R v Filimone To'aho [2024] TOSC 2; CR 17 of 2022 (1 March 2024)

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

CR 17 of 2022

REX
-v-
FILIMONE TO’AHO

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mrs. ‘E. ‘Eliesa for the Prosecution
Mr D. Corbett for the Defendant
Date: 1 March, 2024

The proceedings

1. On 27 October, 2023, after a two-week jury trial, the Defendant was found guilty of all eight counts of receiving money by false pretences, contrary to section 164 of the Criminal Offences Act.

The offence

2. The First Complainant, Siale Filimone of Ha’ateiho is a building inspector with the Ministry of Infrastructure. On or about 12 March 2020, she saw an ad for a 3-tonne Isuzu truck for $25,000 on Facebook. The Defendant was behind the ad. Ms. Filimone enquired about the truck. The Defendant required a deposit of $6,000 and for the balance to be paid by installments. The Defendant told Ms. Filimone, the vehicle was on its way and he would have it 30 days from 16 March, 2020. That did not happen. The Defendant said the shipping was delayed due to covid-19.
3. Ms. Filimone was instructed to make the payments to the Defendant’s ANZ account number 1803575 and the Defendant’s brother’s BSP account number 2000928958. A total sum of $18,700.00 was paid by Ms. Filimone into the said accounts.
4. The Defendant at that point stopped Ms. Filimone from making more payments until the vehicle arrived in Tonga. The vehicle never arrived and she did not receive her money back from the Defendant.
5. The Second Complainant, ‘Ana Noelangi Tautua’a of Faama Vava’u, saw an ad for a black 2015 Toyota Harrier for $16,900 on Fobby’s Print Tonga’s Facebook page managed by the Defendant. Around April 2020. Ms. Tautua’a expressed her interest in the vehicle. She was told she would get her vehicle 28 days from the date of the ad. She intended for it to be her mother’s gift for mother’s day.
6. She paid the Defendant a total sum of $13,903.00. The vehicle did not arrive as promised. In June, the Defendant explained the delay was due to covid-19.
7. In October, the vehicle still had not arrived and the Defendant told Ms. Tautua’a it was stuck at a wharf but if she paid a further deposit, she would get the upgraded version of that same vehicle. The deposit was paid but no upgraded vehicle arrived.
8. In April, 2022, the Defendant told Ms. Tautua’a there was no vehicle. In January 2023 Ms. Tautua’a saw the Defendant posting ads for vehicles again on Facebook and contacted him. The Defendant told her to withdraw her present claim against him and they would settle. She did not agree. She did not receive her vehicle or her money back from the Defendant.
9. The Third Complainant is, Lavili Maka of Ma’ufanga. She is the Manager of the Fiji Airways office in Tonga. On or about 7 July 2020, she ordered two vehicles from the Defendant. They were a Toyota Prado and Toyota Hiace. The cost was $30,000 and would arrive in Tonga on 28 October, 2020. A deposit was required and the remaining payment to be paid by installment.
10. Between July and October 2020, Ms. Maka paid the Defendant a total of $12,400 by way of cash and bank cheque. On 28 October, 2020, the Defendant informed Ms. Maka that there was a delay with the shipment carrying the two vehicles but to continue with the payments.
11. Then, the Complainant saw another ad for a Toyota Hilux for $29,000 payment for which was due on the same day. On 4 December 2020, she paid the Defendant $20,000 in cash for the third vehicle and told him to take the remaining $9,000 from the $12,400 she deposited for the first two vehicles.
12. When the vehicles did not arrive, she felt something was off and contacted the Defendant to return the moneys paid to him. She received $1,500 back from the Defendant and no vehicle.
