R v Katoa - Sentence [2024] TOSC 32; CR 18 of 2024 (30 April 2024)

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

CR 18 of 2024

BETWEEN:
REX
Prosecution

AND:
‘ETUATE SIAOSI KATOA
Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Counsel J. Lutui (DPP) for the Crown Prosecution
Counsel F. Vaihu for the Defendant.

Date of Sentence: 30 April 2024

1. THE CHARGES

1. On 5 March 2024 , the Defendant pled guilty to the following charges:
   1. Count 1: Falsification of account contrary to section 159(1)(a) of the Criminal Offences Act.
   2. Count 2: Falsification of account contrary to section 159(1)(a) of the Criminal Offences Act.
   100. Count 3: Theft, contrary to section 143 and 144 of the Criminal Offences Act.
        

2. SUMMARY OF FACTS

2. The Complainant is Tony Raj Kumar, a 57-year-old male residing at Fangaloto. He is the manager of Anna’s Building Supplies (“business”) located in Kolofo’ou.
3. The Defendant is ‘Etuate Siaosi Katoa, a 31-years-old male, residing in Nukunuku. He works as a delivery driver for the business.
4. On or about 16 September 2023, the Defendant was at the business warehouse at Fangaloto loading building supplies to deliver it to a customer.
5. The business practice for managing the delivery of purchased items to customers are:
   1. The customer pays for their building materials at the business office in Kolofo’ou and a sales receipt is then issued to the customer and a carbon copy is retained in the office.
   2. A salesclerk then records the description and the quantity of the customer’s order in the driver’s delivery book – which is also a carbon copy receipt book.
   3. The salesclerk then returns the delivery book to the driver to take to the warehouse to load the items and deliver them to the customer.
   4. At the warehouse another employee must check that the materials loaded into the truck corresponds with the business delivery book; and
   5. The driver delivers the building material to the customer’s address and the original copy of the delivery book is signed by the customer and given to them.
6. At the warehouse, Aveave Fonua (“Aveave”) discovered that the amount of hardie flex sheets loaded by the Defendant into the delivery truck was greater than the amount on the delivery book.
7. Aveave told the Defendant the load exceeded the quantity that needed to be delivered. The Defendant responded that they would unload the excess materials.
8. Aveave took the Defendant’s delivery book to double-check the records and in reviewing two delivery receipts, she discovered there was a discrepancy in the total amount compared to the quantity itemized on the delivery receipt.
9. Aveave took a photo of the pages and the receipts and reported the matter to the Complainant and his partner Ruby, who were both in Fiji at the time.
10. The Complainant and his partner Ruby then contacted the Defendant and asked him about the changes he made on the delivery book. The Defendant admitted to them and said he made the changes so that he could take the excess material to fix his house.
11. The Complainant told the Defendant to stay behind after work so they can talk, as they would be returning to Tonga on that same day. The Defendant left the office and did not contact the Complainant.
12. The Complainant continued to review the sales receipts and delivery records which the Defendant was responsible for delivering. He discovered that this had occurred multiple times and had calculated the extra material which the Defendant has falsified in the delivery book and taken from the warehouse to a total amount of $19, 644 pa’anga for the months of August and September.
13. In August 2023, the Defendant falsified the business delivery book by inserting an additional number to the specified quantity or altering the number in the specified quantity, thereby increasing the quantity removed from the business warehouse from the actual quantity which was ordered and paid by the customers.
14. The Complainant summarised the loss in August to a total of $11, 689 pa’anga.
15. In September 2023, the Defendant falsified the business delivery book again in the same manner.
16. The Complainant summarised the loss in September to a total of $7,955 pa’anga.
17. The total loss summarised by the Complainant, came to a total of $19,644 pa’anga.
18. On or about the last week of August, up to the first week of September, the Defendant and Kolio Puafisi made several deliveries of excess building supplies to ‘Unaloto Vea at Puke and there were several drop offs to a house at Tofoa.
19. On or about 21 September 2023, the Complainant lodged a complaint to the police about the alleged falsification of the business delivery book by the Defendant.
20. On or about Friday 21 September 2023, at about 8:00 pm the Defendant was arrested by Police and held in custody.
21. On or about 26 September 2023, police interviewed the Defendant in relation to the allegation against him. The Defendant was given his rights and he cooperated with the police by confessing to the offending.
    
    100. AGGRAVATING & MITIGATING FACTORS
22. The Crown submits the following as aggravating factors in this case:
    1. The Defendant was in a position of trust, and he breached that trust.
    2. There was some premeditation and deception involved in the offending.
       
23. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pled guilty at the first available opportunity
    2. The Defendant is a first-time offender
    3. The Defendant was cooperative with the police
       
       4. RELEVANT LEGISLATION
24. Section 159 of the Criminal Offences Act states the maximum penalty for falsification of account is imprisonment for any period not exceeding 7 years.
25. Section 145(b) of the Criminal Offences Act states the maximum penalty for theft where the value of the things stolen exceeds $10,000 is imprisonment for any period not exceeding 7 years.
    
