R v 'Ulukivaiola [2023] TOSC 55; CR 6-8 of 2023 (30 October 2023)

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

CR 6-8 of 2023

REX -v- SIAOSI ‘ULUKIVAIOLA [CR 6/2023]

REX -v- VILIAMI TU’IPULOTU [CR 7/2023]

REX -v- HENELI MANUOFETA [CR 8/2023]

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
To: Ms. ‘E. Lui for the Prosecution
The Defendants, in person
Date: 30 October, 2023.

The charges

1. On 26 January 2023, the First Defendant, Siaosi ‘Ulukivaiola (“Siaosi”) pleaded guilty to one count of serious housebreaking, contrary to section 173(1)(b) and 5 of the Criminal Offences Act and one count of theft, contrary to section 143(a) of the said Act.
2. On 15 August, 2023, the Second Defendant, Viliami Tu’ipulotu (“Viliami”), was convicted after trial of one count of receiving stolen property, contrary to section 148(1) of the above-mentioned Act.
3. On the same date, the Third Defendant, Heneli Manuofetoa (“Heneli”) was also convicted of two counts of receiving stolen property, contrary to section 148(1) of the said Act.
   

Siaosi ‘Ulukivaiola (“Siaosi”)

4. On or about the night of 27 August 2022, Siaosi broke into the Ministry of Revenue office at Kolofoo’u through one of its windows and stole 5 laptops, a water blaster and other goods valued at $34,650.00.
5. The next day Siaosi “sold” 4 laptops to Heneli in exchange for smokes. On 29 August 2022, Siaosi took a 5^th laptop to Heneli’s residence to be unlocked. That day, the Police were heading to Heneli’s residence on a lead that Andy Tapa’atoutai for whom they were searching, was there. They met Heneli on the road at ‘Anana and followed him to his home.
6. At this time, the police were weary that Heneli was a suspect for a different housebreaking and theft incident. When the Police arrived at the Heneli’s residence, they found Siaosi and Viliami there with a number of laptops and other electronic devices.
7. The Police seized these electronic devices including the items stolen by Siaosi from the Ministry of Revenue’s office. Shortly thereafter, the Police received a complaint from the Ministry of Revenue. Staff from the Ministry were able to identify, 5 HP Laptops; 1 Samsung wall mounted flat screen and its remote control; 1 STIHL water blaster; 1 external hard drive; and 1 grey laptop bag stolen from their office.

Crown’s submissions

8. The Crown considered the aggravating factors for Siaosi to be:
   1. seriousness of the offending;
   2. substantial value of the goods stolen ($34,650);
   3. other damages to the Complainant’s office as a result of the offending;
   4. premeditation;
   5. habitual property offender.
9. The Crown submits the mitigating features to be Siaosi’s:
   1. Early guilty plea;
   2. Cooperation with police;
   100. Expressed remorse; and
   4. Most of the stolen items were recovered in good condition (valued at $30,500);
10. The Crown referred to the following comparable sentences:
    1. Rex v Kalolaine Fainga’a (CR206/2021) & Kisione To’aho (CR95/2021) TOSC 64 (1 August 2022) – the First Defendant was convicted of serious housebreaking and theft of a MacBook Pro laptop, iPad, 2-terabyte external drive, projector and accessories, 32-GB dual drive and other accessories, valued at $12,095 from the complainant’s home. He sold them on to the Second Defendant.
    2. LCJ Whitten considered the Court of Appeal’s recent decision in Valikoula v R [2021] TOCA 5;

“19... that does not automatically mean that in a case of a thief supplying stolen goods to a receiver, the receiver must receive the same sentence as the thief. There may be cases where the respective starting points differ by reference to differing levels of culpability...”

Cato J also held in ‘Ana Katokakala Siale (CR33, 39 of 2013, 25 July 2014) said that those who steal people’s possessions risk going to prison. The Court of Appeal has long held in Mo’unga v R [1998] TLR 154 that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary.

A starting point was set at 2 ½ years imprisonment for the serious housebreaking and 2 years for the theft. In mitigation 6 months was deducted, resulting in a final sentence of 2 years for count ` and 18 months for the theft to be served concurrently. The final 8 monhts of the sentence was suspended on conditions.