13. The Fourth Complainant is Melasisi Ta’ufo’ou ‘Isama’u of Ha’ateiho. On or around September 2020, he saw a Toyota Dyna truck for sale on Fobby’s Print Tonga’s Facebook page for $17,500. It provided that while customers wait for the arrival of their vehicle, they would be provided with another for their use as they await their vehicle. Mr. ‘Isama’u was given a truck to use which the Defendant claimed he bought. Mr. ‘Isama’u ended up buying that vehicle for $4,000 from the owners of the truck. He did not receive the vehicle he paid monies to the Defendant for. In spite of that, it was not his wish to sue the Defendant.
14. The Fifth Complainant is Heleni Toli of Vaini. She is the Manager of Sunshine Rentals, a car rental company. She was looking for a Toyota Hilux to purchase as they were popular with Tongan visitors to the Kingdom. She saw an ad on Fobby’s Print Tonga’s Facebook page and contacted the page.
15. She was told the person responsible was in Japan but there was an agent at the Fiji Airways and was provided with a phone number of the agent. Mrs. Toli contacted the number given and it was Mrs. Maka. She confirmed to Mrs. Toli that the company was not a scam.
16. Mrs. Toli, being satisfied, contacted the Facebook page and enquired why the Toyota Hilux was so cheap. She was informed the company was clearing out old stock to make room for their new stock. She was set on buying only 1 truck.
17. Then she was messaged with an offer of another vehicle due for payment on the same date. That very afternoon, a post on the page thanked companies and well-known persons for their business. She decided to pay for 2 more trucks and understood it would arrive in December, 2020. She paid a total of $116,000.00.
18. Further contact with the Defendant was not possible. But Fobby’s Print Tonga’s Facebook page shifted the blame to Japan. When Mrs. Toli contacted Japan, a Mr. Wahad spoke with her. From that communication, she realized the transfer slips of funds she was given by the Defendant or his agents were fraudulent.
19. The Sixth Complainant is Lesieli Tu’ivai of Fua’amotu. On or about November 2020, the Complainant contacted Fobby’s Print Tonga’s Facebook page about a Toyota Hilux they were advertising for $35,000.
20. The Defendant told her and her brother Sitiveni that the vehicle will arrive on the last week of December. Ms. Tu’ivai and her brother paid a total of $15,000 as instructed by the Defendant.
21. When the vehicle failed to arrive, Ms. Tu’ivai was told that the vehicle was in Britain and they were trying to engage another company to ship it to Japan.
22. Then, their calls went unanswered. She went to find the Defendant at Niutoua, to be informed that he had been taken into custody. The Defendant accepted Ms. Tu’ivai’s evidence.
23. The Seventh Complainant is Lu’isa Kolo of Pahu. In December 2020, she saw on the Fobby’s Print Tonga’s Facebook page a Nissan Murano for sale at $17,500 and contacted them immediately. She spoke with the Defendant and was told to make the relevant payment at their agent, lawyer Siosifa Tu’utafaiva’s office to one, Siosi’ana Vakasiuola.
24. On 6 January 2021, she went to Mr. Tu’utafaiva’s office where she was handed a contract from Fobby’s Print Tonga. She signed the contract with Siosi’ana Vakasiuola and paid the $17,500 in cash to Ms. Vakasiuola. She was told the vehicle would arrive in on 9 March, 2021.
25. When it failed to arrive, she was told the money had been sent and to be patient. Then the Defendant later informed her that she was not to contact him until this proceeding was finalized. She did not get her vehicle or a refund of monies paid to the Defendant.
26. The Eighth Complainant is Prince Tu’ipelehake. On 26 April 2021, he agreed to purchase 4 boat engines from the Defendant for $41,600. The Defendant asked him to deposit 30% of the price.
27. The money, $12,480, was paid to a Ramona ‘Otutoa who paid the Defendant $9,680 and put the rest towards the deposit for the engines. The engines failed to arrive and the complainant demanded his money back. The Defendant had paid $9,800 back to Prince Tu’ipelehake.
28. In total, the Defendant obtained a sum of $243,486 from which he re-imbursed $11,300. The balance of $232,186 remain outstanding.

