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R v Finau [2023] TOSC 49; CR 24-25, 27 & 85 of 2023 (20 September 2023)

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


CR 24-25, 27 & 85 of 2023


REX -v- MATENI MILA FINAU [CR 24 & 85/2023]

REX -v- MAIKOLO SINOTI [CR 25/2023]

REX -v- KALOLAINE FAINGA’A [CR 27/2023]


SENTENCING REMARKS


BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC
Appearances: Mrs ‘E. Lui for the Prosecution
The Defendants, in person
Date: 20 September, 2023


The charges

  1. On 28 February 2023, the First Defendant, Mateni Mila Finau pleaded guilty to one count of abetment to theft, contrary to section (8)(a), 143(b) and 145(b) of the Criminal Offences Act.
  2. The Second Defendant, Maikolo Sinoti pleaded guilty to one count of theft, contrary to section 143(b) and 145(b) of the above stated Act.
  3. The Third Defendant, Kalolaine Fainga’a pleaded guilty to one count of receiving stolen goods, contrary to section 148(1) of the said Act.

The Offending

  1. On Saturday 4 June 2022, on or around 10 pm, the Complainant, Lopeti Fakalata, a 38 year old male from Kolomotu’a returned to his home at Kolomotu’a and discovered that his vehicle, a silver Honda van, registration number L-26495, valued at $23,000 was missing.
  2. On the Friday night before, the Complainant had lost his car keys and was unable to use his van. Unknown to the Complainant, his car keys fell right outside his gate and was found by the First Defendant, Mateni Mila Finau. He then approached the Second Defendant, Maikolo Sinoti and another in front of the Costlow store at Kolomotu’a and asked if they would steal the Complainant’s vehicle.
  3. An argument ensued at first but the Second Defendant eventually agreed to enter the Complainant’s premises and steal the said vehicle. The First Defendant warned the Second Defendant to look out for an elderly man at the Complainant’s residence.
  4. The Second Defendant took the car keys from the First Defendant and drove out in the Complainant’s vehicle from his driveway. He picked up the First Defendant and another and went for a drive to the Third Defendant’s, Kalolaine Fainga’a’s home at Tofoa. In exchange for the vehicle the Third Defendant gave them smokes and $50.
  5. The Third Defendant used the vehicle and abandoned it at Tokomololo near the Government Primary School.
  6. On 5 June 2022, the Complainant lodged a complaint with the Police.
  7. On 6 June 2022, the Police located the Complainant’s vehicle at Tokomololo.
  8. The Police later arrested the Defendants for questioning and charged them with the offending.
  9. The Second and Third Defendants cooperated with Police and admitted to the offending. The First Defendant exercised his rights to remain silent.

CR 85 of 2023


  1. On 19 July 2023 the First Defendant pleaded guilty to one count of serious housebreaking and one count of theft.
  2. The complainants, Sateki and Sesika Afu live at Ha’ateiho next door to the Defendant’s in-laws where he was residing at the time. The Defendant admitted to breaking into the complainants’ house and stealing the relevant Tongan crafts. The stolen items consisted of:
ITEM
VALUE
2 X 40 ft fihu
$5,000
5 ngafingafi
$4,400
10 white waistmats
$9,800
3 ta’ovala fau
$2,100
1 falavala
$1,000
2 vala to’onga
$3,000
2 ta’ovala Vanuatu
$1,200
1 kiekie pulu
$100
2 ta’ovala kuta
$1,400
1 ta’ovala niti fau
$500
1 fala kie & fau 15
$2,500
1 ta’ovala faka’ahu
$300
1 ta’ovala putu
$200
2 watches
$60
1 kafa pulu
$300
TOTAL
$31,860

  1. After stealing the said items, the defendant and his wife solicited the assistance of one Lesina Fa’aui at Fasi to sell some of the items pretending the said items belonged to the Defendant’s wife, Lose. Lesina was able to sell 3 white mats to one Simi Kolo at Lapaha for $1,300, 1 white mat and 1 ngatu to Fakatoumafi loan business at Veitongo for $1,100. The Defendant left 5 mats, 2 ngatus and 3 waist mats with a Keni Moala at Tokomololo as security for a loan of $300. Mr. Moala needed money and sold on the waist mats to a Fusi Kalonihea. The Defendant and his wife used 1 fihu fatufa as security for a loan of $600 from another loan business known as OBRIEN at Patangata, owned by a Sione and Losa Mafi.
  2. The Defendant initially lied about seeing a person breaking into the Afu’s home. He said he chased the said person who left some of the items behind and claimed he took and pawned them.
  3. The items sold to OBRIEN and Fusi Kalonihea were recovered and when pressed for the location of the rest of the items the Defendant chose to remain silent.
  4. The Defendants all have previous convictions.

