R v Nonu [2023] TOSC 36; CR 22 of 2023 (21 April 2023)

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

CR 22 of 2023

REX
-v-
PENISIMANI NONU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
Defendant in person

Date: 21 April 2023

Charges

1. On 1 March 2023, the Defendant pleaded guilty to:
   • (a) two counts of forgery contrary to ss 170(1)(a), (2)(b), (3)(a) and (4) of the Criminal Offences Act; and
   • (b) two counts of knowingly dealing with forged documents, contrary to s 172 of the said Act.

Offending

2. At the time of the offending, the Defendant was employed by the Ministry of Health as a Public Health Inspector Grade II. As such, he was authorised to conduct person and food inspections at retail and wholesale shops, and to issue Certificates of Registration to shop owners who passed their food inspection. However, the Defendant was not authorised to issue Health Certificates to shop owners that had passed their person inspection because he was not a Medical Officer.
3. On 28 January 2022, Hou Zhi Huang (‘Huang’), a Chinese shop owner from Tofoa, went to the Vaiola Hospital to arrange for the inspection of his shop. After paying the applicable fee of $155, he was given a receipt. He noticed the Defendant there and remembered him as one of the Officers who had previously inspected his shop. Huang asked the Defendant whether he could work on his Certificate of Registration and Health Certificate. The Defendant agreed. Huang gave him the receipt and the Defendant told Huang that he would drop the certificates to his shop.
4. At around 6 pm, the Defendant went to Huang’s shop and issued him with a Certificate of Registration and Health Certificate. However, the Defendant also gave Huang a Certificate of Registration dated 31 January 2022 and a Health Certificate dated 28 January 2022 for another person by the name of Mei Juan Ni. The Defendant also gave Huang a box of face masks and asked him for money for petrol. Huang gave him $40.
5. One to two weeks later, the Defendant went back to Huang’s store and asked for $200 to tend to his family needs. Huang gave him $100.
6. In May 2022, Huang went to Vaiola Hospital to renew his health certificates. It was then that Dr Joseph Takai identified that Huang’s certificates were forged. When Dr Takai asked Huang who issued him the certificates, Huang told him it was the Defendant.
7. On 18 May 2022, the Defendant voluntarily confessed his wrongdoing to his supervisor and the Chief Executive Officer of Health. The CEO considered the matter sufficiently serious to refer it to the Public Service Commission. The PSC regarded the Defendant’s actions as serious misconduct and referred the matter to Police. The Defendant was then charged, arrested and remanded in custody. He co-operated with the Police and admitted to the offending.

Previous convictions

8. In March 2011, the Defendant was convicted of assault and fined $200.
9. In September 2011, he was convicted again of assault and fined $300.
10. In April 2021, he was convicted of possession of drugs and utensils and fined $400.
11. In 2022, the Defendant was charged with another drug related matter (CR 24/2022) in the Enhanced Jurisdiction of the Magistrate Court. On 11 April 2023, the Crown offered no evidence and so the summons was dismissed.