For the Second Defendant, the court refused to apply section 204 and said, that “it would also set a flawed precedent for future cases of receiving. An important sentencing objective in cases such as this is deterrence.” A starting point of 2 years was set for the charge of receiving reduced by 8 months for mitigation. The resulting sentence of 16 months imprisonment was fully suspended on conditions.

100. R v Maikolo ‘Ealelei [2019] TOSC 10 (15 February 2019) – the accused was convicted for serious housebreaking and theft of Tongan mats, electronic devices and personal items valued at $34,000. Only a portion was recovered (value of $12,000). A starting point of 4 years was set for the serious housebreaking, uplifted by 6 months for the aggravating features. By way of mitigation, 6 months was deducted. He was sentenced to 4 years imprisonment for the serious housebreaking and 2 years for the theft to be served concurrently to the headcount with the last 6 months suspended on conditions.

4. R v Tatafu [2023] TOSC 32 – the accused was charged with serious housebreaking and willful damage of property. The Court held at paragraph [25] that –

“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.”

Victim Impact Report

11. The Complainant reported that there were substantial losses incurred by the Ministry in relation to fixing the damages caused to the office building as a result of the First Defendant’s actions. The users of the stolen laptops were unable to conduct their work as a result of the theft. The laptops were also formatted causing a loss of data, however, their IT managed to restore the information. The items recovered, valued at $30,500, were in good condition.
12. The Crown recommended the starting point for Siaosi should range from 4 – 4 ½ years imprisonment to reflect the seriousness of the offending, his continuous disregard of the law and minimal chance of rehabilitation. For his early guilty plea, a deduction of 12 months and a further 3 months for the recovered items. This leaves a final sentence of 33-39 months imprisonment.
13. In line with Mo’unga, the Crown accepted that the Defendant is entitled to some suspension.
14. Overall, the Crown recommended a final sentence of 39 months imprisonment for the housebreaking charge. For the theft charge, the Crown recommended a final sentence of 2 years imprisonment, to be served concurrently. In terms of suspension, the final 9 months was recommended for 2 years on conditions.

Pre-sentence Report

15. Siaosi is 25 years old. He is the 5^th of 8 siblings and was raised in a Christian home. Financially, his family rented a shop on their land and his mother travelled to the United States in 2014 to work and remit funds back to the family.
16. He attended Tonga College and has completed the 2^nd year of a four-year Trade Certificate course at Fokololo Institute. He will continue the course depending on the outcome of his sentence for the present offending.
17. He is married to Lesieli of Pea with whom he shares 3 children ages 4, 3 and two months.
18. He is healthy. He works for Rapid Engineering at Fasi but because of his offending, he was told to return after his sentence. He presently works as a daily paid grower earning $50 per day.
19. The Defendant’s father knew his son committed the offending whilst he was drunk. He has noticed some changes in him since then. He wants his son to refrain from consuming alcohol and commit to his family. Mr Kavaliku, the town officer of Kolofo’ou, knows the Defendant’s family well as they are members of the Kolofo’ou community and made favourable comments about them.
20. The Defendant pleaded guilty and accepted the charges. He expressed his guilt and remorse and said he was drunk on the night of the offending and needed money for more alcohol. On his way home that night, he came across the Ministry of Revenue office and realized there is no security and committed the offence. He approximated that for the items he stole, he received $250. The items were returned when discovered and found by the Police.
21. The probation officer observed the Siaosi is a high risk to the community as he has no regard for other people’s property and now Government property. He repeatedly lied about his criminal history claiming he has never committed a crime demonstrating in her opinion no repentance or remorse. She said that, “he has a habit of weaving different kind of stories to express remorse”. She recommended a full custodial sentence.