Crown’s submissions

  1. The Crown considered the aggravating factors for ALL Defendants to be:
    1. seriousness of the offending;
    2. repeated property offenders;
    3. premeditation;
    4. For Mateni Finau, the added factors include value of the goods stolen, irreplaceable value of Tongan handicraft, breach of bail conditions in commission of the offence in CR85/2023 and outstanding goods to be recovered valued at $8,960.
  2. The Crown submits the mitigating features to be the defendants’:
    1. Age range;
    2. Early guilty plea;
    1. Signs of remorse;
    1. The stolen vehicle was recovered although there were damages; and
    2. For Mr. Finau, recovery of most of the stolen goods valued at $22,990;
    3. For Mr Sinoti, he was influenced by peer pressure which led to the offending;
    4. And Ms Fainga’a cooperated with Police.

Mateni Mila Finau


  1. The Crown referred to the following comparable sentences:
    1. Rex v Patelesio [2008] Tonga LR 26 – the accused pleaded guilty to abetment and theft of a government motor vehicle and the subsequent concealment of his identity. He was a first offender and expressed remorse by apologizing for his offending. He was sentenced to 9 months imprisonment, fully suspended for 1 year on the condition that he completes 80 hours community service.
    2. Rex v Tevita Fifita CR 74 of 2018 – the accused pleaded guilty to serious housebreaking and theft of $21,664.12 in cash. He was sentenced to 2 years imprisonment for the theft to be served concurrent.
    1. R v Maikolo ‘Ealelei CR 162 of 2018 - the accused pleaded guilty to serious housebreaking and theft of Tongan goods valued at $34,269. He was sentenced to 2 ½ years imprisonment for the theft, concurrent.

For CR 85 of 2023


  1. The Crown referred to these additional authorities:
    1. R v Akau[2021]TOSC 150 – the defendant broke into a store and stole goods valued at $21,044 whilst in custody. A starting point of 4 years, 6 months was set for the serious housebreaking and 3 years for the theft. The final sentence was 45 months imprisonment for the serious housebreaking, 30 months for the theft to be served concurrently. For escaping form lawful custody he was sentenced to 10 months imprisonment and 28 months for the serious housebreaking was added to the Defendant’s existing sentence. Given 8 months had been served, the remainder of 30 months was to be served at the end of the existing sentence.
    2. R v Vaiangina [2022] TOSC 54- the charges were for serious housebreaking and theft of mats worth $22,800. The seriousness of the offence, the value of the mats and the defendant’s recidivism, a starting point of 5 years increased by 1 year for disrespect to the Monarch and targeting of the Royal Palace was set, resulting in a starting point of 6 years for the serious housebreaking. A starting point of 3 years was set for the theft. The final sentence was 6 years for serious housebreaking and 3 years for the theft. A suspended sentence granted in the Magistrates Court was rescinded and the final year in that sentence added to the head sentence, resulting in a final sentence of 7 years imprisonment with the final 2 years suspended for 3 years on conditions.
    3. R v Mahe [2021] TOSC 30 – goods stolen totaled $34,000. The starting point of 4 years in Ealelei was adopted and uplifted by the Defendant’s recidivism, resulting in 5 years starting point for the serious housebreaking and 2 years imprisonment for the theft to be served concurrently with the serious housebreaking charge.
  2. After the Defendant pleaded guilty in CR 85/23 the Crown, filed supplementary sentencing submissions. For the instant case, the Crown recommends a starting point of 2-2½ years imprisonment with a 6 months deduction for mitigation. It accepted a partial suspension was appropriate and suggested a final sentence of 2 years imprisonment.
  3. For CR 85/23 the Crown suggested a starting point of 4 – 5 years imprisonment with a reduction of 15 months in mitigation for the serious housebreaking charge as the headcount leaving a final sentence of 45 months.
  4. As to the theft charge the Crown suggested a sentence of 30 months imprisonment to be served concurrent to the serious housebreaking charge.
  5. In consideration of the totality principle, the Crown submitted that 12 months of the sentence in CR24/23 be added to the Defendant’s existing sentence of 6 months imprisonment and 24 months of the sentence in CR85/23 be added to the balance of the existing sentence as well, resulting in an aggregate sentence of 36 months imprisonment for these two matters.
  6. The Crown suggested the final 12 months of the aggregate sentence be suspended and the sentences imposed in these two matters to commence at the end of his existing sentence.