Crown’s submissions

29. The Crown submitted the aggravating features of the offending were:
    1. The duration of the offending, it was carried out during the period of almost a year from June 2020 to April 2021 against 8 different victims;
    2. The total amount falsely obtained was TOP$243,486.00;
    100. Only TOP$11,300.00 was recovered;
    4. Advertising of motor vehicles for sale pursuing more victims in breach of his bail conditions;
    5. Pre-meditation;
    6. Dishonesty and deception;
    7. The financial loss, mental and emotional impact caused to the victims.
30. The Crown submits the following as mitigating features;
    1. The repayment $11,300; and
    2. Remorse expressed to the Probation officer, albeit doubtful.

Victim Impact Report

31. The complainants all suffered financial loss, some more than others. They all experienced anxiety, mental and emotional stress from not receiving the vehicles or re-imbursement of funds paid and the false promises they were fed by the Defendant.
32. Further, the First Complainant could not provide the vehicle for her family in ‘Eua to help them get to and from their plantation. The Second Complainant could not gift her mother the vehicle for mother’s day. The Third Complainant lost her retirement money which she used for the purchase of the vehicle. It was to be rented by guests staying at her guest house. She is also terminally ill and suffered great anxiety and stress appearing in court. She was re-imbursed only $1,500 out of the total funds she paid the Defendant. The Fifth Complainant experienced stress and financial loss to her car rental. The Eight Complainant was unable to continue his sea cucumber business during its season and lost potential income.
33. The Crown referred to the following comparable sentences:
    1. R v Siutaisa To’ia (CR 112/2022) – the Defendant pleaded guilty to 6 counts of forgery, 6 counts of knowingly dealing with forged documents and 1count of obtaining money by false pretence. She was entrusted with the Victim’s bank book. She forged authorisation letters to withdraw money from the account. She withdrew a total of $35,000 within a month and made no repayments to the Victim. For the count of obtaining money by false pretence, the Defendant was sentenced to 1 year and 8 months to be served concurrent to the other charges. The sentence was fully suspended on special circumstances and the Victim’s (Defendant’s father) forgiveness of the Defendant.
    2. R v Koionia Latu ‘Ekusasi (CR 3 & 103 of 2022) – the Defendant pleaded guilty to several counts of obtaining money by false pretences and forgery. For CR3/2022, the Defendant was charged with 3 counts of obtaining money by false pretences by false advertisement of vehicles to three different victims involving $8,000, $4,000 and $8,500 respectively. For CR103/2022, the Defendant was charged with one count of obtaining money by false pretence and two counts of forgery by creating false receipts. The Victim in this case was the Defendant’s half-sister. The Defendant had previous convictions for fraudulent conversions involving vehicle scams. Lord Chief Justice Whitten sentenced the Defendant to an aggregate sentence of 3 years imprisonment, the final year suspended for a period of 2 years on conditions.
    100. R v Malia Selupe (Unreported, Supreme Court, CR 47/2020, 9 April 2021, LCJ Whitten KC) – the Defendant pleaded guilty at the conclusion of her evidence during trial, to five counts of obtaining money by false pretences; Count 1-$20,300.00, Count 2-$16,850.00, Count 3-$1,000.00, Count 4-$12,000.00, Count 5-$9,800.00. She operated a car dealer business by importing vehicles from Japan through online bidding and sales. Between May 2016 and August 2017, she received a total of $59,950.00 from four customers for the purchase of vehicles. Those customers never received their vehicles or were reimbursed. Whitten LCJ imposed a starting point of 24 months imprisonment for Count 1, 20 months for Count 2, 16 months for Count 3 and Count 4 combined, 12 months for Count 5, leaving a final sentence of 6 years imprisonment. In applying the totality principle, Whitten LCJ opined that for a first-time offender, 6 years imprisonment is a crushing sentence. Therefore, he imposed an overall starting point of 4 years imprisonment, reduced by 1 year for mitigation and the last 12 months suspended for 2 years on conditions, to be served cumulatively.
    4. R v Finau Heuifanga Vea (CR 12/2018) – the Defendant was found guilty after trial, for one count of embezzlement contrary to section 158 of the Criminal Offences Act. She embezzled a total of $115,497.80 from her employer and repaid a total of $10,000.00. Cato J sentenced her to 3 years and 3 months imprisonment with the final 9 months suspended on the condition that she is not to commit any offence punishable by imprisonment.
34. Here, the Crown submits that a custodial sentence is appropriate and suggests Count 5 as the head count.
35. For each respective count, the Crown submits the appropriate starting points as follows;
    1. Count 1 – 22 months imprisonment;
    2. Count 2 – 17 months imprisonment;
    100. Count 3 – 32 months imprisonment;
    4. Count 4 – 21 months imprisonment;
    5. Count 5 – 48 months imprisonment;
    6. Count 6 – 18 months imprisonment;
    7. Count 7 – 21 months imprisonment;
    8. Count 8 – 12 months imprisonment.
36. The Crown recommends a suspension of 2 months from Count 3 and 6 months from Count 8 leaving 30 months imprisonment for Count 3 and 6 months imprisonment for Count 8, for the reimbursement made to each Victim.
37. To reflect the totality principle, the Crown recommends 50% of the sentences in Counts 1 to 4 and 6 to 8 should be added to the head Count as follows:
    1. Count 1 – 11 months;
    2. Count 2 – 8 months;
    100. Count 3 – 15 months;
    4. Count 4 – 10 months;
    5. Count 6 – 9 months;
    6. Count 7 – 10 months;
    7. Count 8 – 3 months.
38. This results in a proposed sentence of 9 years and 6 months imprisonment reduced by 2 years to reflect the Defendant as a first-time offender in line with Vea and Selupe. This leaves a final sentence of 7 years and 6 months imprisonment.
39. The Crown agrees with the Defendant that his previous conviction in 2021, although committed in 2017, should have been progressed together with this case. Therefore, it would be unfair on the Defendant if this case is treated as an aggravating factor and breach of his suspended sentence.
40. The Crown accepts the Defendant is entitled to have a portion of his sentence suspended and recommends the final 18 months is suspended for 12 months on conditions as the Court sees fit. This leaves a final sentence of 6 years imprisonment.

