R v Lauaki [2023] TOSC 60; CR 35 of 2023 (4 October 2023)

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

CR 35/2023

REX

-v-

Fokikovi mei Vaiola LAUAKI

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. S. Patelisio for the Prosecution
Mr. V. Folaumahina for the defendant
Date of: 4 October 2023

1. Miss Fokikovi Lauaki appeared for arraignment on 1^st June 2023 and pleaded guilty to a single count of theft in that she stole $144,660.00 from Luna’eva Enterprises Limited (Luna’eva) during and inclusive, the months of January to September 2022.
2. Miss Lauaki is 28 years old. She was employed by Luna’eva from March 2020 to January 2022, her offending came to light in September that year.
3. She had been trained in the use of the EFTPOS machine at the Veitongo branch, where she worked.
4. Using that device, she diverted the company’s funds into her own bank account from January to June 2022. That was a sum of $81,600.00 that was stolen by making 12 separate transactions over those 6 months.
5. From July to September that year a further $63,000.00 was stolen from the company in 7 transactions, one as large as $18,000.00. The last $10,000.00 was stolen and deposited in the account of Pelenaise Manu, the sister of her de facto partner, Tevita Manu.
6. The owner of Luna’eva, ‘Eve’eva Mafi, was alerted to the theft when one of her shop’s transaction machines would not work. Enquiries of the bank led to Miss Lauaki’s thefts being revealed.
7. The victim impact report does not provide any detail of the effect of the loss on Miss Mafi or its effect on her business.
8. It must go without saying that such a substantial loss would cause a great deal of concern and worry, in turn it would affect the running of the business and was an extra layer of problems that needed to be addressed on top of the day-to-day management of a busy firm.
9. It must have caused profound difficulties and anxiety to Miss Mafi above and beyond the effect of the loss itself.
10. Miss Lauaki is a young mother of two sons, aged 6 years and 8 months. She had, hitherto a good employment record. She was educated right through to level 7. She enrolled at the Tonga Institute of Higher Education and successfully completed her diploma in International Business in 2016.
11. Her pre-sentence report recommends she is given another chance, by which I understand some form of suspended sentence, though that is never articulated in those terms.
12. The report noted that Miss Lauaki fully accepted her offending. She had insight into the wider effect it had on her family, causing them embarrassment and shame no doubt.
13. It is significant that she has started a course with the Salvation army, as noted at paragraph 17 of the report.
14. There is a letter submitted from Miss Olivia Fa of that organization dated 16^th June 2023, that stresses the benefit counselling sessions she has been giving Miss Lauaki (who is in fact her niece) have had. That Miss Lauaki has worked hard to address her decision making processes and life skills with emphasis on preventing lapsing and making better informed, reasonable choices in her life. I have not lost sight that a report by a family member must come with it some caution in approaching any recommendations.
15. There are two further reports, one from the Women’s and Children’s Crisis Centre, compiled by Malia Tu’itupou, undated but referring to an interview conducted with Miss Lauaki on 28^th June 2023. There is also a psychiatric report dated 4^th August 2023 compiled by Dr. Puloka.
16. These two reports need to be considered together.
17. The former sets out how Miss Lauaki started a relationship with Tevita Manu, the father of her youngest son. That this was from December 2021 and encompassed the period of the offending.
18. That by end of February 2022 they had started to live together. That she had become pregnant, but had lost her job at Luna’eva due to poor attendance.
19. The relationship then became abusive and she was put in a position of demands being made on her to support both the two of them and contribute to Tevita Manu’s wider family.
20. The report writer describes her as having been subjected to “emotional abuse, verbal abuse and economic abuse” all whilst she was pregnant with their son.
21. Tevita Manu never had employment in that time and demanded money from her for cigarettes, alcohol and both cannabis and methamphetamine.
22. The psychiatric report, noted in its opinion that Miss Lauaki “... was living under a very stressful life-event for about 9 months and had significant psychosocial and environmental problem... (sexual & marital history) that directly related to her...” stealing this money.

