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R v Tatafu [2023] TOSC 32; CR 53 of 2023 (13 June 2023)

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


CR 53 of 2023


REX
-v-
TEMIPALE TONGA TATAFU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs ‘E. Lui for the Prosecution
Ms A. Kafoa for the Defendant
Date: 13 June 2023


The charges

  1. On 2 May 2023, the Defendant pleaded guilty to one count each of serious housebreaking, serious wilful damage and theft.

The offending

  1. At the relevant time, Lata ‘I Lomoloma ‘Afa Tonga and Litiane Tatafu were living in a de-facto relationship at Fangaloto. Litiane is the estranged wife of the Defendant.
  2. On the evening of 9 September 2022, Lata and Litiane were on their way to Vaini, in a vehicle owned by Viliami ‘Iongi, to collect Litiane’s children (with the Defendant) to go to Haveluliku. When they arrived, an argument erupted with the Defendant. During the argument, the Defendant lunged at Lata to beat him and then started smashing the vehicle. Lata ran to a house belonging to some of his relatives at Vaini while Litiane escaped to their home. The Defendant got into the vehicle and drove off.
  3. At approximately 11 pm, Lata’s sister, Elizabeth Laota Moimoi (“Laota”), was at her house which is located behind Lata’s house when she noticed a vehicle park in front of Lata’s house. Laota went outside and saw the Defendant get out of the car. He then removed louvres from a window to Lata’s house, climbed inside and smashed electronic equipment and other items belonging to Lata. Laota was scared. She called her mother to inform Lata of what was happening. Lata told Viliami that the Defendant had smashed his car. Viliami went to the Defendant’s house. When the Defendant eventually returned, Viliami got in his vehicle and drove away.
  4. When Lata returned to his house, he found that a number of his electrical appliances, including computers and sound equipment had been damaged. Those items were valued at $14,050. He also identified that an electric drill (valued at $700) and security camera equipment (valued at $2,500) had been stolen. Viliami found the drill in his vehicle and returned it to Lata.
  5. On 12 September 2022, Lata lodged a complaint with the Police. On 26 October 2022, the Police arrested the Defendant, whereupon he admitted to the offending because “he was angry”. He also admitted leaving the drill inside the vehicle but said that he threw the camera into the sea at Tofoa.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown relies on the following comparable sentences:
  4. In this case, the Crown submits the following sentencing formulation:

Presentence report

  1. The Defendant is 36 years of age. He is the second youngest of eight children. He grew up in a decent family, all active members of The Church of Jesus Christ of Latter Day Saints. His parents are deceased.
  2. In 2010, he married Litiane. They have four children. Their marriage suffered problems, and as noted above, they separated.
  3. In 2020, the Defendant graduated from the University of the South Pacific with a double major in Computer Science and Information Systems. Since November 2022, he has been employed by Tonga Post at Vaololoa as an Information and Technology Officer.
  4. In relation to the offending, the Defendant confirmed to the probation officer the version of events recorded in the summary of facts and that he was solely motivated by anger at seeing his estranged wife with the complainant to pick up their children to whom he only has access on weekends. He expressed regret and remorse for his offending, a desire to apologise and a hope of reconciliation.
  5. A reference from the Defendant’s employer and other correspondence concerning his recent appointment as a representative for the Pacific region by Universal Postal Union based in Switzerland and an invitation for him to attend an international narcotics counter-trafficking conference in Austria in September 2023, were included with the presentence report and have been considered.
  6. However, and contrary to the Crown’s submissions, the probation officer recorded that the Defendant has a previous conviction while he was employed by Westpac Bank. No further details were provided.
  7. The probation officer characterized the Defendant’s behaviour as “obviously out-of-character and fueled by his love for and jealousy over his estranged wife while he saw the complainant with her in the vehicle”. Notwithstanding the Defendant’s previous conviction, the probation officer expressed the belief that “every offender has a capacity to change and grow if given the opportunity, support, goodwill and understanding” and, on that basis, recommended that the Defendant’s sentence be fully suspended.