Defendant’s submissions

41. Mr Corbett, for the defendant opposed the Crown’s proposed starting point of an aggregate sentence of 9 ½ years imprisonment and reduced to 7 ½ years in line with the totality principle. He argued that the proposition exceeds the maximum penalty for an offence under section 164 of the Criminal Offences Act and contradicts the Crown’s Indicative Sentencing submissions.
42. Mr. Corbett relied on the following authorities:
    1. R v Filimone To’aho (unreported, CR24/2021) –here, the present Defendant was charged with theft and pleaded guilty on the day of his trial. He obtained a loan of $17,767.81 from the Complainant to purchase 20 vehicles from Japan and ownership was to be in the Complainant’s name. The Defendant was to sell the vehicles to repay the loan and two vehicles were to be retained for the Complainant. The Defendant changed the ownership of all 20 vehicles to himself and sold them. When he was confronted by the Complainant, he agreed to sign over 8 vehicles. However, he sold those vehicles as well. On 19 May 2021, the Defendant repaid $17,000 of the loan. A starting point of 22 months was imposed, reduced by 5 months for the monies repaid, leaving a final sentence of 12 months imprisonment. It was fully suspended for 2 years on conditions including 60 hours community work, and to not commit any criminal offence.
    2. R v Lolini ‘Ofa (unreported, CR316/2020) – the Defendant was charged with theft of $18,189.60, 3 Counts of forgery, and 3 Counts of knowingly dealing with forged documents. She forged her uncle’s signature on his business cheques and cashed a total of 43 cheques between September 2019 – April 2020. She was sentenced to 2 years imprisonment for the theft, 12 months imprisonment for each forgery counts, and 6 months imprisonment for knowingly dealing with forged documents, both to be concurrently to the theft count. The sentence was fully suspended for 1 year.
    100. R v ‘Ilona Maira Ika (unreported, CR187/2020) – the Defendant was charged with theft and she pleaded guilty. Whilst being an employee of ANZ Bank, she withdrew monies from a client’s bank account totalling $18,000 on 9 different occasions. Full restitution of the money was made. A starting point of 2 years imprisonment was imposed, reduced by 12 months in mitigation. The final six months was suspended.
    4. R v Sailosi Vea Finau (unreported CR146/2019) – the Defendant was charged with one Count of theft of $11,044 that he withdrew from his father’s TDB bank account. He was sentenced to 18 months imprisonment, fully suspended on conditions.
    5. R v Malia Selupe (unreported, CR47/2020) – (refer para.33(d) above).
    6. R v Mateo (unreported, CR61/2018) – the Defendant was charged with 1 Count of obtaining money by false pretences, 3 Counts of forgery, and 3 counts of knowingly dealing with forged documents. He was an employee of Pacific Forum Line where he obtained $8,200 by telling the Complainant that Pacific Forum Line was selling him a container. He forged invoices and receipts. A starting point of 2 years imprisonment was imposed for Count 1 as head sentence. Counts 2-4 and Counts 5-6 were to be served concurrently. The sentence was fully suspended for 2 years on condition that the Defendant repays the Complainant.
43. Finally, Mr. Corbett proposed a partially suspended sentence in line with Mo’unga.

