R v 'Ailolo [2024] TOSC 39; CR-VAV 3 of 2023 (26 April 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

CR-VAV 3 of 2023

BETWEEN:
REX
Prosecution

AND:
‘EVA ‘AILOLO
Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Counsel S. ‘Eliesa for the Crown Prosecution
Counsel L. Fonua for the Defendant

Date of Sentence: 26 April 2024

1. THE CHARGES

1. On 19 April 2023, the Defendant was found guilty by the jury on the following charge:
   1. Count 1: Embezzlement contrary to section 158 of the Criminal Offence Act.
      

2. SUMMARY OF FACTS

2. The Defendant is ‘Eva ‘Ailolo (a.k.a ‘Eva ‘I Pomana Tau’ese), 28 years old from Holonga, Vava’u. Between December 2021 and November 2022, the Defendant was a bank teller at the Tonga Development Bank (“TDB”), Vava’u Branch.
3. On or about November 2022, TDB Head Office in Nuku’alofa received an enquiry from Duran Ormond, a manager of the Church of Jesus Christ of Latter-Day Saints (“LDS Church”), Pacific Division, based in Utah, USA. The enquiry was in relation to cash deposits made to LDS Church account 150325-S40. Which had not posted into the account.
4. The unaccounted amount was $3,765.00 deposited on 28 December 2021, $1,580.40 on 5 September 2022, $4,260 on 3 October 2022, and $345 on 28 October 2022 at the TDB Vava’u Branch. These deposits were cash from Sunday church tithe offerings collects by the LDS Church Wards of Ha’alaufuli, Ta’anea and Holeva, Vava’u.
5. The TDB head office investigated the matter and they realised they could not locate their copies of the receipts for the said deposits. TDB sought and obtained the LDS Church copies of those said receipts. TDB Vava’u supervisors Kolokesa Paunga (“Kolokesa”) and Sione Mā (“Sione”) confirmed from the signature on those receipts that received the deposits belonged to the Defendant.
6. TDB protocol is for Bank Tellers to remain after the bank closes to compare the cash they received in deposits with their copy of the receipts.
7. Kolokesa confronted the Defendant in relation to the missing funds. The Defendant was asked to provide a written statement to explain the irregularities.
8. On 23 November 2022 the Defendant wrote a letter to her supervisors where she apologised the for unaccounted cash and said she realised the cash shortage of $2,000 during her afternoon check on 5 September 2022 so she used the cash deposits of September 2022 and her own money to cover the shortage. For the cash shortage of $4,260 on 3 October 2022, she had put it in her cabinet and forgot to actually post it in the LDS Church account and she had already done it after the church irregularities was discovered.
9. The Defendant was then instructed to take leave pending an internal investigation. An internal auditor from TDB Office, Samiu Fifita (“Samiu”) was sent to Vava’u to investigate the matter further.
10. Samiu realised when he began his work that the amount of unaccounted cash was more than they initially thought, he also noticed that the Defendant’s work cabinet was still locked and by then she was on leave and had the key with her.
11. A staff member was instructed to force the cabinet open in which they discovered various receipts for cash deposits in relation to numerous accounts, and there was no cash found in the cabinet. Samiu located the Defendant and bought her to the bank to see the receipts that were found in her cabinet.
12. On 3 December 2022, the Defendant wrote another letter to her supervisors to apologise and to inform them that she wrongfully kept the receipts for the cash deposits she received, and she did not post the finds into these accounts. She kept this from everyone because she was scared but never attempted to destroy the receipts.
13. On 29 December 2022, Samiu submitted a report of his findings from the internal investigation. Samiu highlighted the missing cash with the respective account effected based on the receipts found in the Defendant’s cabinet.
14. Only $9,950.40 of the total $ 72,857.60 unaccounted cash has been settled and returned to the respective accounts. A total of $4,110 was settled by TDB and a total of $5,840.40 was settled by the Defendant.
15. A remaining total of $62,907.20 has not been settled and returned to the respective accounts, TDB has undertaken to redeposit that remaining account.
16. On 5 January 2023, CEO of TDB ‘Emeline Tuita lodged a formal complaint with the Police and submitted their findings from their internal investigation.
17. The Defendant did not cooperate with Police and exercised her right to remain silent.
18. The Defendant does not have any previous convictions.
    