Defence submissions

  1. In addition to, or other than, the matters stated above, Ms Kafoa’s submissions may be summarised as follows.
  2. The Defendant’s children are living with him and he is their sole provider. Based on the decisions in ‘Ealelei,[1] Fifita,[2] Malafu,[3] Liku,[4] Lakalaka,[5] and Katoa,[6] an appropriate starting point is 2 years imprisonment. As the offences are connected, the sentences must be concurrent.[7] Mitigating features include that the Defendant is a “[f]irst offender, in this kind of offence”. By reference to the factors for suspension discussed in Mo’unga [1998] Tonga LR 154, the Defendant is “eligible for a full suspension of his sentence” because:
  3. Ms Kafoa also filed letters of support from Sosefo Hehea, the Vaini Town Officer, and Bishop Eneasi Fa’uhiva of Vaini. Both spoke highly of the Defendant, his character, his standing in the community, contributions to his church and support of his children.

Starting points

  1. The maximum statutory penalty for serious housebreaking is 10 years imprisonment.[8] That the penalty is among the highest for offences against property in Part X of the Criminal Offences Act reflects the seriousness with which Parliament views offending of this kind. As Paulsen LCJ observed in Rex v Vaka [2017] TOSC 27, “[h]ousebreaking is a very common but also very serious offence in Tonga and is often a precursor for violent offending. The Courts have an obligation to protect persons from being victims of crime in their own homes and deterrence and the protection of society are principal sentencing considerations in cases of this kind”.[9] Therefore, in my view, the sentencing imperatives of denunciation, deterrence and community protection attract greater emphasis for offences such as serious housebreaking.
  2. The legislation does not define the differences between simple and serious housebreaking. That discretion appears to have been left to the Director of Public Prosecutions. In the DPP’s General Instructions No.1 of 2015, several factors are prescribed by which an offence of housebreaking will be charged as serious.[10] They include, as is the case here, where the accused is over 21 years of age[11] and is charged also with a serious property offence arising out of the same circumstances.[12]
  3. As noted by the Crown, the Court of Appeal in Mo’unga v R [1998] Tonga LR 154 held that imprisonment for purely property offences is not appropriate unless there are unusual circumstances that render imprisonment necessary. Here, neither party submitted that a sentence of imprisonment was not appropriate, but rather that it should be fully suspended. That question will be considered further below. In my view, the Defendant’s previous convictions, to which I will also return further below, and the combination of serious wilful damage and theft following the serious housebreaking here, render imprisonment necessary.
  4. The comparable sentences referred to by both counsel generally indicate a range of starting points for serious housebreaking of between 2 and 4 years imprisonment. The details provided by Ms Kafoa of the decisions by Cooper J. in Lakalaka and Katoa were insufficient to understand how his Honour arrived at those starting points. The point set in Katoa of 14 months falls below the median range set by numerous decisions of this Court and the Court of Appeal and, with respect to his Honour, appears to have been based almost entirely on the relatively modest value of the goods stolen.
  5. Many of the comparable sentences for serious housebreaking indicate variances in starting points seemingly based on the value of goods stolen as a result. In my view, the value of goods stolen may be relevant to, but cannot be determinative of, the appropriate starting point for sentences for serious housebreaking for the simple reason that the often-conjoined charge of theft carries its own maximum statutory penalty and a range of starting points developed over the years determined predominantly by the value of the unrecovered stolen property. Variables other than the value of property stolen also account for the general established range, including whether the break in occurred at night (when occupants and their property are more vulnerable), whether the occupants of the residence were home at the time, whether violence was inflicted on them (although that too will often constitute a separate offence), whether the offender has previous convictions for similar offending, and so on.
  6. The seriousness of the offending here is marked by the fact that, after seeing his wife and the complainant together, the Defendant drove to the complainant’s house, in a car that did not belong to him, with a clear intention to harm the complainant by damaging several items of his property and stealing others. That he may have been motivated by jealousy does not detract from the seriousness of entering the complainant’s residence, without permission, and with intent to commit serious crime therein.
  7. Having regard to all those considerations, I set a starting point for count 1 of 3 years imprisonment.
  8. The maximum statutory penalty for theft (where the value of the goods stolen does not exceed $10,000) is 3 years imprisonment.[13]
  9. On the assumed basis that the electric drill Viliami found in his vehicle and returned to the complainant was the only drill taken by the Defendant, then the value of the CCTV cameras not recovered was $2,500. In that regard, I do not accept Ms Kafoa’s submission that the Defendant co-operated with the authorities “by returning the properties to the owner”. He pleaded guilty to the facts as alleged by the Crown which included telling police that he threw the cameras into the sea. Therefore, by that value, and the range indicated by the comparable sentences referred to above, I set a starting point for count 2 of 12 months imprisonment.
  10. The maximum statutory penalty for serious wilful damage is a $20,000 fine, 7 years imprisonment, or both.[14]
  11. The rationale for the Crown’s characterisation of the wilful damage here as being serious is unclear. Again, the relevant provision of the Criminal Offences Act does not define serious versus simple wilful damage which carries a lesser maximum penalty of 2 years imprisonment, a $5,000 fine or both. The DPP’s General Instructions No.1 of 2015 provide, relevantly,[15] that the charge will be serious where the value of the damage exceeds $3,000[16] or the accused is charged with damaging “a number of property”.[17] The indictment and summary of facts only refer to the value of the goods damaged as being $14,050. They do not specify the value of the damage to those goods or whether, for instance, they were totally destroyed or rendered beyond repair or salvage such that their market value is a proper measure of the damage done. The Crown did specify, however, that some 12 items were damaged. Therefore, on that basis, I am satisfied that this count is properly one for serious wilful damage. However, I consider it appropriate to give the benefit of the doubt or lack of clarity about the value of the damage caused to the Defendant. I note in passing that the Defendant has also had the benefit of not being charged with stealing Viliami’s vehicle or damaging it.
  12. In those circumstances, I set a starting point for count 3 of 2 years imprisonment.