Starting point

22. The maximum statutory penalty for serious housebreaking is 10 years imprisonment and 7 years imprisonment for Theft.
23. This is Siaosi’s 3^rd housebreaking and theft offending. He has other previous offendings involving violence and theft. His sentence of 1 year imprisonment was fully suspended for charges of housebreaking and theft in 2021. This offending occurred on 27 August, 2022 during the suspended period of his sentence of 1 year that was imposed on 24 September, 2021. His most recent sentence was imposed in April, 2023 and would be complete in January, 2024.
24. I accept the Probation Officers submission that Siaosi falls in the category of high risk offenders to the community. He has not only demonstrated that any opportunity of rehabilitation will be flagrantly disregarded but that he has continued to offend while awaiting this sentence.
25. I note the plea from his father that the offending was committed while Siaosi was drunk. But it cannot be ignored that Siaosi continued on to “sell” the product of his offending the next day, being a Sunday, to Heneli for smokes (not for alcohol as he told the Probation Officer). Then he was found by the police at Heneli’s home on the Monday with Viliami unlocking the computers. There is no information that he was drunk on the Sunday or Monday, when the police caught up with him.
26. Therefore, having regard to the maximum penalty legislated by Parliament, the seriousness of the offence, the comparable sentences referred to by the Crown, the need to protect the public and the need for punishment and deterrence, I set a starting point of 4 months for count 1 and uplift it by 1 year for breaking into Government property, resulting in a final sentence of 5 years. For the theft I fix a starting point of 4 years imprisonment to be served concurrently to count 1.
27. In mitigation, for his early guilty plea, cooperation with the police and high recovery of the stolen items I deduct 18 months from count 1 and 14 months from count 2. Resulting in a final sentence of 3 years and 6 months imprisonment for count 1 and 1 year and 8 months imprisonment for count 2.
28. I agree with the Probation report that suspension is not appropriate for Siaosi and I refuse to suspend any part of this sentence.
29. However, in considering the totality principle I am guided by the two step guide set out by the Court of Appeal in Attorney General v Toki [2023] TOCA 4; where, first, I must consider whether the two series of offending, in this case and that which he is currently serving (a 1 year sentence in CR 73 od 2023) were so closely connected that they should be regarded as part of the one course of criminal conduct.
30. Siaosi was sentenced in April, 2022 for that charge and the offending would have been committed a month or two prior. I consider this offending distinctly disconnected by time, place and circumstances and a cumulative sentence is appropriate either wholly or partial.
31. Second, I must consider whether the aggregate of the two end sentences of 4 years and 6 months was not excessive for the totality of the criminality involved. I believe that a wholly cumulative sentence would be excessive in this instant.
32. I also consider Siaosi’s age and the possibility of completing his studies at Fokololo Institute and add 18 months of this sentence to his existing sentence and suspend the balance for 3 years on conditions. That means he will serve in total a sentence of 2 years and 6 months. He would have completed 6 months at the end of this month and will continue to serve 2 years.

Result

33. The Defendant is convicted of one count of serious housebreaking and is sentenced to 3 years and 6 months imprisonment and one count of theft and is sentenced to 1 year and 8 months imprisonment to be served concurrently to count 1.
34. In consideration of the principal of totality, I add 18 months of the present sentence to be served at the end of his existing sentence in CR 73 of 2023. Meaning that his aggregate sentence is a period of 2 years and 6 months.
35. The balance of his sentence is suspended for a period of 3 years on condition that during the said period of suspension, the defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release from prison and thereafter as required by his probation officer; and
    4. subject to him having undertaken them in prison) complete courses in drug and alcohol awareness and life skills as directed by his probation officer.
36. Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
37. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 2 years and 6 months in prison.

Viliami Tu’ipulotu

38. The Crown submitted the aggravating features for Viliami was the seriousness of the offending, his role in the crime and being convicted after a contested trial.
39. The mitigating factors are; that he cooperated with the police and this is his first property offending.
40. The Crown relies on the case of;
    1. R v Tauvaka [2021] TOSC 174; CR 16 of 2021 (10 November 2021) – the accused was convicted for one count of receiving stolen items valued at $13,425.50. A starting point of 2 ½ years was set with a 6 months reduction for mitigation, leaving a final sentence of 2 years imprisonment, fully suspended on conditions.
41. The Crown submitted a starting point of 2 – 2 ½ years imprisonment as appropriate for Viliami. It was accepted that he was entitled for some mitigation for his cooperation with the police and this offending being his first property offence. A deduction of 6 months was suggested.
42. As to whether any part of Viliami’s sentence should be suspended the Crown proposed a full suspension on the condition that he complete 60 hours of community work.
43. Viliami chose not to attend the Probation Office in order that they may provide a pre-sentencing report.

Starting point.