    100. AGGRAVATING & MITIGATING FACTORS
19. The Crown submits the following as aggravating factors in this case:
    1. The amount embezzled is significant ($72,857.60)
    2. The Defendant was in a position of trust, she breached the trust of her employer (TDB). She was the teller, and she was the one who received the money that is the subject of this case.
    3. The Defendant has not repaid any of the aforesaid amount to the bank or customers.
    4. The Defendant’s actions were intentional and planned out. That is supported by the fact that taken amount is substantial and it commences from 28 December 2021 to 18 November 2022. It is submitted, that the Defendant’s embezzlement were planned out causing these transactions to remain unnoticed until the complaint from the LDS church that instigated the internal audit.
    5. The Defendant intended to deceive the TDB because she never informed them of any mishappening. But for the Audit’s investigation, the Defendant’s embezzlement was discovered.
    6. The Defendant showed no remorse for her action which is indicated by her not guilty plea and her allegation that her letters to TDB on 30 November 2023 and 2 December 2023 were coerced by Kolokesa Paunga. Furthermore, she admitted during her cross-examination that some contents of her letter of 2 December 2023 are false.
    7. The Defendant made some serious unjustified allegations against the TDB. Such as, it was Kolokesa Paunga who authorised her to make withdrawals and holding of deposits that were the subject of this trial. In addition, she claims that the TDB system is corrupted and only the employees are aware of it. Furthermore, she claims that about 100K to a million is unaccounted for at the TDB here at Vava’u.
       
20. The Crown submits the following as mitigating factors in this case:
    1. The Defendant’s lack of previous conviction.
    2. The Defendant’s limited cooperation with the Internal Auditor. That is, the Defendant’s willingness to give Samiu Fifita the folder that contained the vouchers marked as Exhibit 7.
       
       4. PREVIOUS CONVICTIONS
21. The Defendant does not have any previous conviction.
    
    5. RELEVANT LEGISLATION
22. The penalty for embezzlement is in section 158 of the Criminal Offences Act. The penalty is imprisonment for any period not exceeding 7 years.
    6. SENTENCING COMPARABLES
23. The Crown submits the following cases to assist the Court in determining an appropriate sentence:
    1. Wall v R [2001] Tonga Law Report 42; [2001] Tonga LR 238
24. The Defendant here pled guilty to 11 counts of embezzlement totalling at $181,008 while he was working as the Tongan representative for MMI Service Pty Ltd, an Australian insurance company.
25. The Defendant signed on the cheque and obtained the signature of Natu Lui the ICT manager to make withdrawals to pay some claims for policy holders. He used the money for overseas trips, gifts, shopping, and various other personal expenses.
26. The Defendant had authority to sign cheques, withdraw money from company’s claim and pay company expenses and claims.
27. He pled guilty, lacked previous conviction, good character, and an impressive work record. The court accepted his was genuinely remorseful for his actions, recognised the harm he caused and the damage to his employer by writing a letter of apology for his conduct.
28. The sentencing judge imposed a sentence on 5 years for each of the 11 counts be served concurrently with the final 12 months to be suspended for two years. The Defendant appealed against his sentence.
29. Court of Appeal repealed the initial sentence and gave the Defendant 4 years with the final 12 months suspended for two years. The Court of Appeal found the initial sentence to be too excessive.
    
