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:
   • (a) serious housebreaking, contrary to ss 173(1)(b) and (5) of the Criminal Offences Act; and
   • (b) theft, contrary to ss 143(a) and 145(b) of the said Act.

The offending

2. As at 10 March 2022, the Defendant and his de facto partner were employed at Lord’s Mobile.
3. 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.
4. On 30 March 2022, Detective Vaea viewed the CCTV footage and identified the Defendant, with whom he was familiar.
5. 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.
6. 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.
7. On 10 April 2022, police interviewed the Defendant, but he denied the charges.
8. 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

9. The Defendant has previous convictions which include, relevantly:
   • (a) 2013 – theft – 18 months imprisonment;
   • (b) 2016 – housebreaking and theft – 3 years imprisonment;
   • (c) 2020 – theft and wilful damage – 3 months imprisonment.

Crown’s submissions

10. The Crown submits the following as aggravating features of the offending:
    • (a) housebreaking is a serious offence which ‘feeds into the fear of the public over their possessions and property’;
    • (b) as a former employee of the Complainant, the Defendant’s actions constituted a breach of trust;
    • (c) the relatively high value of the stolen items;
    • (d) only one phone (valued at approximately $5,000) was recovered; and
    • (e) the Defendant has previous convictions for housebreaking and theft.
11. The only mitigating feature submitted is the Defendant’s early guilty plea.
12. The Crown relies on the following comparable sentences:
    • (a) Lancellot Vailea (CR 189/2021) – the Defendant plead guilty to serious housebreaking and theft of Tongan crafts valued at $64,500. He had previous convictions. He was sentenced to 3 years imprisonment for the housebreaking charge and 3 years imprisonment for the theft to be served concurrently. The final year of the resulting sentence was suspended for two years on conditions.
    • (b) Penisiliti Malafu (CR 133/2016) – the Defendant was convicted after trial of serious housebreaking and theft of Tongan mats worth more than $15,000. He too had previous convictions. Cato J set a starting point of 3 ½ years for the housebreaking and two years for the theft to be served concurrently. There were no mitigating factors. The final six months was suspended for housebreaking.
    • (c) ‘Amini Liku (CR 47/2019) – the Defendant pleaded guilty to serious housebreaking and theft of electronic equipment valued at $13,900. He also has previous convictions. Cato J sentenced the Defendant to 2 years and 3 months imprisonment for the housebreaking and 2 years concurrent for the theft.
    • (d) Kelikupa Maile (CR 133/2019) – the Defendant was convicted after trial of serious housebreaking and theft of goods (which included Tongan mats, electronic equipment and toiletries) valued at $14,900. He was sentenced to 3 years and 3 months imprisonment for the housebreaking and 2 ½ years for the theft, with the last 12 months suspended.
    • (e) Heuifanga Vea (CR 12/2018) – the Defendant was convicted of embezzlement of $80,000, of which $10,000 was returned. Cato J sentenced the Defendant to 3 years and 3 months imprisonment with the final 9 months suspended on conditions.
    • (f) ‘Ana Moala Tu’itavuki & Malakai Tu’itavuki (CR 172 & 173/2019) – where the following comparable sentences for the analogous offence of embezzlement were considered:
      • (i) Misinale [1999] TOCA 12 – the defendant was found guilty of embezzling a total of $47,310.23 in the course of his employment as an accountant. On appeal, the sentence of 3 years imprisonment was affirmed with the last 12 months suspended for 2 years.
      • (ii) Cocker (CR 3/2013) – the defendant pleaded guilty to embezzlement, falsification of accounts and theft of $99,450 over a two-year period. She was sentenced to 3 years imprisonment (from a starting point of 4 years and 6 months) with the final year suspended on conditions.
      • (iii) Pousini [2017] TOSC 22 – the Defendant embezzled and money laundered the proceeds of 14 cheques totalling $73,276, of which she retained $34,400. A starting point 2 ½ years was set. After discounts for her good previous record and co-operation, Paulsen LCJ sentenced the Defendant to 1 year and 5 months imprisonment, which was then fully suspended.
13. Here, the Crown submits the following sentencing formulation:
    • (a) for the serious housebreaking, a starting point of 4 to 5 years imprisonment, reduced by 12 months for the early guilty plea resulting in a sentence of 3 to 4 years;
    • (b) for the theft, a sentence of 3 years and 3 months to be served concurrently with the head sentence; and
    • (c) no suspension.

Presentence report

14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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

20. The relevant statutory maximum penalties are 10 years imprisonment for serious housebreaking^[1] and 7 years for theft.^[2]
21. 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.
22. 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.
23. 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:
    • (a) serious housebreaking – 5 years imprisonment;
    • (b) theft – 3 ½ years imprisonment.

Mitigation

24. For the Defendant’s early guilty plea and partial co-operation with police, those starting points are reduced to:
    • (a) serious housebreaking – 4 years imprisonment;
    • (b) theft – 3 years imprisonment, to be served concurrently with the head sentence.

Suspension

25. 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.
26. 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.”

27. 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.
28. 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].
29. According to his criminal record, the Defendant has not yet received the benefit of any suspension of his previous sentences.
30. 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

31. The Defendant is convicted and sentenced for:
    • (a) serious housebreaking, to 4 years imprisonment; and
    • (b) theft, to 3 years imprisonment, to be served concurrently.
32. 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:
    • (a) not commit any offence punishable by imprisonment;
    • (b) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer; and
    • (c) (subject to having completed them in prison) complete courses in alcohol and drugs awareness and life skills 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.
34. 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

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^[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].