Crown’s reply to the Defendant’s submissions

44. In response, the Crown pointed out that the indicative sentencing submissions of 5 – 5 ½ years imprisonment was based on a guilty plea. The increase to 9 years and 6 months imprisonment reflects the not guilty plea and the identified aggravating features above.
45. The Crown argued that the authorities relied on by Mr Corbett are distinguished on two grounds. One, that all cases relied upon by the Defendant involved first time offenders who pleaded guilty for an offending against one victim. Two, the circumstances in the case of Selupe differs from this case as the offending in that case were against four victims, that Defendant falsely obtained $59,000. She had 5 young children and pleaded guilty, albeit late.
46. Here, the Defendant pleaded not guilty and the matter went to trial over a period of 2 weeks. The offending was against eight victims and he falsely obtained over $200,000. That is double the number of victims in Selupe and four times the amount falsely obtained.
47. The Crown highlighted a complaint currently under investigation against the Defendant and submitted it was not an aggravating factor. Further, it was argued that no suspension should be granted on the basis that the Defendant is the sole breadwinner in his family.
48. Finally, the Crown objects to Mr. Corbett’s argument that the Defendant suffers from a hearing medical condition and therefore did not hear his bail conditions. The problem with the assertion is that the bail form also set out the conditions in writing and was signed by the Defendant. I observed the Defendant in court and did not complain of a hearing problem during the trial. Even if that were the case, he ought to have seen it on the form he signed on 5 April, 2022.

Pre-sentencing report

49. The Defendant, commonly known as ‘Mone’ is 43 years of age. His parents Siale and Saia To’aho are from Vava’u. He is the second of five siblings. His family currently reside at Tokomololo and abroad. He and his wife reside with her family at Niutoua.
50. The Defendant attended Tonga High School, Tonga College and Tupou College where he completed his national examinations. He enrolled at the Tonga Institute of Education (TIOE) and graduated with a Diploma in Teaching. He was a teacher from 2004 to 2007.
51. In 2007, he got married and resigned from teaching. He was employed as a Corporate Case Manager at Digicel for 5 years. In 2013, he started Super Cheap Tonga, a business that imported vehicles from Japan to sell locally. Like the present case, he required customers to pay the full price before the vehicle would arrive. And like the present case, customers never received their vehicles. That business went under. To pay off the debt, his wife moved to the US to find work. She never returned.
52. The Defendant remarried Ms. Hehea of Niutoua and they adopted one child. He attends the Free Wesleyan Church and his wife is a member of the Church of the Latter Day Saints. He is healthy and unemployed. He sometimes assists his two brothers in their IT business and to support their family financially, his wife travels to Australia.
53. The Defendant maintains he was deceived when he purchased the vehicles and his orders were mixed with another company’s order. He attempted to replace the customer’s vehicle with other vehicles but it did not work as expected. He stated that he paid his debt in Count 8 and in Count 3, he was unsure of the full amount he owed.
54. The Defendant’s father stated that his eldest child arranged for the family to help in paying off the Defendant’s debt.
55. The probation officer reported despite the Defendant expressing he was remorseful and regretted his actions, he blamed the car dealership and suggested community service to allow him to compensate the victims.
56. She placed the Defendant on the scale of “very high risk” to the community. He is not a first-time offender and pleaded not guilty.