Pre-Sentence Report

  1. The Defendant is 27 years old and is the eldest and only son of his family. He has 3 siblings and is an illegitimate son of his mother before she married. He had a stable upbringing where his mother and step-father were actively present from his infancy to adulthood. He attended Tupou College in 2008-2014 and completed a 2 year course on carpentry in Technical School.
  2. The Defendant married Lose Fahina Finau in 2018 and she has returned to her parent’s home at Ha’ateiho whilst the Defendant was remanded in custody. He and his family are active members of the Free Wesleyan Church. He is generally healthy and unemployed.
  3. The Defendant is neighbours with the Complainant. He has previous convictions was sentenced to 6 months imprisonment at the Magistrate Court. The Defendant was reported to be truly remorseful and had apologized to the Complainant.

Starting Point


  1. The maximum penalty for the offence of abetment, is the same as theft, and in this case is 7 years imprisonment. The maximum penalty for serious housebreaking is 10 years imprisonment.
  2. The Court of Appeal in Mo’unga[1] held that;

"... imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary."

  1. In R v Kolomalu[2] , factors of trust, the amount of money involved and systematic offending were unusual circumstances that rendered imprisonment necessary. The courts have since adopted this position which I intend follow here.
  2. For the instant case, having regard to the seriousness of the offence, the value of the stolen items and the impact on the complainant despite the vehicle being recovered and the systematic targeting of neighbours property in my view, constitute unusual circumstances that warrant imprisonment. I have considered the comparable sentences and sentencing objectives of deterrence and protection of the community and set a starting point of 2 years imprisonment. I lift it by 6 months for targeting his neighbour.
  3. For CR85/23, the Defendant at the commission of that offence was living at his wife’s parents home. The complainant was again, a neighbour. Having regard to the seriousness of the offence, the value of the stolen items, partial recovery of the tongan crafts and the sequential proximity of this offending to the instant matter, the principles of deterrence and protection of the community I set a starting point of 4 years imprisonment lifted by 1 year for his recidivism and repeated offending against a neighbour, resulting in a starting point of 5 years for the serious housebreaking (head count) and 2 years and 6 months for the theft.
  4. For his early guilty pleas and cooperation with the police I deduct 25% off the starting points resulting in final sentences for both matters of:
    1. CR 24/23 - Abetment to theft - 22 months imprisonment
    2. CR 85/23 – serious housebreaking (head count) – 45 months imprisonment
    1. - theft (count 2) - 22 months imprisonment to be served concurrently to (b).
  5. I accept the Crowns submission that these offendings are distinct in nature. The Defendant’s previous convictions are also for theft and conspiracy to commit theft. I note that the conviction in the Magistrate Court and these two offences were committed within a period of 5 months and can hardly be characterised as closely connected to be regarded as one course of criminal activity.
  6. Having said that I am mindful of the need to impose a sentence to reflect the Defendant’s recidivism with a degree of caution so as not to impose a sentence that is crushing in its length.
  7. For that purpose, I agree and adopt the Crown’s position by adding 12 months of the sentence in the instant matter and 24 months of the sentence for serious housebreaking in CR 85/23 to the Defendant’s existing sentence of 6 months imprisonment, resulting in an aggregate sentence of 42 months.

As against the principles in Mo’unga v R, the Defendant is young, has cooperated with the police and expressed remorse. For that, I suspend the final 12 months of his sentence for 2 years on conditions.


Result


  1. Mateni Mila Finau is convicted of:
    1. Abetment to theft and sentenced to 22 months imprisonment; and
    2. Serious housebreaking and sentenced to 45 months imprisonment; and
    1. Theft and sentenced to 22 months imprisonment to be served concurrently to b).
  2. To his existing sentence of 6 months imprisonment in June, 2023, 12 months of his sentence in the present matter and 24 months from his sentence in CR 85/23 shall be added resulting in a total sentence of 42 months imprisonment.
  3. The final 12 months of the sentence is to be suspended for a period of 2 years on condition, that during the period of suspension, Mateni is to:
    1. not commit any offence punishable by imprisonment;
    2. report to the probation officer within 48 hours of his release from prison and thereafter as directed by her probation officer;
    1. not use or consume drugs or alcohol; and
    1. complete a life skills course as directed by her probation officer.
  4. The Defendant will serve a total of 30 months imprisonment for all 3 cases with the sentences imposed in the instant matter and CR85/23 to commence at the end of his existing sentence. The balance of these sentences will be served concurrently.
  5. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the unserved portion of his sentence.

