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R v Makafilia [2023] TOSC 3; CR 100 of 2022 (20 January 2023)

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


CR 100 of 2022


REX
-v-
LAUTAIMI MAKAFILIA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs E. Lui for the Prosecution
The Defendant
Date: 20 January 2023


The charges

  1. On 6 December 2022, the Defendant pleaded guilty to:

The offending

  1. As at 10 March 2022, the Defendant and his de facto partner were employed at Lord’s Mobile.
  2. On 26 March 2022, the owner of the shop, Anita Singh, opened for business and noticed that a number of mobile phones, belonging to Lords and its customers, were missing. Security video showed that on 24 March 2022, a person had broken in through the back window. Ms Singh identified that a substantial number of electrical goods had been stolen including laptop computers, tablets, mobile phones and DVD players. The total value of the stolen goods exceeded $82,000.
  3. On 30 March 2022, Detective Vaea viewed the CCTV footage and identified the Defendant, with whom he was familiar.
  4. On 1 April 2022, police executed a search warrant for a residence at which the Defendant was staying. Under the Defendant’s bed, they found a diary with ‘Mamta Singh’ written on it and an HP laptop on a shelf. The Defendant was then arrested.
  5. On 4 April 2022, the Defendant confessed to police that he was remorseful and offered to show them where he had hidden the stolen goods. When they returned to the residence, the Defendant handed the police a ‘Breakfast Crackers’ bucket which contained mobile phones and mobile phone fragments. An employee of Lord’s later identified the items found in the bucket to be some of the stolen items.
  6. On 10 April 2022, police interviewed the Defendant, but he denied the charges.
  7. On 14 April 2022, police executed warrants to search Digicel Tonga and TCC for any outgoing and incoming calls from certain of the stolen mobile phones. On 24 April 2022, TCC provided ownership details of one of the phones which led to the discovery that it had been sold to its then current user by the Defendant and that he had advertised others for sale around that time.

Previous convictions

  1. The Defendant has previous convictions which include, relevantly:

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The only mitigating feature submitted is the Defendant’s early guilty plea.
  3. The Crown relies on the following comparable sentences:
  4. Here, the Crown submits the following sentencing formulation:

Presentence report

  1. The Defendant is 31 years of age. He is the eighth of 10 children. His father passed away when he was an infant. His mother remarried and they moved to live with his stepfather, with whom she bore two more children. Some of the Defendant’s older siblings ended up in prison for housebreaking, theft and drugs. His stepfather is also currently in prison. The Defendant followed the same path in the belief that it was the only means to get by despite the family’s main income from fishing and farming.
  2. The Defendant dropped out of high school in Form 4 due to family pressures and other issues. He later married and had two children. However, his continued use of drugs and alcohol led him to abandon his wife and children. He is now in a de facto relationship with another woman.
  3. The Defendant has been employed as a security guard. Since his stepfather was imprisoned, the Defendant considers himself the breadwinner of the family, caring for his mother and siblings. He reported that some weeks, his wages were not enough to cover daily expenses. His older siblings are married and do not seem to care for their elderly mother.
  4. In relation to the offending, the Defendant told the probation officer that he pleaded guilty because he thought it was “the only easy way out for him”. He admitted the offending but then denied stealing the laptops, tablets and DVD players on the basis, he said, that it would have been necessary to have a vehicle to transport those items whereas all he had was a school bag in which he carried the mobile phones.
  5. Notwithstanding, the probation officer reported that the Defendant has expressed regret and a desire to change his life, particularly, his long-term use of drugs which has contributed to his criminal activity.
  6. The probation officer opined that “incarceration will be beneficial” to the Defendant’s rehabilitation “because he will reflect on his life in prison, participate in spiritual programs and how he can be a better citizen in the future”. On that basis, the officer recommended partial suspension on conditions including completion of a life skills course with the Salvation Army.