    5. PREVIOUS CONVICTIONS
26. The Defendant has no previous convictions.
    
    6. SENTENCING COMPARABLES
27. The Crown submits the following cases to assist the court in determining an appropriate sentence for the Defendant:
    1. R v Cocker 3 of 2013
28. The Defendant pled guilty to embezzlement, falsification of accounts and theft involving $99,450.
29. The Defendant is a first-time offender, married with a child, had a good education and was in senior position.
30. The Defendant was sentenced to 3 years imprisonment (from a starting point of 4 years and 6 month). The final year of her sentence was suspended on conditions.
    
    2. R v ‘Umukisia Tu’iono, CR 119 of 2012
31. The Defendant pled guilty to one count of forgery, three counts of falsification of accounts and one count of obtaining by false pretence.
32. The amount here totalled $4,000, the Defendant was also a first-time offender, contrite and pled guilty on the first opportunity.
33. Justice Cato, set a starting point of 3 years, reduced to 2 years for the early guilty plea and considered the Defendant’s good prospects for rehabilitation.
34. The final sentence for forgery and false accounting was concurrent 2 years of imprisonment, fully suspended on conditions.
    
    3. R v Salote Latu, CR 5 of 2013
35. The Defendant pled guilty to embezzlement, falsification of accounts relating to $15, 141.69. At the time of her arrest, she was senior officer with the Bank of ‘Eua.
36. The Defendant had been a hard-working teller when the frauds arose, a first-time offender and a strong religious background with support from her church.
37. The Defendant was sentenced to 2 years imprisonment with the final 12 months in her case suspended on the condition she commit no further crimes for a period of 2 years.
    
    4. R v Selemana Fonua [2018] TOSC 12; CR 197 of 2016 (29 March 2018)
38. The Defendant was employed as an administrative officer for Tanoa Hotels (Tonga) Ltd and was the officer in charge of the payroll in Tanoa.
39. The Defendant was found guilty of one count of theft and one count of falsification of account relating to $21, 299 pa’anga.
40. The Defendant was sentencing to concurrent sentences of 2 years imprisonment on each count and the final 6 months suspended on condition that she commits no further offence punishable by imprisonment during her suspension.
    
    7. CROWN’S POSITION ON SENTENCING
41. In considering the Defendant’s level of culpability and aggravating factors, the Crown submits that the appropriate starting point for the head count, count 3, in the instant case is 2 years imprisonment.
42. In consideration of the Defendant’s mitigating factors which are deserving of a discount, Crown submits a discount of 6 months reduction from the starting point. This is appropriate for the early guilty plea, lack of a previous conviction and the cooperation with Police, leaving a final sentence of 18 months’ imprisonment.
43. The appropriate sentences for Count 1 and 2 are 12 months imprisonment each. Since all three counts arose out of the same facts and during the same period, it is appropriate for the sentence for Count 1 and 2 to be concurrent to the sentence of count 3.
    1. Suspension
44. In considering the guideline in Mo’unga v R [1998] Tonga LR 154, the Crown is of the view that the Defendant should be granted partial suspension of his imprisonment sentence.
45. The Defendant is not young and is currently 31 years old. However, he is a first-time offender and at the earliest convenience he pled guilty to his charges and cooperated with police.
46. This demonstrates a likelihood to use a partially suspended sentence as an opportunity to rehabilitate.
47. The Crown proposes that the final 12 months of the Defendant’s sentence should be suspended on conditions for 2 years.
    2. Conclusion
48. The Crown submits the Defendant be sentenced to 18 months imprisonment.
49. The final 12 months of the sentence is to be suspended for a period of 2 years on the following conditions:
    1. Not commit any offence punishable by imprisonment
    2. Be placed on probation
    100. Report to the probation office within 48 hours after being released from prison
    4. To undertake and complete a life skills course at the direction of his probation officer
50. Considering the comparable sentences, the mitigating and aggravating factors against the Defendant, the Crown leaves it to the discretion of the court to determine the appropriate sentence.
    
    8. PRESENTENCE REPORT
       1. Personal History
51. The Defendant is age 32, male and the 2 out of 3 siblings born to Mr. Manase and Kalolaine Katoa from Fanga ‘o Pilolevu.
52. The Defendant was brought up in a decent Free Wesleyan Church family background where he has the full support of his church and community as well. His father is employed by MV. Kelesi Local Shipping as chief engineer and his mother is a teacher at the Salvation Army Pre-School at Sopu.
53. The Defendant is currently married (since) and is the father to three children from ages 2-6 years old. According to his wife and a letter of support from his church minister, he is a family man, a devoted husband, and a loving father to his young family. The Defendant is the sole breadwinner for his family.
54. The Defendant was employed by Ana Building Supplies as a delivery driver. The Defendant lost all the opportunities he would have had with his employer because of the offence he committed.
55. The Defendant is currently working as an engineer together with his father for the MV. Kelesi Local Shipping.
56. For education, the Defendant was in Tonga College Atele in 2004-2005 to Form 5. He did not sit the internal certificate exam.
57. The Defendant was a seasonal labourer for Australia in the seasonal worker’s scheme in 2014. He was then employed by the Complainant, Ana Building Supplies in 2022 and he committed the offence on or about the month of August and September 2023.
58. The Defendant has no health problems reported.
    