Crown’s submissions

12. The Crown submits the following as aggravating features of the offending:
    • (a) the Defendant is not a first-time offender;
    • (b) he knew he was not authorised to issue health certificates;
    • (c) the offending involved not one but two health certificates.
    • (d) as a Health Inspector, he had a fiduciary duty to the Ministry of Health, which he breached; and
    • (e) his actions showed a reckless disregard for Health and Public Service policies, ethics and the law.
13. The Crown submits that the mitigating factors are the Defendant's guilty plea and co-operation with the Police.
14. The Crown referred to the following comparable sentences:
    • (a) Tevita Lemani (CR 70/2018) - The Defendant pleaded guilty to forgery and knowingly dealing with a forged document. He had altered his academic transcript, forged his signature and submitted the forged transcript purporting it to have been issued by the Ministry of Education to the Tonga National Qualification and Accreditation Board. As a result, the Defendant was employed by St Andrew's High School. When the forgery was later discovered, the Defendant was dismissed from his employment and charged. The Defendant had no previous conviction and he cooperated with Police. On the forgery count, he was sentenced to two years imprisonment and 15 months for knowingly dealing with the forged document to be served concurrently. The sentences were fully suspended.
    • (b) Malia Kolokiloloma Fanau (CR 75/2018) - The Defendant forged her USP exam results by falsely raising her grades for a number of subjects. She then submitted her forged grades to Tonga Police with the intention of convincing her Supervisors and the Police Commissioner that she deserved a promotion with a higher corresponding salary. The Defendant was convicted after trial on four counts of forgery and two counts of knowingly dealing with forged documents. A starting point of three years imprisonment was set with no discount for mitigation. However, Niu J fully suspended the sentence (for two years) because he regarded the Defendant as fulfilling all the criteria for suspension, including no previous convictions, that she was unlikely to re-offend and she could serve community service.
    • (c) Sione 'Ahohako (CR 35/2018) - The Defendant was employed as a Clerk and IT Technician at the Magistrate's Court. He dishonestly obtained the username and password of a Registrar to access the Vital Statistics Unit database of the Supreme and Magistrate Courts and forged a Birth Certificate of one Tivionale Fanua to Nalesoni Fonua. The forged birth certificate was used by Tivionale Fanua to obtain a new passport. The Defendant cooperated with Police and pleaded guilty early to a range of offences including forgery for which Cato J sentenced him to two years imprisonment, fully suspended on conditions including 100 hours community service.
    • (d) Pinela Talivakaola (CR 114/2016) - The Defendant, a first-time offender, lodged an application for a visitor visa to New Zealand Immigration falsely using the name and details of a person who was currently in New Zealand, with the only difference being his identification photograph. He pleaded guilty to a number of offences including forgery and knowingly dealing with a forged. He was sentenced to 18 months for the forgery and 12 months for knowingly dealing with a forged document. The sentences were fully suspended on conditions including 90 hours community service.
15. The Crown submits the following as an appropriate sentencing formulation:
    • (a) a starting point of three years imprisonment in line with that set in Malia Fanua, who, like the Defendant here, was a government servant, in a position of trust, who abused their position;
    • (b) reduced by 12 months for the Defendant's guilty plea and co-operation with Police; and
    • (c) despite the Defendant’s youth and co-operation, only the final 12 months of the resulting sentence should be suspended on conditions because:
      • (i) unlike the above cases where the sentences were fully suspended for defendants who were of good previous character, the Defendant here has three serious convictions, the most recent being in 2021;
      • (ii) for which he received non-custodial sentences;
      • (iii) but he went on to reoffend here; and
      • (iv) he is therefore likely to reoffend again if given a fully suspended sentence.

Presentence report

16. The Defendant is currently 29 years of age. He is the youngest of four children. He had a good upbringing and a good education having completed Form 7 and, in 2019, a Certificate in Public Health.
17. Both his parents were long serving health workers in the Ministry of Health. His parents had marital problems which involved heavy alcohol use. The Defendant became caught up his parents’ difficulties. They reached the brink of getting a divorce, but the Defendant insisted that they remain together. His father passed away in 2020 and his widowed mother, who retired last year, resides with the Defendant at their family home in Havelu.
18. The Defendant is described by his brother as a good-hearted person who often looks out for his nephews and nieces. According to the town officer, the Defendant is also well regarded in his community.
19. He is the father of two illegitimate children who attend primary school and are being cared for by their maternal grandparents together with his financial support. He plans to marry his fiancée in the near future.
20. The Defendant entered the Ministry of Health as a Trainee Health Inspector in 2018/19 before being promoted to Health Inspector Grade II, a position which he continues to hold. His supervisor described the Defendant as a “bright person” with much potential to excel in his work. He has no previous instances of misconduct at work which makes this offending out-of-character. He was initially suspended but was reinstated in September 2022 with a final warning and counselling. His supervisor believes that the Defendant has learnt from his mistake and is unlikely to reoffend.
21. In relation to the offending, the Defendant claimed to have only issued the Health Certificate because the officer in authority was very busy during the Covid-19 outbreak. He told the probation officer he had ‘no ill-intention’ and only ‘wanted to help’.
22. According to the probation officer, the Defendant has expressed remorse, learnt his lesson, and is grateful to the Public Service Commission and Ministry of Health for reinstating his employment.
23. The probation officer assesses the Defendant as a “low risk of re-offending” and recommends probation with community service.