44. The maximum statutory penalty for receiving is the same as theft.
45. Therefore, having regard to the maximum penalty legislated by Parliament, the seriousness of the offence, the comparable sentences referred to by the Crown, Viliami’s role in the offending, the need to protect the public and the need for punishment and deterrence, I set a starting point of 1 year and 6 months imprisonment.
46. For his cooperation with the police and this being his first property offence, I deduct 2 months in mitigation, resulting in a sentence of 1 year and 4 months imprisonment.
47. As for the possibility of suspending part of his sentence, I consider Viliami to be young and is likely to use any suspension of his sentence to rehabilitate himself. Further, he played a minor role and did not receive the goods for himself or personally gain anything from unlocking the laptops. I have also taken into consideration the letter from his father filed on 27 October, 2023. Although he was convicted after a trial, I am prepared to adopt the Crown’s suggestion of suspending his sentence in full on conditions and I do so.

Result

48. Viliami Tu’ipulotu is convicted of receiving and is sentenced to 1 year 6 months imprisonment to be fully suspended on the condition that during the period of suspension, he is to:

(a) not commit any offence punishable by imprisonment;

(b) be placed on probation;

(c) complete a course in drug and alcohol awareness and life skills as directed by his probation officer.

49. Viliami is to take note that failure to comply with the said conditions may result in the suspension being rescinded, in which case, the he will be required to serve the balance of his prison term.

Heneli Manuofetoa

50. The Crown submitted the aggravating features for Heneli to be the, seriousness of the offending, his recidivism and his role in the offence also involved an element of premeditation. The mitigation feature was his cooperation with the police.
51. The Crown relied on R v Tauvaka above.
52. As suggested for Viliami, the Crown submitted a starting of 2 – 2 ½ years imprisonment with a 6 month deduction in mitigation, for his cooperation with the police. Leaving a final sentence of 1 ½ – 2 years imprisonment.
53. For his cooperation with the police the Crown proposed the final 12 months of Heneli’s sentence be suspended for 2 years on conditions.

Pre-Sentence Report

54. Heneli is 42 years old and is the youngest of 7 children. Both his parents are deceased. He attended Tupou College and completed form 4. He was suspended and enrolled at Liahona High School’s Tech program but did not complete it.
55. He has three children from a previous marriage. He remarried Mele Valu of Fo’ui and they had 3 more children. Mele and the children are in New Zealand. He is a member of the Wesleyan Church but is not an active member.
56. Heneli’s recidivism has meant he spends a lot of time at Hu’atolitoli Prisons. He suffers from gout and is currently renting a place at Tofoa. He is financially dependent on his wife, children and siblings abroad.
57. He accepts his conviction and expressed that his time spent in prison has allowed him to reflect on life, his family and his children. He claims he refused to accept the stolen items but said that Siaosi came to his residence with the stolen property asking for money.
58. The Probation Officer reported that Heneli did not demonstrate a person of good character on the basis of his criminal history and recommended that the Court impose a penalty that is appropriate for the Defendant.

Starting Point

59. The maximum statutory penalty for receiving is the same as theft.
60. Therefore, having regard to the maximum penalty legislated by Parliament, the seriousness of the offence, the comparable sentences referred to by the Crown, Heneli’s role in the offending, the need to protect the public and the need for punishment and deterrence, I set a starting point of 2 ½ years imprisonment.
61. For his cooperation with the police I deduct 6 months in mitigation, resulting in a sentence of 2 years imprisonment. I do not accept his claim that he wanted to refuse the goods because he did not. Further, his belated claim that Siaosi wanted money is inconsistent with the initial reasons he gave that it was in exchange for smokes.
62. As to whether Heneli is entitled for suspension, Heneli is not young; he previously experienced a long period of 7 years of a crime free life up until 2019. Unfortunately, since then he has been charged 4 separate times for various unrelated offences. He was previously granted a suspended sentence in 2012 but he did not utilize it to rehabilitate himself.
63. Notwithstanding that I am prepared to adopt the Crown’s suggestion of suspending the final 12 months of his sentence on conditions.
    

Result

64. Heneli Manuofetoa is convicted of receiving and is sentenced to 2 years imprisonment. The final 12 months of his sentence is suspended on the condition that during the period of suspension, he is not to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. he is to report to the probation office within 48 hours of his release and thereafter as directed by his probation officer;
    4. complete a course in drug and alcohol awareness and life skills as directed by his probation officer.
       
65. Heneli is to take note that failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
66. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 12 months in prison.
    

NUKU’ALOFA	P. Tupou KC
30 October, 2023	ACTING LORD CHIEF JUSTICE