Mitigation

  1. Ms Kafoa did not enumerate any discount or reduction for mitigation. The Crown’s submission of a reduction of 15 months in mitigation from a submitted starting point of 3 to 4 years equates to between 31% and 41% off. The submission was evidently based on the Defendant’s early guilty plea and a belief that he has no previous convictions. Even then, on a 3-year starting point, the submitted discount is overly generous: cf Tupa v R [2021] TOCA 8 at [27] to [29].
  2. The presentence report vaguely referred to the Defendant having a previous conviction when he worked for Westpac. That information no doubt came from the Defendant. Ms Kafoa’s submissions were even more elliptical when she alluded to the possibility of previous convictions by describing the Defendant as “a first offender for this kind of offence”.
  3. In light of the conflicting and opaque accounts of the Defendant’s criminal history, I caused a search of the Court records to be undertaken which revealed that in proceeding CR 11 of 2013, the Defendant belatedly pleaded guilty to embezzlement and theft of a total of $6,958.79 while working as a foreign teller at Westpac Bank. The Crown submitted a starting point of 3 years imprisonment, discounted for mitigation, with some suspension. On 21 June 2013, Cato J. sentenced the Defendant to 9 months imprisonment for the embezzlement, fully suspended for 2 years on conditions and 100 hours community service for the theft. The file does not contain any reasons or sentencing remarks.
  4. Even though those offences occurred approximately 10 years ago, they were offences of dishonesty. Of the instant offences, I consider the serious housebreaking and theft to also involve dishonesty. Therefore, any discount which might have been available by virtue of the Defendant’s early plea and assumed clean record must be attenuated by the fact that he has previous convictions in this Court for offences of dishonesty.
  5. In those circumstances, I reduce the starting points to the following sentences:
  6. I agree with both counsel that the sentences for counts 2 and 3 should be served concurrently with the head sentence for count 1.