Starting points

24. The maximum statutory penalty for forgery is seven years imprisonment and five years for knowingly dealing with forged documents.
25. The key distinguishing feature between the instant offending and that the subject of the comparable sentences relied on by the Crown is that the Defendant here did not set out, initially at least, to obtain any financial advantage from the issuing of the certificates. In that context, his explanation to the probation officer has a ring of truth about it. It appears to have been an opportunistic afterthought to ask the recipient, Huang, for some money after the event. Huang could well have refused. Even then, the Defendant only received a total of $140. By comparison, the defendants in a number of the cases referred to above orchestrated their deception for the purpose of obtaining employment for promotion within employment which represented a great potential pecuniary advantage, at least until they were detected.
26. It is also noteworthy that, unlike a number of those cases, the Defendant’s employer has kept him on and, through his Supervisor at least, appears to have maintained confidence in not only his ability, but his integrity going forward.
27. In those circumstances, I place the present offending very much at the lower end of the spectrum of criminality for offences of this kind.
28. Accordingly, for each of the head counts of forgery, I set a starting point of two years imprisonment.

Mitigation

29. For the Defendant’s early guilty plea, co-operation with the authorities, and demonstrated remorse, I reduce that starting point to 18 months imprisonment.
30. By a commensurate approach (having regard to the differential in statutory maximum penalties) the Defendant is sentenced on each of the counts of knowingly dealing with forged documents to 12 months imprisonment.
31. All the sentences are to be served concurrently.

Suspension

32. Most of the factors discussed in Mo’unga v R [1998] Tonga LR 154 favour suspension. The Defendant is still young, and he fully cooperated with the authorities. Even though he does not have an unblemished record, he does not have any previous convictions for offences involving dishonesty and the two assaults are over ten years old. His reconciliation with his employer tends to indicate that he is likely to take the opportunity offered by a suspended sentence to rehabilitate himself. There is also some diminution of culpability through lack of premeditation.
33. Ultimately, the overarching consideration on this issue is whether suspension is likely to aid in the Defendant’s rehabilitation. In my view, it is. Therefore, his rehabilitation is, in turn, also likely to benefit the community.
34. The Crown contends that any suspension should only be partial because of the Defendant's criminal history. For the following reasons, I do not agree:
    • (a) requiring the Defendant to now serve a term of imprisonment would mean the end of his employment and there is no evidence to suggest that upon his release, he would be reinstated to his current position, or any other, which may well have a negative impact on his prospects of rehabilitation;
    • (b) he has shown genuine remorse and a determination to rehabilitate;
    • (c) he has not previously received any form of suspended sentence;
    • (d) this is his first conviction for dishonesty and, as noted above, the criminality involved was very much at the lower end of the scale;
    • (e) the whole of the sentences imposed will be hanging over his head for the duration of the suspension period and will thereby act as a strong deterrent against any further reoffending;
    • (f) the probation element of a fully suspended sentence is likely to provide valuable support and guidance for a relatively young man whose father has only recently passed away; and
    • (g) a punitive element may be achieved through community service.
35. I wish to emphasise, however, that should the Defendant not fully embrace this opportunity to reform, and should he commit any further offences punishable by imprisonment during this suspension period, then given his history to date, it is a virtual certainty that he will be required to serve the instant prison term in addition to any sentence for further offending.

Result

36. The Defendant is convicted of:
    • (a) two counts of forgery and is sentenced on each count to 18 months imprisonment; and
    • (b) two counts of knowingly dealing with forged documents and is sentenced on each count to 12 months imprisonment.
37. All the sentences are to be served concurrently.
38. The sentence is to be fully suspended for a period of two years from the date hereof on condition that the Defendant:
    • (a) not commit any offence punishable by imprisonment stomach:
    • (b) be placed on probation;
    • (c) report to the probation office within the next 48 hours and thereafter as directed by his probation officer;
    • (d) complete a life skills course as directed by his probation officer; and
    • (e) complete 50 hours community service, preferably, and if possible, within the health area, as directed by his probation officer.

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