    2. Rex v Pousini, CR 15 of 2017
30. The Defendant pled guilty right before the trial commenced to one count of embezzlement and one count of money laundering. He was the office co-ordinator for any insurance company known as FAT. The company is owned by the Complainant TM, TM’s husband and one other person.
31. The Defendant was responsible for 14 cheques drawn from her employer’s bank account totalled to be $73,276. The Defendant paid $38,426 to TM’s account and used the remaining $34,400 for herself. On this later aspect, the Defendant used $4,000 to repay the shortfall, $1,000 to make up an amount requested by TM, $8,900 and $6,532 were held in a bank account for the Defendant’s friend. Altogether $15,000 remained unaccounted for.
32. A starting point of 2 years and 6 months was adopted because this is a serious offence, the amount taken is significant and the Defendant’s offending was repeated on 12 occasions over a period of two months which was motivated by greed.
33. The Defendant is a first-time offender, has good character and cooperated with the Police. A notable feature of this case is that, the Defendant TM played a role in the Defendant’s offending and was accepted by the sentencing Judge that TM told the Defendant to add something for herself or at least must have been aware that she was doing so. Furthermore, the Court accepted that TM who was older and in a position of authority over her influenced the Defendant and one may regard TM’s conduct to be involving a good deal of suspicion which may create the circumstances that lead to the Defendant’s offending.
34. The Defendant was sentenced to 1 year and 5 months imprisonment for embezzlement and was fully suspended for 2 years on these reasons:
    1. The Defendant is young (21 years old) and of previous good character;
    2. Likely to take the opportunity offered by the suspended sentence to rehabilitate;
    100. Cooperation with the authorities
    4. Was under the influence of an older person in a position of authority over her
    5. Young and intelligent and must have a lot to offer to her community.

3. Rex v Stephanie Cocker, CR 3/13

35. The Defendant pleaded guilty to charges of dishonesty; embezzlement, falsification of accounts and theft. She had converted a sum of $99,450.10. There were a large number of conversions over a period of about two years.
36. The Defenant was a first offender aged 27 was married with one child, had received a good education, was a senior officer and had good references.
37. The starting point I considered appropriate in her case was 4 ½ years. This, by Tonga standards, appeared to me to be significant offending. After taking into account her early guilty plea, and the fact that she was a first offender and other favourable references, I reduced the sentence to 3 years.
38. Because I considered her early plea demonstrated her genuine contrition, I suspended the final year of her sentence by 1 year on condition she commit no further crimes punishable for two years.
    4. Rex v Mo’ui Loketi & Ors, CR 6 – 10 of 2013
39. The Defendants (Mo’ui Loketi, Fifita ‘Uluhea Latu, Sione Matafah and Tavake Kaufusi) were found guilty for embezzlement after a lengthy trial. Mo’ui Loketi was a teller in about 30 transactions over a period between July 2009 to August 2011 and stole about $12,303.79.
40. The starting point imposed is 2 years and 3 months imprisonment. 6 months is deducted for her previous good character. The final 6 months of her sentence is suspended for 12 months.
41. Fifita Latu was involved in about 19 transactions and is responsible for the loss of about $30,917.60. A starting point of 2 years and 9 months imprisonment was imposed. 6 months was deducted for his previous good character having a sentence of 2 years and 3 months. The final six months of her sentence is suspended for 12 months. Sione Matafahi was involved in about 20 transactions and embezzled $30,419.12. A starting point of 2 years and 9 months imprisonment 6 months was mitigated for his previous good character making a sentence of 2 years and 3 months.
42. In relation to suspension, the final four months of his sentence was suspended for a period of 12 months. Tavake Kaufusi was the chief cashier and embezzled $41,301.03. A starting point of 3 years and 9 months imprisonment was imposed. 13 months was reduced making a sentence of 2 years and 8 months. In relation to suspension, 9 months of the final year was suspended for 2 years.

Misinale v R [2000] Tonga LR 322

43. The Defendant was found guilty for embezzlement after a following a trial by jury. The Defendant between the months of April and October 1995 embezzled $47,310.23 the property of others received in the course of his employment as the Accountant of Primary Produce Export Limited.
44. Over a course of six months, the Defendant systematically stole $47,310.23 by deducting sums from amount due to growers of watermelon, squash and vanilla, or by not recording certain details. The money was used by the Defendant for drinking and spending and none of it were recovered.
45. The Defendant was a first-time offender and had a good character. The Defendant was sentenced to 3 years imprisonment with the final 12 months suspended for 2 years on conditions.
    
