R v Malupo [2023] TOSC 24; CR 1 of 2023 (14 April 2023)

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

CR 1 of 2023

REX
-v-
Sione Matangi Malupo

SENTENCING REMARKS

BEFORE: HONOURABLE JUSTICE TUPOU
Appearances: Mrs. T. Vainikolo for the Prosecution
Mr. S. Malupo, in person
Date: 14 April 2023

The charges

1. On 10 February 2023, the Accused pleaded guilty to serious housebreaking, contrary to sections 173(1)(b) and (5) of the Criminal Offences Act and theft, contrary to sections 143(a) and 145(b) of the said Act.

The offending

2. On 18 June, 2022 on or around 7:00pm, the Defendant broke and entered into ‘Ahongalu Lopeti’s home and stole the following items;

	Description and Quantity of Items	Value (Pa’anga)
1.	11 kgs Kava Powder	$550
2.	15 ft mat (Fihu)	$2000
3.	15 ft mat (Falafefeka)	$1000
4.	30 ft mat (Fihu)	$2500
5.	20 ft mat (unfinished fihu)	$2000
6.	1 x waist mat (hete)	$750
7.	1 x waist mat (faka’ahu)	$200
8.	1 x waist mat (lokeha)	$500
9.	1 x kiekie fau	$50
10.	1 x kiekie pulu	$150
11.	1 x waist mat (putu)	$300
12.	1 x iphone device (red)	$800
13.	1 x Samsung phone device	$500
14.	4 x keypad phone device	$200
15.	1 x G-Shock wrist watch	$100
	TOTAL	=$11,600

3. The defendant sold all of the stolen items to Fusi Kalonihea of Ma’ufanga except for the iphone device, Samsung phone device, 4 keypad phone devices and the G-Shock wrist watch.
4. The Police recovered and took into custody the G-Shock wrist watch and 1 waist mat valued at $300.
   

Crown’s submissions

5. The Crown considered the aggravating factors to be:
   1. the invasion of people’s property and privacy making them feel unsafe in their own home;
   2. The value of the goods stolen including expensive Tongan crafts of sentimental value to Tongans;
   100. only two items were recovered by Police;
   4. the defendant’s previous convictions for housebreaking and theft.
6. The Crown submits the mitigating features to be the defendant’s:
   1. early guilty plea; and
   2. co-operation with the Police.
7. The Crown referred to the following comparable sentences:
   1. Rex v Penisiliti Malafu (Unreported, Supreme Court, CR 133/2016, 29 March 2018, Cato J) – the Accused was charged with serious housebreaking and theft of Tongan mats that were valued at more than $15,000.00. He was sentenced to 3 years and six months imprisonment with the final six months suspended and two years’ imprisonment to be served concurrently for the Theft.
   2. Rex v ‘Amini Liku (Unreported, Supreme Court, CR 47/2019, 24 May 2019, Cato J) – The accused pleaded guilty to housebreaking and theft of items that were valued at $13,900.00. He was sentenced 2 years and three months imprisonment for the housebreaking and two years’ imprisonment for the theft to be served concurrently.
   100. R v Kelikupa Maile (Unreported, Supreme Court, CR 133/2019, 5 September 2019, 4 October 2019, Cato J) - the accused pleaded guilty to serious housebreaking and theft of items that were valued at $14,900. He was sentenced to three years and three months imprisonment with the last 12 months suspended for the serious Housebreaking and two years and six months imprisonment for the theft to be served concurrently.
8. The Crown submits a custodial sentence is appropriate with Count 1 as the head sentence. It recommended a starting point of 3-4 years with a 12 month deduction for the defendant’s early guilty plea and cooperation with the police. For count 2, a final sentence of 1 year and 6 months to be served concurrent to Count 1.
9. In applying the principles in Mo’unga v Rex [1998] Tonga LR 154, the Crown suggested a partial suspension was permissible for the defendant’s cooperation with the police and lack of premeditation.

Pre-Sentence Report

10. The Defendant is 35 years old. His parents have both passed on. He has 9 siblings. His family is from Ma’ufanga. He attended the Ma’ufanga Government Primary school. Afterwards, he enrolled at Apifo’ou College and completed 3^rd form.
11. He is married to Pipiena Malupo and they have 3 children. Two of the children are adopted by relatives and they care for one. They belong to the Catholic Church of Ma’ufanga but the Defendant is not in regular attendance.
12. He is in good health and was previously employed with a Construction Company. Since the covid-19 lockdown he has been unemployed.
13. The Defendant admitted his interest was in drugs and alcohol. He was an addict who had no money to buy his supply. He and his friends were “peering” around to see what to do to make some money. At that point, only his friends mattered and he had no option but to commit this crime.
14. He bluntly told the probation officer that his family knew what he was doing. His wife and child were happy in the care of relatives. He said, he was hardly there for them in any event and they are sustained by the love of their relatives.
15. He is reported to regret his actions and the loss suffered by the complainant and vowed he would not do it again.
16. The town officer of Ma’ufanga said that the accused is associated with activities that are extremely harmful to society. He prayed for the likes of the defendant to build a better life and become better members of the society.
17. The defendant is currently remanded in custody for another matter before the Magistrates Court. The probation officer considered the defendant a high risk offender due to his recidivism, lack of income and strong association with negative peer pressure.
18. Like the Crown, she also recommends a custodial sentence to be partially suspended on conditions.