Starting point

57. The maximum statutory penalty for obtaining money false pretences is the same as that for theft under s145 of the Criminal Offences Act where:

“ Every person who commits theft is liable —

(a) if the value of the thing stolen does not exceed $10,000, to imprisonment for any period not exceeding 3 years;

(b) if the value of the thing stolen exceeds $10,000, to imprisonment for any period not exceeding 7 years., that is, 3 years for anything valued below $10,000 and 7 years imprisonment for anything valued at over $10,000.”

58. In considering the appropriate instant sentence, the principle of totality is at the forefront. However, on balance, I agree with the principle that totality must be applied in such a way that;

“A person who commits a series of deliberate discrete offences must not be left with the idea that he or she can escape effective punishment for successive offences each of which contributed to a whole course of deliberate criminal behaviour”.^[1]

59. I have considered the approach taken by the Crown in its sentencing formulation and I find it consistent with the approach in Pearce v The Queen (1998) 194 CLR 610^[2] that:

“a judge sentencing an offender for more than one offence must now fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality. Such an approach is necessary, in the High Court’s view, to avoid the failure to take into account of the differences in the conduct which are the subject of punishment on each count. It also avoids artificial claims of disparity between co-offenders.”^[3]

60. Having considered the maximum statutory penalty, the sentencing principles of punishment, deterrence, the public’s interest to denounce such offending, the financial loss, emotional and mental distress suffered by the complainants, submissions by counsel, authorities relied upon and the principles mentioned and the need to protect the community from these kind of criminal activities, I adopt the Crown’s sentencing formulation at paragraph 35 above and agree that Count 5 should be the head sentence.
61. I take note of Mr. Corbett’s submission that the aggregate sentence is in excess of the maximum penalty under s.145 of the said Act. That submission is unsustainable for the simple reason that the said sentence is an aggregate of penalties for 8 separate offences. I further agree that the authorities Mr. Corbett seeks to rely on are distinguished for the reasons raised by the Crown.
62. The case of Mears (1991) 53 A Crim R 141 per Lee CJ at C
    L indicated that in cases concerning fraudulent obtaining of money – the amounts of money, the period of time of the fraudulent conduct and the motives are all relevant factors.^[4]
63. In this instant, a total of $243,486.00 is involved. That is a substantive amount of money. The Defendant’s fraudulent acts continued over a period of 10 months involving the 8 complainants. He obtained the complainants’ trust and money by falsely advertising vehicles and engaged in making false promises of importing their vehicles on their behalf.
64. When the Defendant told the complainants the vehicles were on the way, he was being economical with the truth as well as the excuses that followed including the delay to covid-19, one vehicle being in Britain to be shipped to Japan first. He gave the complainants’ arrival dates. Not one of the complainants’ vehicles arrived on time or at all.
65. The Defendant put on the façade until he ran out of excuses and refused to respond or answer calls from the complainants. The final correspondence from him was not to contact until this proceeding was finalized and/or to withdraw the proceeding and explore settlement. Ultimately, the jury did not believe him.
66. Even after conviction, the Defendant maintained his innocence and claim he was scammed, yet he proposes to pay the 8 complainants back. No evidence was produced to show he had taken any steps against the companies he claims to have been scammed by, to recover the complainants’ money he claimed to have paid them.
67. In my view, his conduct demonstrates a blatant dishonesty with no regard to the propriety of the transactions or their consequences and the need for personal and general deterrence, are significant considerations in determining the suitability of a full time custodial sentence.^[5]
68. For those reasons, I agree that a custodial sentence is appropriate and that the sentences imposed for counts 1 – 8 be made cumulative to count 5.