Maikolo Sinoti


  1. The Crown referred to the comparable sentences set out at paragraphs 27 and 28(g) above.
  2. For this Defendant, the Crown recommends a starting point of 2 ½ - 3 years imprisonment with a 6 months deduction for mitigation. The Crown accepted a partially suspended sentence was appropriate and suggests a final sentence of 2 ½ years imprisonment with the final 18 months suspended on conditions.

Pre- sentence Report


  1. The Defendant is 32 years old and is the youngest of eight children. His parents divorced when he was an infant. His father travelled abroad and made no further contact with his mother. He attended GPS Leimatu’a and completed class 6. His mother and siblings migrated abroad leaving him and one sister in Tonga. They are not on good terms because of his association with negative peers and behaviour. He belongs to the Pentecostal church but is not an active member.
  2. The Defendant is married to Asinate Tupa of Fangaloto and they have a son. His wife and son travelled to New Zealand in 2015 and have not returned or maintained contact with him.
  3. He is healthy and is unemployed with no means of supporting himself. He was previously employed on a Chinese fishing boat earning $7000 after two or three months of work.
  4. The Defendant admits that drugs, alcohol and peers influence his involvement in criminal activities.
  5. He regrets committing the offences and wants to live a drug free life.
  6. The probation officer ranks the Defendant as high risk for re-offending if he continues to associate with negative peers and his being a repeated offender. The officer recommends a residential order to prevent his association with peers under the supervision of his sister.
  7. A partially suspended sentence was recommended on conditions.

Starting Point


  1. The maximum penalty for theft is 7 years imprisonment.
  2. Having regard to the seriousness of the offence and the impact on the complainant despite the vehicle being recovered, the comparable sentences and sentencing objectives of deterrence and protection of the community I set a starting point of 2 years 6 months imprisonment.
  3. For his early guilty plea and cooperation with the police I deduct 8 months off that starting point resulting in a final sentence of 22 months imprisonment.
  4. As against the principles in Mo’unga v R, the favourable elements for the Defendant is his cooperation with the police and expressed remorse. I suspend the final 10 months of his sentence for 2 years on conditions.

Result


  1. Maikolo Sinoti is convicted of theft and is sentenced to 22 months imprisonment.
  2. The final 10 months of his sentence is suspended for a period of 2 years on condition, that during the period of suspension, Maikolo is to:
    1. not commit any offence punishable by imprisonment;
    2. report to the probation officer within 48 hours of his release from prison and thereafter as directed by his probation officer;
    1. not use or consume drugs or alcohol; and
    1. complete a life skills course as directed by his probation officer.
  3. The Defendant will serve a total of 12 months imprisonment to commence at the end of his existing sentence in CR118/2022.
  4. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the unserved portion of his sentence.

Kalolaine Fainga’a


  1. The Crown referred to the following comparable sentences:
    1. Rex v Ma’ake Kali, CR 211 of 2019 – the Defendant had failed to abide by the conditions of an earlier suspended sentence. He was sentenced to 2 years imprisonment on the count of receiving with the final 21 months to be served cumulatively with the remaining 9 months of his earlier suspended sentence; total 30 months.
    2. R v Siaki Tongatu’a, CR 95 of 2018 – the Defendant pleaded guilty to receiving and was sentenced to 2 years imprisonment with the final 6 months to be served cumulatively upon a 5 year sentence he was currently serving on another matter.
    1. R v ‘Ana Tauvaka [2021] TOSC 174 (10 November 2021) – the accused pleaded guilty to receiving large electronic devices (washing machine anors), the total value of goods she received was $14,714.50 and some worth $13,425.50 of goods were recovered due to her cooperation with police. She was sentenced to 2 years imprisonment, fully suspended on conditions.
  2. For this Defendant, the Crown recommends a starting point of 2-2 ½ years imprisonment with a 6 months deduction for mitigation. Like the others, a partially suspended sentence was recommended. A proposed final sentence of 2 years imprisonment with the final 9 months suspended on conditions was suggested.
  3. It came to light after the Crown’s initial sentencing submissions were filed that the Defendant was then serving a sentence of 2 years imprisonment with the final 8 months suspended for 2 years on conditions for serious housebreaking and theft under CR 195/2021.
  4. The offence in CR195/2021 was committed on 8 June 2021 whereas the current offending was committed on 4 June 2022. She was sentenced on 1 August, 2022 for CR195/2021 which means that she committed the present offending while on bail for CR195/2021. The Crown considered this as an aggravating factor.
  5. However, the Crown submitted that taking into account the Defendant was released on 18 June 2023 as a result of her participation in the remission program, its initial sentencing submission in line with its Indicative Sentencing Submissions filed on 21 February, 2023 was maintained.
  6. That recommendation was for a sentence of 2 years imprisonment with 9 months suspension. Resulting in the Defendant serving a total of 1 year and 3 months imprisonment.