    7. CROWN’S POSITION ON SENTENCING
46. According to the relevant laws, the circumstances of this offending and the relevant authorities cited illustrate it is appropriate to impose a custodial sentence.
47. With reference to the seriousness of the offending, the aggravating features of the offending, and the case comparable a starting point of 3 ½ years’ imprisonment is recommended. The recommended starting point is with the range of Wall v R, R v Pousini and R v Stephanie Cocker. The Crown submits that the starting point should not be lower than Pousini or higher than Wall or Cocker. Although the total embezzled sum in Pousini is similar to that of this case which is about $70,000 plus. However, the starting point in Pousini should not be imposed because the Defendant in this case pleaded not guilty and paid $5,000 plus back to the impacted customer. As in Pousini¸ she pleaded guilty and only a sum of just above $10,000 was not recovered.
48. In relation to mitigation, the Crown submits that 6 months is deducted for the Defendant’s previous good character and her limited cooperation with the Internal Auditor. Therefore, the remaining sentence is 3 years imprisonment.
49. In relation to suspension, the Crown submits that the Defendant is entitled to a partial suspended sentence. After applying this case to the principles in R v Mo’unga [1998] Tonga LR 154. The factos favouring suspension is her lack of previous conviction and likelihood to take the chance of a suspended sentence to rehabilitate herself. On this aspect, this case should be distinguished from Pousini, as a result with no full suspension awarded. This case is similar to that of Mo’ui Loketi & Ors and Misinale where the Defendants in those cases were convicted after a trial and faced imprisonment with partial suspended sentences. Similar to that of Wall and Cocker, the amount of money embezzled is significant which warrants a partial imprisonment sentence. Therefore, the Defendant in this present case is entitled to a partial suspended sentence.
50. It is submitted that the Defendant is to be sentenced to 3 years of imprisonment the final 6 months suspended on conditions for a period of 2 years.
51. 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
52. The Defendant is the third child out of five. Two have been adopted to paternal relatives and the remaining including the Defendant was bought up with her parents at Holonga. Relationships was reported to be good and happy.
53. In April 2011, the Defendant’s mother passed away, then her father was later remarried and had two additional children. The Defendant’s brother, Bishop ‘Ailolo stated, she is a good-natured person and cares a lot for her family. The Defendant currently lives separately with her sister, providing all the financial support for their living costs.
54. The Defendant also gave birth to her illegitimate son in Feburary 2024. The child is still under-going the legal process for adoption by Bishop ‘Ailolo and his wife.
55. The Defendant attended and graduated from High School at Saineha in 2014.
56. She is a member of the Mormon Church of Holonga, both Bishop ‘Ailolo and President Savou highly recommend the Defendant as a strong and active member of the church youth group.
57. President Savou stated even though the Defendant made mistakes and wrong decisions, she is strong in accepting failure, repent and make new directions in her life. The church community continues to support the Defendant during this very difficult time.
58. The town officer disclosed the Defendant was of good character and has been one of the good leading youth members in church and village activities.
59. The Defendant is generally healthy, she is currently recovering from the process of giving birth to her son in February. The Defendant in her free time spends it with her family members.
60. In March 2023, the Defendant was recruited as a Sales Representative at E.M Jones Vava’u. She earns an average income of $300 per fortnight from her job.
61. The Defendant has loan repayments with Federal Pacific Insurance with a balance of $80,000. The repayment is supposed to be $220 per fortnight but is behind due to her dismal from her previous job with TDB.
62. The Defendant was an employee of TDB in 2021, in about a year she was dismissed in relation to the charge of this offence.
    2. Response to the verdict and the offence
63. The Defendant accepts the jury’s decision in finding her guilty of the offence, but she remains her position of being not guilty. The Defendant explained the only thing what she did in the offence was authorised by the Bank Manager and her supervisor was aware.
64. On interview with several community leaders, they all agree that the offence is out of character for the Defendant. She has never showed any signs or manner of behavioural problems that would indicate and raise suspicion for the huge amount of money in this offence.
65. Despite the challenges and the struggles since the beginning of the trial, the Defendant remains firm in her stance of being not guilty in this offending.
66. The Defendant has accepted whatever sentence the court may impose and is grateful to receive the support of her family and community.
    