Mitigation

69. For the restitution of most of the payment made by the 8^th complainant and a small portion of the 3^rd complainant’s payment, I deduct 2 months from count 3, resulting in a final sentence of 13 months and 6 months from count 8 resulting in a sentence of imprisonment of 6 months.
70. Consistent with the principle of totality, I adopt the Crowns proposal of deducting 50 % from each count resulting in the sentences below:
    1. Count 1 – 11 months;
    2. Count 2 – 8 months;
    100. Count 3 – 15 months;
    4. Count 4 – 10 months;
    5. Count 6 – 9 months;
    6. Count 7 – 10 months;
    7. Count 8 – 3 months.
71. The final aggregate sentence is 114 months or 9 ½ years’ imprisonment.

Suspension

72. The principles in Mo’unga^[6] do not favour the Defendant. He is not young or a first time offender. Further, despite being on bail on the condition not to engage in advertising vehicles amongst others, he proceeded to breach that condition by continuing to advertise vehicles for sale. I find the contention that he did not hear the conditions stated in court due to a hearing problem, preposterous. Those same conditions were printed clearly on the bail form he signed on 5 April, 2022.
73. As such, the Defendant has demonstrated his inability to respond to a deterrent and is unlikely to take the opportunity of a suspended sentence to rehabilitate himself. There is no diminution of culpability here and is described by the probation report as a person of “very high risk” to the community. I agree.
74. Lastly, in terms of the submission that the Defendant was the breadwinner for his family, it is well established that the breadwinner argument is not basis for suspension. In R v Vake [2012] TOCA 7, AC 4 of 2012, the Court of Appeal referring to its judgment in R v Motulalo [2000] Tonga LR 311, pg. 314 said:

"Later in that judgment the Court observed that the fact that the offender was the breadwinner for his family, was not, and is rarely likely ever to be, on its own proper reasons for suspending a sentence."^[7]

75. Having said that, I am mindful that this is the Defendant’s first custodial sentence and it would be crushing to require him to serve the full sentence imposed. Accordingly, I deduct 2 ½ years from the aggregate sentence, resulting in a final sentence of 7 years imprisonment and suspend the final 12 months of his sentence for 2 years on conditions.

Result

76. The Defendant is convicted of all 8 counts of obtaining money by false pretences and is sentenced to 7 years imprisonment.
77. The final 12 months of the sentence is to be suspended for a period of 2 years on conditions that during the said period of suspension, the Defendant is to:

(a) not commit any offence punishable by imprisonment;

(b) report to the probation office within 48 hours of his release from prison and thereafter as required by his probation officer; and

(c) (subject to him having undertaken them in prison) complete courses of life skills as directed by his probation officer.

78. 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.
79. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 6 years in prison to be backdated to 27 October, 2023 when he was remanded in custody.
    

NUKU’ALOFA	P. Tupou KC
1 March, 2024	Acting Lord Chief Justice

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^[1] Wheeler (Matthew) [2000] NSWCCA 34 (16 February, 2000) per Sully J at [36]-[37].
^[2] At 623-625;[1998] HCA 57; 103 A Crim R 372:72 ALJR 1416
^[3] Ivan Potas, Sentencing Manual; Law , Principles and Practice in NSW (2001), pg.27
^[4] Ibid, pg.344
^[5] Ibid. pg. 343
^[6] [1998] TLR at pg.157
^[7] R v Vake [2012] TOCA 7, para.19