Pre-sentence report


  1. The Defendant is 31 years old and is the second of nine siblings. She grew up in a religious household where both her maternal and paternal grandparents are Ministers of the Church of Tonga. She had a stable upbringing and attended Liahona High School completing 5th form. She accepts her personal choices has led her to Hu’atolitoli Prison.
  2. She is married to Paea Fainga’a, a repeated offender of Kanokupolu from a young age. They share four children ages 3 to 14. The two youngest aged 7 and 3 is cared for by the Defendant’s sister. The second child has been adopted by a relative and the eldest child’s care is shared between the two families.
  3. As her husband was in and out of prison for drug related offences, the Defendant engaged in the Government Seasonal Scheme after three of their children were born to earn an income. On her return from that engagement she began using drugs which led to criminal activities. Apparently she has not seen her husband since her imprisonment.
  4. In 2021, she was apprehended for attempting to commit suicide and claims that she was living a very difficult and problematic life. She is currently serving imprisonment in Hu’atolitoli prison.
  5. She is reportedly remorseful and her time in custody has allowed her to reflect on her life, her neglect for her children and responsibility as a mother.
  6. The Probation Officer opined that it is possible for her to be a good mother to her children if she attends rehabilitation.
  7. A fully suspended sentence was recommended on conditions:

Starting Point


  1. The maximum penalty for the offence of receiving is the same as theft, 7 years imprisonment.
  2. Having regard to the seriousness of the offence and the impact on the complainant despite the vehicle being recovered, the Defendant’s use of the vehicle and abandonment of the same, the comparable sentences and sentencing objectives of deterrence and protection of the community and property, I set a starting point of 2 years imprisonment.
  3. In mitigation I adopt the Crown’s position of a 6 months deduction for her early guilty plea and recovery of the vehicle, resulting in a final sentence of 22 months imprisonment.
  4. Section 24(3) of the Act gives the Court jurisdiction to suspend the whole or part of the sentence for any period up to three years. The criterias considered in deciding whether a sentence should be suspended as set out in Mo’unga v R [1998] Tonga LR 154 and regularly applied by the courts may be summarized as:
    1. a suspended sentence is intended to have a strong deterrent effect;
    2. if the offender is incapable of responding to a deterrent, it should not be imposed;
    1. the circumstances in which a suspension of sentence may be appropriate include:
      • (i) where the offender is young, has a previous good record, or has had a long period free of criminal activity;
      • (ii) where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself;
      • (iii) where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender; and
      • (iv) where there has been cooperation with the authorities[3].
  5. I have read and pondered long and hard on the Pre-sentencing report and its recommendation for the Defendant’s sentence to be fully suspended. I have considered the following relevant issues highlighted in that report:
    1. the influence her now divorced husband’s drug use had on the Defendant,
    2. the attempt to take her own life,
    1. her early release from prison as a result of the prisons remission program,
    1. her remorse and change as observed by Prison Officer Fotofili,
    2. her realisation of her neglect of her children and expressed desire to be a better mother to them, and
    3. the good support system she has in her parents and siblings who are willing to stand by and support her.
  6. I am persuaded that her early release from prison and realisation her neglect of her children and desire to be a better person indicate her ability to respond positively to the deterrent effect of a suspended sentence. In light of the attempted self-harm, I consider her vulnerable and sending her back to prison may not be ideal for her at this point in her life. There is to some extend a diminution of culpability in that she used the vehicle and then left it and she cooperated with the police.
  7. For those reasons, with a degree of caution, I suspend the Defendant’s sentence in full on conditions. With the support of her family, the Defendant should take this opportunity to fully rehabilitate herself. She is to understand that this opportunity is unlikely to be available if she appears before any of the courts in future.

Result

  1. Kalolaine Fainga’a is convicted of receiving and is sentenced to 22 months imprisonment to be fully suspended for a period of 2 years on condition, that during the period of suspension, Kalolaine is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    1. reside where and as directed by her probation officer,
    1. not use or consume drugs or alcohol;
    2. complete a life skills course as directed by her probation officer; and
    3. complete 80 hours of community service under the supervision of her probation officer.
  2. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve this sentence.
NUKU’ALOFA
P. Tupou KC
20 September, 2023
Acting Lord Chief Justice

[1] [1998] Tonga LR 154 at 156
[2] [2012] TOSC 25
[3] R v Afeaki

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