Suspension

  1. It is a rare case in which a Court will consider departing from the submissions of the Crown and Defence, and recommendation of the probation officer for a prison sentence to be fully suspended. However, in this case, those submissions are infected by misconceptions of fact and/or principle.
  2. Starting with the Mo’unga factors:
  3. Even if that mixed result were more favourable to the Defendant, I do not accept Ms Kafoa’s submission that the Defendant would therefore be automatically eligible for full suspension. As stated recently in Losalu v R [2022] TOCA 24:[18]
“[9] ... Where the considerations for suspension in Mo’unga are met (which may be assumed here), it does not automatically follow that a sentence must or should be fully suspended. Those considerations are not the only factors. Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her”.
  1. Further, it is erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise: Tafea v Rex [2010] TOCA 20.[19]
  2. In relation to the personal circumstances of the Defendant or those dependent on him, it is not clear whether he has primary custody of his children. The presentence report referred to him having access on weekends whereas Ms Kafoa’s submissions referred to the children living with him at his home. In any event, the further reference to the Defendant being the children’s sole provider (often referred to as the “breadwinner plea”) cannot, on its own, attract any significant weight on the issue of whether to fully suspend the sentence for the reasons repeatedly stated by the Courts, most recently, in Fonokalafi [2022] TOSC 92 at [38]. There is also no evidence that their mother, Litiane, is incapable of caring for them.
  3. Whether the Defendant is likely to take the opportunity offered by a suspended sentence to rehabilitate himself is almost always an exercise in prognostication often based on little tangible evidence. Here, the Defendant has had a significant period free of crime, is in good employment, appears to be doing well in other related professional endeavours and has four young children. They are all factors which provide optimism for rehabilitation. However, as the Court of Appeal stated recently in Attorney General v Angilau [2022] TOCA 9:
“[25] To fully suspend a sentence for a serious crime solely because the offender has, since being charged for the offending, shown signs of rehabilitation, runs the very real risk of failing to consider, and formulate a sentence which gives effect to, other sentencing objectives such as punishment, specific and general deterrence, denunciation, recognition of the effects on, and protection of, the community ... All of those must be balanced with the interests of the offender and the community in arriving at a sentence which also provides for rehabilitation - not one which only provides for rehabilitation.”
  1. After weighing all those considerations, I have come to the view that it is not appropriate to order that the sentence be fully suspended. To do so, in all the circumstances, would risk sending an erroneous message to the community that the Courts tacitly condone or acquiesce to behaviour of this kind, which is most certainly not the case. In my view, the proper balance between the Defendant’s interests and his rehabilitation on the one hand, and the community’s interests and the other sentencing objectives referred to, on the other, may be struck by a significant portion of the sentence being suspended.

Result

  1. The Defendant is convicted on:
  2. The sentences for counts 2 and 3 are to be served concurrently with the head sentence for count 1.
  3. The final 15 months of the sentence are to be suspended for a period of 2 years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, he is to:
  4. 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
13 June 2023
LORD CHIEF JUSTICE

[1] Unreported, CR 162/2018, Paulsen LCJ, starting point of 4 years for housebreaking and theft worth $34,269.

[2] Unreported, CR 74/2018, Cato J, starting point 3 years for stealing $21,664.12 in cash from a shop.

[3] CR 133/2016, referred to by the Crown above.

[4] Unreported, Supreme Court, CR 47/2019, 24 May 2019, starting point of 2 years for housebreaking and theft of electrical equipment valued at $13,900.

[5] Unreported, Supreme Court, CR 118/2021, 7 September, Cooper J, starting point of 2 years for housebreaking and 10 months for theft of $10,900 worth of computer equipment.

[6] Unreported CR 4/2021, starting point of 14 months for serious housebreaking and theft of $2,500 worth of goods.

[7] Citing Hokofonu v Rex [2003] TOCA 3.

[8] Criminal Offences Act, ss 173(5).

[9] [8]

[10] Section 10

[11] (10)

[12] (15)

[13] Criminal Offences Act, ss 145(a).

[14] Criminal Offences Act, ss 187(3).

[15] Section 15

[16] (4)

[17] (6)

[18] Citing Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.

[19] Citing Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68.

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