    2. Factors relating to the offending

The Defendant admits his offending and that what he did was wrong and cunning. He does not dispute any statement on the summary of facts, only adds that he is genuinely remorseful and deeply regrets his actions.

3. Assessment and Recommendation

59. The Defendant is a father figure to the lives of 3 very young children. He has been a dedicated husband and a persistent breadwinner who has never been out of options in providing for his young family.
60. Despite the offending, the Defendant is known to be a man of good character and a very responsible citizen in his community as confirmed by a reference letter from his town officer.
61. The probation officer is convinced that the Defendant is truly sorry and has made several attempts to apologise to his employer but has not been successful.
    
    1. MITIGATION PLEA
62. Counsel for the Defendant has submitted through a plea of mitigation for the Defendant.
63. Defence endorses the Pre-Sentence Report filed by Probation Division and is briefly set out above.
64. Counsel for the Defendant attached three reference letters from the Defendant’s church Minister, the town officer and program manager of the Salvation Army.
    
    1. Compensation
65. The Defendant is in no financial position to be able to provide any compensation to the complainant nor is counsel for the Defendant aware if the complainant’s business is insured.
66. The Defendant deeply regrets his offending and submits that he used the proceeds which is not the actual value of the goods, a very low amount to drink with his co-workers and now realises was very wrong to do.
    2. Rehabilitation
67. The Defendant is young and has a young family that depend on him for support and maintenance. Counsel for the Defendant submits, a fully suspended sentence would adequately deal with his offending. The Defendant would take this opportunity to turn a new leaf and not re-offend in the future.
    
    10. REFERENCE LETTERS FOR THE DEFENDANT
68. The references letters have been received by the court with regards to the Defendant mentioned above. I take these letters into account in considering the sentence for the Defendant.
    
    11. DISCUSSION
69. Another comparable case not mentioned by the Crown but I find relevant to the current case is the case of Rex v Tau'alupe [2017] TOSC 10; CR 47 of 2017 (12 May 2017). In that case the Defendant pleaded guilty to five counts of embezzlement and 3 counts of falsification of accounts whereby he collected a total of $20,025 and failed to account that money to his employer. This was done over a period of three months from December 2015 to February 2016.
70. The Defendant in Tau’alupe was 21 years old, had no previous convictions, assisted the police. The then Lord Chief Justice Paulsen set a starting point of 2 years and six months imprisonment. After deductions were made for mitigating factors, His Honor sentenced the accused to 1 year and six months imprisonment on each count of falsification of accounts to be served concurrently. The whole of the sentence was fully suspended on conditions which include community service.
71. Even though the accused in this case is not as young as Tau’alupe in the case above, I consider there are significant mitigating factors in his case that are very similar to those in Tau’alupe. He pleaded guilty at the first available opportunity, assisted the police, has a clean record and is remorseful for what he has done.
72. The maximum penalty for the offence of falsification of accounts is seven years imprisonment. Section 145 prescribes a maximum penalty for theft where the value of the thing stolen exceeds $10,000 of 7 years imprisonment. I accept that in cases like this sentences which discourage others from similar offending should be imposed;
73. For the head count in Count 1 I set a starting point of 2 years and 6 months imprisonment;
74. For the mitigating factors of an early guilty plea and the full cooperation he offered the police I allow him a discount of 9 months. I also give him credit for his previous lack of convictions and his genuine expressions of remorse and acceptance of responsibility. I allow another three months for these factors. That leaves a total of 1 year and six months imprisonment.
75. Turning to the question of whether I should suspend any part of the sentence I have considered the principles in Mo'unga v R [1998] Tonga LR 154 and note that a suspended sentence may be appropriate where an offender is young and of previous good character, is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities. Other than the accused being in his early thirties, most of the circumstances are applicable in this case. I believe that this offending was entirely out of character for Mr. Katoa and that he is a young man who, notwithstanding his offending, has a great deal to offer his community. He has made several attempts to apologize to the complainant which has understandably rejected. For those reasons a partial suspension of his sentence is warranted but subject to conditions.
    
    50. RESULT
76. On each count of falsification of accounts, and theft Mr. Katoa is convicted and sentenced to 1 year and six months imprisonment each to be served concurrently. The last 15 months is suspended for a period of two years on the following conditions:
    1. Mr. Katoa is not to commit any further offences punishable by imprisonment for a period of 2 years.
    2. He is to contact the probation officer within 48 hours of being released from prison;
    100. He is to complete the life skills program offered by the Probation office;
77. The accused is to serve a total of 3 months imprisonment.
    

NUKU’ALOFA: 30 April 2024

‘E. M. L Langi
J U D G E