Starting point

19. Section 173(5) of the Criminal Offences Act provides a maximum penalty of 10 years imprisonment for serious housebreaking. Section 145(b) provides a maximum penalty of 7 years imprisonment for theft.
20. In Valikoula v R, AC 9 of 2020, the Court of Appeal in determining the appropriate starting points, had regard, amongst other things, to;
    1. the seriousness of the offence by reference to the value of the goods stolen,
    2. the comparable sentences presented below, and
    100. the offender’s degree of involvement and culpability.
21. The comparable sentences referred to by the Crown all range above the value of the goods involved here and I have been guided by R v Kaufusi – CR 62 &63 of 2022. In that case, the goods were estimated at a value of $11,840. All of the goods were recovered except for two items valued at a total of $2,750. In that case, the defendant possessed an unenviable record of 9 previous convictions which involved two incidences of housebreaking and theft plus 2 other offendings involving housebreaking.
22. A starting point of 3 years 6 months imprisonment was set for the serious housebreaking and 2 years imprisonment for the theft, owing to most of the stolen goods having been returned. For Kaufusi’s guilty plea, 8 months was deducted for the serious housebreaking and 6 months for the theft. The final sentence was 2 years and 10 months for the serious housebreaking and 18 months for the theft. From an aggregate sentence of 4 years and 10 months after revocation of a previous suspended sentence, 12 months was suspended for 2 years on condition.
23. In Mo’unga v R [1998] Tonga LR 154, the Court of Appeal opined that imprisonment was not appropriate for a purely property offence unless unusual circumstances were present to render imprisonment necessary.
24. In R v Kalolaine Fainga’a [2022]TOSC 64, referred to by the Crown in Kaufusi^[1],involved housebreaking and theft of goods valued at $12,095. The Court in that case considered Fainga’a’s one previous conviction for identical offending a circumstance that rendered imprisonment necessary. A starting point of 2 years 6 months imprisonment was set for the housebreaking and 2 years for the theft. In mitigation 6 months was deducted with the final 8 months suspended for 2 years on condition.
25. At this point, I pause to address an issue raised by the Crown that will bear some weight in the approach I take to set a starting point. In the Crown’s sentencing submission filed on 13 March, 2023, it sought to increase the starting point in its indicative sentencing submission filed on 21 November, 2022 from 2 – 2years and 6 months imprisonment to 3 – 4 years’ imprisonment for the serious housebreaking. That is a significant increase.
26. In R v Langi [2022] TOSC 78, the Court in dealing with comparable circumstances, said:

“It is not appropriate for the Crown, upon a belated realisation as to the additional seriousness of the offending by reason of the concealment of the firearms and ammunition, to file submissions on sentence, as has occurred here, which include an alternative sentencing formulation involving imprisonment. While the Crown’s indicative sentencing submission cannot bind the Court, it is intended to, and will often be an important consideration for any Defendant considering his or her plea ahead of arraignment. For that reason, and in the absence of any change of circumstances or new information between the filing of the indicative submission and the final disposition of the proceeding to which the submission relates, it is very important that the Crown carefully considers all features of the alleged offending so that the indicative sentencing range accurately reflects those features and may reasonably be relied upon by the Defendant to be consistent with the actual submissions filed by the Crown on any subsequent sentencing.

27. For that reason, and notwithstanding my concerns about the level of criminality indicated by the concealment of the firearms and ammunition, I consider that it would be unfair and inappropriate to countenance the Crown’s alternative submission in relation to imprisonment. Had such a formulation been expressed in the Crown’s indicative sentencing submission, the situation may well have been different.
28. Returning to the instant case, the relevant comparable cases on which the increase is based were available at the time the indicative submission was filed. In my view, the Crown has not relied on any change of circumstance or new information arisen between the filing of the said indicative submissions and this sentencing.
29. Accordingly, in following Langi, I adopt the indicative submission and set a starting point of 2 years and 6 months imprisonment for the serious housebreaking and 2 years for the theft.
30. Mr. Malupo should consider himself fortunate, because had it not been for the issue of the indicative submission, an appropriate sentence would have been in the range in Kaufusi.

Mitigation

31. For his early guilty plea and cooperation with the police, I reduce the above starting points by 6 months for each count, resulting in a final sentence of 2 years for the serious housebreaking and 1 year and 6 months for the theft.

Suspension

32. Against the principles discussed in Mo’unga^[2], the defendant is not young and has a poor criminal record. I do not agree with the Crown that the offending was not premeditated. By his own admission, the defendant said he and his friends were “peering” at what to do to get money and had no option but to commit this offence. In fact, he cared about nothing else at the time. He showed no concern or responsibility for his wife and child and believed they were their relative’s responsibility. As to the likelihood of rehabilitation, Malupo has had two previous suspended sentences, opportunities that he clearly has not taken seriously or made proper use of.
33. Nonetheless, he has pleaded guilty, co-operated with the police and expressed some remorse for his actions. For that, I am prepared to suspend the final 6 months of his sentence.

Result.

34. Sione Matangi Malupo is convicted of;
    1. Count 1 for serious housebreaking and sentenced to 2 years imprisonment ; and
    2. Count 2 for theft and sentenced to one year 6 months imprisonment to be served concurrently with count 1.
35. The final 6 months of the said sentence is suspended for a period of 2 years from the date of his release from prison on the condition that during the period of suspension, he is to:
    1. Not commit any offence punishable by imprisonment;
    2. Report to the probation office within 48 hours of his release from prison and thereafter as directed as directed by his probation officer;
    100. Complete courses in drugs and alcohol awareness/rehabilitation and life skills if available while in prison or after release as directed by his probation officer.
36. The Defendant is advised that failure to comply with any of the above conditions may result in the suspension being rescinded in which case; he may be required to serve the balance of his sentence.

P. Tupou KC

J U D G E

NUKU’ALOFA

14 April 2023

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^[1] Ibid.
^[2] Ibid.