15. The probation officer assessed the Defendant as posing a high risk of reoffending due to his mental condition, association with negative peers, drug use, financial frustration and lack of a positive support system. She further opined that it is critical for the Defendant to receive treatment for his mental condition while incarcerated.

Starting points

16. The statutory maximum penalty for serious housebreaking is 10 years imprisonment. The statutory maximum penalty for theft, where the value of the thing stolen exceeds $10,000, is 7 years imprisonment.
17. This case demonstrates, yet again, the need to repeat Cato J’s warning in R v 'Ana Katokakala Siale^[7], namely, that:

“Those who steal people's possessions risk going to prison. ...
This Court must send out a message that those who steal people’s possessions such as their mats and other items of similar kind valuable to Tongans run a real risk of going to prison. For many Tongans, their mats represent their most valuable possessions and are often found in homes which are not very secure and are easily able to be entered. Indeed, this is a warning to those who steal mats that they can expect to go to prison and those who receive those mats for on sale can also expect to receive sentences of imprisonment.”

18. And in Rex v Tupa,^[8] his Honour amplified the admonition:

“[2] ... It is particularly concerning that in each case the property stolen was fine mats. Plainly, there exists in Tonga an illicit market for Tongan mats and artefacts. I have warned in previous cases, that this Court will view very seriously housebreakings which have as their object the theft of Tongan mats, and also very seriously receivers of those mats. Tongan mats require a great deal of time and effort in production and are very much part of Tongan culture and heritage....
[7] ... To steal Tongan mats is mean spirited and merits severe punishment.”

19. 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. In my view, the Defendant’s previous convictions for similar offending, and for which he is currently serving a significant prison sentence, together with the apparent escalation in his criminal activity, constitute unusual circumstances which render a further prison sentence necessary.
20. Having regard to the seriousness of the offending, the statutory maximum penalties, the comparable sentences and principles referred to above, the value of the property stolen (of which only a fraction has been recovered), and the Defendant’s history of similar offending, I set a primary starting point for the serious housebreaking of three years imprisonment. However, on account of the Defendant’s disrespect in targeting a church, I increase that starting point by one year making a total starting point of four years imprisonment.
21. For the theft, I set a starting point of 2 ½ years imprisonment.

Mitigation

22. For the Defendant’s early guilty plea, co-operation with police (resulting in the recovery of some of the stolen items), and his mental condition,^[9] I reduce those starting points by approximately one quarter resulting in sentences of three years imprisonment for the serious housebreaking and 22 months imprisonment for the theft to be served concurrently with the head sentence.
23. On 21 February 2023, when the Defendant was arraigned, his co-accused, Joseph Malungahu was also arraigned on one count of abetment to theft. By consent, that matter was remitted to the Magistrates Court pursuant to s 36 of the Magistrates Court Act, where, according to the court management system, Mr Malungahu is currently awaiting sentence.

Totality

24. As the Defendant is already serving a sentence of three years for similar offending during the same period, I must consider whether the instant sentence should be served concurrently with, or cumulatively (either wholly or in part) to, the existing sentence.
25. I do not have any information before me to explain why all the offences that occurred during the Defendant’s crime spree in October and November 2021 were not dealt with together when the Magistrates Court sentenced him on 6 May 2022 to three years imprisonment. Had they been, I have little doubt the total sentence would have been somewhat greater, albeit still within the enhanced jurisdiction of that Court.
26. Therefore, having regard to the totality of the Defendant’s criminality constituted by the present offending, marked particularly by the victim being a church, together with his other offending for which he is currently serving a prison term, marked by the relatively high value of the goods stolen also including Tongan mats, I consider it appropriate to add one year from the instant sentence to the existing sentence, making a total sentence of four years imprisonment commencing from 6 May 2022.

Suspension

27. While the Defendant is young and he co-operated with police, he now has a worryingly poor criminal record. For his first forays into housebreaking and theft, in 2019, he received lenient sentences. He ought to have viewed those sentences as an opportunity for rehabilitation. Instead, not only has the Defendant gone on to commit further serious housebreaking and theft, and in this case, from a church, but the nature and value of the items stolen also indicate an increasingly flagrant disregard for the law.
28. When she declined to suspend any part of the current three-year sentence, Senior Magistrate Langi clearly saw little prospect for the Defendant’s rehabilitation through the deterrence offered by even a partly suspended sentence and placed greater weight on the need to protect the community. In that event, the additional offending in this proceeding only heightens those concerns and I endorse them.
29. However, in circumstances where:
    • (a) the Defendant, in this case, co-operated with the authorities thereby demonstrating an acceptance of responsibility for his wayward actions;
    • (b) there is some diminution of culpability by reason of:
      • (i) the Defendant’s mild mental retardation; and
      • (ii) according to his account to the probation officer, Mr Malungahu allegedly taking advantage of his condition and orchestrating the offending for his financial gain; and
    • (c) the Defendant having now served almost the first year of his (now combined) sentence which hopefully has given him an opportunity to reflect on and adjust his attitude to society, the law and his place in both,

I am prepared to suspend part of the aggregate sentence as an incentive for his reform.

Result

30. In the result, the Defendant is convicted of:
    • (a) serious housebreaking and sentenced to 3 years imprisonment; and
    • (b) theft and sentenced to 22 months imprisonment, to be served concurrently with the head sentence.
31. One year of that sentence is to be added to the end of the sentence of three years the Defendant is currently serving.
32. The final year of the aggregate sentence of four years commencing 6 May 2022 is to be suspended for a period of two years from the date of the Defendant’s release from prison on condition that he:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer;
    • (d) reside where directed by his probation officer; and
    • (e) complete courses in life skills and alcohol and drug awareness as directed by his probation officer.
33. 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 prison term.

NUKU’ALOFA	M. H. Whitten KC
14 April 2023	LORD CHIEF JUSTICE

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^[1] CR 417-419/2018

^[2] CR 517/2019

^[3] CR 673, 674, 684, 685, 690-695, 724, 725 of 2021 and CR 175-178 of 2022. In CR 45/22, the Defendant was also sentenced for escaping police custody.

^[4] Unreported, Supreme Court, CR 133/2016, 29 March 2018, Cato J.

^[5] Unreported, Supreme Court, CR 47/2019, 24 May 2019, Cato J.

^[6] Unreported, Supreme Court, CR 133/2019, 5 September 2019, 4 October 2019, Cato J.

^[7] CR 33, 39 of 2013, 25 July 2014.

^[8] [2017] TOSC 35

^[9] A Court is entitled to take into account a Defendant’s mental disability in determining his level of culpability: Rex v 'Ahoafi [2016] TOSC 10, citing Fa'aoso v R [1996] TLR 42, at 45; Taufa v R (AC 17/04).