Maximum sentence

23. The statutory maximum sentence for this offence is 7 year’s imprisonment.
    

Sentencing submissions

24. The defence have filed written submissions dated 19^th June 2023 along with a reference from Mr. Sione Taulava and the letter from Olivia Fa of the Salvation Army. The defence submissions have highlighted her vulnerabilities, young children and the success in studies and education and her background generally. There is a reference to the car being valued $21,000.00 and a further $7,000.00 being returned to the victim.
25. In fact, the car was found to be in a very poor condition and the Board of Directors of Luna’eva had the vehicle sold. They could only raise $5,000.00.
26. As for returning any monies the police found that Miss Lauaki had made a deposit of $6,000.00 on another vehicle that they were able to recover from the owner of the car dealership in January 2023.
27. It is regrettable that yet again there is no proper information about the arrest; when, where, what was said on caution?
28. This Court needed to know if after the arrest she then made that deposit on the new vehicle. All the signs are that she may well have, but there is insufficient detail bearing on that critical issue which goes to both of remorse and prospects of rehabilitation.
29. The defence in their submissions have highlighted the case of R v Kolomalu CR 115 of 2011 and submit there can be a difference between someone who has authority in an organisation but is not “...someone high up the chain of responsibility.”
30. Whilst I accept that Miss Lauaki may not have had a very senior role in the company, she still was sufficiently trusted with a very important function when trained in the use of the EFPOS machine. In that respect, as can been seen by the sums involved in this case, she held a great deal of responsibility.
31. The Crown, in their submissions dated 15^th August 2023, advocate a starting point of 4 ½ to 5 year’s imprisonment.
32. My attention has been drawn to the following cases.
33. Wall v R [2001] Tonga 238, theft of $181,008.00.
34. This was a case of embezzlement where false cheques had been raised on the account of the defendant’s employer and used to fund a lavish lifestyle and purchase of luxury goods, for example, an Alfa Romeo sports car and overseas trips.
35. The Court of Appeal found that a 5-year sentence was excessive and reduced it to 4 years, the final 12 months suspended. They noted the length of time over which the embezzlements had taken place, the value of the monies taken and the abuse of position of trust. His previous good character was referred to, as was his age and guilty plea.
36. R v Bloomfield [2013] Tonga LR 165
37. The defendant was convicted after trial of embezzling $204,033.00. A starting point of 5 years was adopted given the value of the monies stolen the defendant’s previous good character, her, albeit, limited contrition and strong community support. The final sentence was 4 years and 4 month’s imprisonment the last 12 months suspended.
38. In the instant case the Crown then submit a starting point of 5 years is appropriate.
39. Whilst it is to be noted that sentences are “...fact specific, caution is required before taking too much from sentences in other cases: Foliaki v Rex [2015] TOCA 12 at [16].^[1]” The modern approach of there being sentencing Council Guidelines to follow, for example as in United Kingdom^[2], that give a range of factors first to assess culpability, then the harm caused and finally the category by reference to value, demonstrates that there can be features in precedent, for example value of the loss caused, that will provided some guidance to the sentencing Court.
40. The Crown have submitted aggravating features to be:
    1. seriousness of offending,
    2. value of loss,
    3. that no repayments have been made,
    4. breach of trust, and
    5. premeditation.
41. In analysing those submissions, there may be a danger of double-counting if they were all to be accepted. Theft is loss to the victim. To not repay is not a further loss. Repayment may in some circumstances be mitigation; I cannot see how the contrary is aggravating.
42. The seriousness of the offending is both the value and also the breach of trust and length of time the offending took place over (that referred to under the section “premeditation” in the Crown’s submissions).
43. Premeditation and length of time the offending took place are two sperate categories. There may be some overlap here, but not ab initio, when the offending was premeditated but just starting.
44. The Court asked the Crown for further and better particulars of the money transfers, as they were almost all made after she had been dismissed.
45. It transpired that 4^th January 2022 was her last working day. What she did thereafter was to go to the branches of Luna’eva at Veitongo gas station and also the Malapo branch.
46. With the connivence of other members of staff she obtained the EFTPOS machine and made the subsequent transfers, so stealing from Luna’eva.
47. Over the course of 9 months, she attended the company stores 18 times to do just this.
48. The correct approach to aggravating features are that they were:
    1. high value
    2. over length of significant length of time; 9 months.
    3. premeditation
    4. serious breach of trust by employee, and
    5. the Court also notes the prevalence of this type of crime.
49. If an approach is made to determine the correct sentencing tariff by reference to culpability, harm and its value then those factors are relevant.

Culpability

50. On the one hand there were elements of high culpability; significant breach of trust and the ease of committing this offence which in turn demonstrates traits of the vulnerable position the victim was in.
51. Against that there have been set out in the reports the alleged coercive and exploitative behaviour that was used to influence Miss Lauaki. It is unclear how much of this is really true and I have noted what was said in the reports but remain sceptical.

Harm

52. The harm one can safely infer, involved the impact on the running of the business, emotional distress, high level of inconvenience and a loss of confidence the crime would have caused.
53. Weighing all these factors together I conclude that a 5 year starting point, as submitted, following the authority of Wall v R is too high. There the monies taken were significantly more.
54. I do not lose sight of all the aggravating factors I have referred to. Especially the fact that she returned to the stores owned by her former employer for over 8 months, after being dismissed, to steal and involved other members of staff.
55. Therefore, I set a starting point in this case of 4 year’s imprisonment. I increased that to 5 years for all the aggravating features.
56. I reduce that by 6 months to reflect her youth and previous good character. That gives 4 ½ years.
57. That I reduce that by 30 % for her early guilty plea which is a reduction of 16 months.
58. That gives a sentence of 38 months; that is 3 years and 2 month’s imprisonment.

Suspension

59. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
60. Those principles, as set out in that case, aim to promote rehabilitation.
61. The considerations advanced were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
62. Miss Lauaki was said to be remorseful, has engaged with the Salvation Army.
63. Yet I have serious doubts about the psychiatric reports given the lack of any contemporary corroboration and the manner in which the transfers took place and that they involved manipulating other members of staff to her ends. That she did this after being dismissed shows a particularly brazen character and one determined to cheat.
64. That she is the mother of a very young child, less than one year old and the impact on him must not be overlooked. It is not the case that she became pregnant after she was caught.
65. Balancing these competing factors the Court will suspended 18 months of the 3 years and 2 month’s imprisonment, for 2 years.
66. That suspension will be on the following conditions:
    1. that she reports to probation within 48 hours of her release from prison;
    2. not to commit any offence punishable by imprisonment;
    3. she lives where directed by probation, and
    4. that she completes a life skills course during her time in custody.
67. Any breach of a term of the portion of her suspended sentence will make her liable to be sentenced to the whole suspended term.
68. I reserve any breach to myself.
    

Final sentence

69. 3 years and 2 month’s imprisonment, the final 18 months suspended for 2 years on the above conditions.
    

NUKU’ALOFA	N. J. Cooper
4 October 2023	J U D G E

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^[1] R v Fa AC 26 of 2022; Chief Justice Whitten KC
^[2] https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/theft-general/