    3. Assessment
67. The Defendant is at “low-risk” for re-offending given her previous good character and the support from her family.
68. The Defendant is a young adult with immature thoughts lacking the skills and the knowledge to make good decisions.
69. The Defendant shows strong prospect of effective rehabilitation.
    
    4. Recommendation
70. The Defendant be given a partly suspended sentence on the following conditions:
    1. The Defendant report to the probation office within 48 hours of being released
    2. Be placed on probation
    100. No commit any offence punishable by imprisonment
    4. Undergo a course on life skills under the direction of the probation officer.
       

1. REFERENCES SUBMITTED ON BEHALF OF THE ACCUSED

71. The court received several references on behalf of the Defendant. These include a letter from stake president of the Vava’u North Stake and Holonga’s town officer to name a few. I note these references in considering the Defendant’s sentence.
    
    10. MITIGATION PLEA
72. Counsel for the Defendant submits the following as a mitigation plea:
73. The Defendant is 28 years old, unmarried and currently a sales assistant at EM Jones. She also has a 2-month old baby who is customarily adopted to her brother.
    1. Mitigating Factors:
74. No previous conviction.
75. Young and if given a second chance will take it towards rehabilitation.
76. Genuinely remorseful
77. The offending is out of character for she is a trustworthy employee at her current employment.
    2. Sentencing:
78. Defence submits a starting point of 2 years imprisonment as an appropriate starting point.
79. Due to her mitigating factors highlighted here, and the letters of support provided, that speak to her character, Defence submits a sentence of 12 months’ imprisonment.
80. Defence also submits a full suspension for the sentence as the Defendant falls within majority of the considerations outlined in R v Afeaki [2020] TOSC 43; CR 208 of 2019 (7 February 2020).
81. Alternatively, a substantial amount of the suspension be given considering the principles in Mo’unga.
82. Given the above mitigating factors, Defence leaves it to the discretion of the Court to determine the appropriate sentence.
    
    11. DISCUSSION
83. Embezzlement is a serious crime. It involves a breach of trust and for that reason is often difficult to detect. Without trust the commercial community cannot function effectively as employers must be able to trust their employees and unless businesses can function and flourish there will be few employment and commercial opportunities for the people of Tonga (Wall v R [2001] Tonga LR 238 and R v Bloomfield [2013] Tonga LR 165). For this reason the Courts have made it clear that in cases of embezzelement a penalty which deters such offending in the offender and in others is required. The courts take a dim view of offending of this kind. It is the case that the Defendant deliberately breached the trust of his employer on several occasions.
84. The offending would not have come to light if the representative from the Mormon church had not followed up the deposit made to the church account. It was through that complaint and consequent investigation that the bank realized that the accused had received many more deposits which had been receipted but not posted.
85. In my view there are limited mitigating factors in favor of the accused other than that she is remorseful and has no previous convictions and has otherwise been of good character.
86. However, she did not cooperate with the police and pleaded not guilty to the charge.
87. The maximum penalty for the offences of embezzlement seven years imprisonment.
88. Looking at Ms. ‘Ailolo’s offending as a whole and particularly having regard to the amount of money she embezzled, the number of times she did it, the period over which they occurred and the fact that Ms. ‘Ailolo was in a position of trust I agree with the Crown submissions that a sentence of imprisonment should be imposed.
89. I also agree that the appropriate starting point for the purposes of sentence is two years and 6 months imprisonment as recommended by the Crown.
90. I give her credit for her lack of previous convictions and allow her a discount of 9 months imprisonment. That leaves a total of 1 year and 9 months imprisonment.
91. 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. These circumstances are applicable in this case. I believe that this offending was entirely out of character for Ms. ‘Ailolo and that she is a young woman who has a great deal to offer her community. For those reasons a partial suspension of her sentence is warranted but subject to conditions.
    
    50. RESULT
92. On the count of embezzlement Ms. ‘Ailolo is convicted and sentenced to 1 year and nine months imprisonment.
93. The final twelve months is suspended for two years on the following conditions:
    1. She is not to commit any further offences punishable by imprisonment for a period of 2 years.
94. The accused is to serve 9 months of imprisonment;
    

NUKU’ALOFA: 26 April 2024

‘E. M. L Langi
J U D G E