Starting points

  1. The relevant statutory maximum penalties are 10 years imprisonment for serious housebreaking[1] and 7 years for theft.[2]
  2. I am ambivalent about the Defendant’s statement to the probation officer that he did not steal certain of the items. He pleaded guilty upon arraignment to the charges and particulars in the indictment (as further detailed in the summary of facts), which included all the items stolen. There is no suggestion on the accepted evidence that there were two break-ins by different thieves at around the same time. His unenviable record for similar offences of dishonesty tends to diminish his credibility. Ultimately, the Defendant’s belated remonstration has little bearing on the sentence to be imposed.
  3. In Valikoula v R [2021] TOCA 5, the Court of Appeal affirmed the principle stated in Mo’unga v R [1998] Tonga LR 154 (“Mo’unga”) to effect that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary. Here, the Defendant’s recidivism, breach of trust and relatively high value of the goods stolen (and not recovered) renders imprisonment necessary.
  4. Having regard to those features of the offending and the range of sentences imposed in the comparable cases referred to by the Crown above, I set the following starting points:

Mitigation

  1. For the Defendant’s early guilty plea and partial co-operation with police, those starting points are reduced to:

Suspension

  1. None of the Mo’unga considerations favour suspension. The Defendant is not young and he has a significant criminal history spanning the last decade resulting in several terms of imprisonment. The offending here was clearly premeditated (aided, no doubt, by his knowledge of his employer’s location and operation). There was no provocation or any other diminution of culpability involved. The Defendant’s co-operation with police was incomplete and inconsistent.
  2. In response to the Defendant’s ‘breadwinner plea’:[3]
“The Courts have repeatedly stated ... that the ‘breadwinner submission’ is one that is constantly raised in the courts of the Kingdom, but which carries little weight in determining whether a Defendant should be sent to prison. Imprisonment will fall hard on the family the Defendant should be supporting, but this Court has commented more than once that such a factor is not the responsibility of the Court: Tukuafu v Police [2001] Tonga LR 151. Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7. Further, the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. It may be accepted that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending: R v Motulalo [2000] Tonga LR 311 at 314.”
  1. Further, in determining whether to suspend any part of a sentence of imprisonment, the court must consider the need for effective deterrence: Rex v Misinale [1999] TOCA 12. As the Court of Appeal observed in Mo’unga, a suspended sentence is intended to have a strong deterrent effect and if the offender is incapable of responding to a deterrent, it should not be imposed. Here, the Defendant’s record plainly demonstrates that successive terms of imprisonment have not resulted in any lasting rehabilitation, nor have they been an effective deterrent against the present offending. In those circumstances, it appears unlikely that the Defendant will take the opportunity offered by any suspension to rehabilitate himself.
  2. I also consider it necessary, given the Defendant’s recidivism for housebreaking and theft, to add weight in the analysis to the need to protect the community by disabling the Defendant from further offending of this kind through incarceration. That though must be balanced with the interests of the wider community in his rehabilitation: Rex v Tau'alupe [ 2018] TOCA 3 at [15].
  3. According to his criminal record, the Defendant has not yet received the benefit of any suspension of his previous sentences.
  4. Therefore, after weighing all those considerations in the balance, I am prepared to give the Defendant the benefit of the doubt in the hope that some suspension will be an incentive for rehabilitation, and he will be aided in that endeavour by the supervision of his probation officer during that period.

Result

  1. The Defendant is convicted and sentenced for:
  2. The final year of the head sentence is to be suspended for a period of 2 years from the Defendant’s release from prison on condition that during the said period of suspension, he is to:
  3. 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.
  4. The sentence is to be backdated to 6 December 2022, when the Defendant was remanded in custody for this proceeding.



NUKU’ALOFA
M. H. Whitten KC
20 January 2023
LORD CHIEF JUSTICE



[1] Ss 174(5)(a).
[2] Where the value of the thing/s stolen exceeds $10,000: Ss 145(b).
[3] Police v De Feng Mo [2022] TOSC 81 at [47] as recently applied in R v Fonokalafi [2022] TOSC 92 at [38].


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