R v Taulua [2024] TOSC 4; CR 160 of 2023 (7 March 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 160 of 2023

REX
-v-
SIONE TAULUA

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr J. Fifita for the Prosecution
Mr S. Taulua in person
Date: 7 March, 2024

The proceedings

1. On 14 December, 2023, the Defendant pleaded guilty to one count of theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act.

The offending

2. Sipiti Taulua (“Sipiti”), is the complainant in this matter. The stolen items were stolen from Mr. Latu Manu’atu’s residence at ‘Alakifonua, Tongatapu (“Manu’atu residence”). At the relevant, Sipiti was entrusted with the care of the Manu’atu residence while the Manu’atu’s were in Australia.
3. Sipiti is employed by the Origon Construction company. I understand he is a building supervisor. The Defendant, Sione Taulua (“Sione”), is Sipiti’s son who works under his father’s supervision in the same company.
4. Due to Sipiti’s busy role in the company, Sione and his family also lived at the Manu’atu residence to help out. Sione held keys to the house.
5. On the morning of 7 July, 2023, Sipiti returned from work to find the listed items below missing from the Manu’atu residence:

Quantity	Item	Total Value
20	Timber 62x6	$4,000
02	Rod steel pipe cornice MC 4x6	$600
05	5 cans of 15-liter paint	$1000
N/A	Tongan tobacco (500kg)	$500
01	Electric wire roll 500 meters	$1,500
05	Suitcase of clothes	$2,500
02	Gas Cylinder	$2,000
01	Sewing machine	$1,500
	Total	$13,600.00

6. According to Sipiti the said items were still at the Manu’atu residence on 5 July, 2023.
7. He subsequently discovered that Sione and his family had left the Manu’atu residence and moved back to his wife’s parents’ home at Nukuleka. His suspicion immediately turned towards his son. When Sipiti confronted Sione, he denied he was responsible for the missing items. Sipiti reported the theft to the police.
8. Meanwhile, on the morning of the offending Vaiula Fua, who is a neighbour of Sione’s in-laws at Nukuleka, saw a white truck pulling up to the Sione’s in-laws residence. She saw Sione take several suitcases inside his in-laws house.
9. On 8 July, 2023, police officers Mafile’o and Finau went with Sipiti to Sione’s in-law’s residence at Nukuleka. When they arrived, Sipiti went inside his son’s in-law’s house and brought out several suitcases. Sione was then arrested by the police officers.
10. On 10 July, 2023, Sione informed Officer Fahiua that there were more suitcases of clothing and a sewing machine at his residence. Police Officer Fahiua and others retrieved four suitcases of clothing and a brand new sewing machine from Sione’s in-law’s residence.
11. On 18 July, 2023, Sione admitted to the offending. He holds an unenviable list of previous convictions.

Crown’s submissions

12. The Crown submitted the aggravating features were:
    1. He is a recidivist;
    2. He breached his father’s trust as well as the Manu’atu’s trust in his father;
    100. The proximity of the offending to the expiration of his latest suspended sentence.
13. The Crown submitted the mitigating features were;
    1. The early guilty plea;
    2. The cooperation with Police;
    100. The recovery of some of the stolen items.
14. The Crown referred to the following comparable sentences:
    1. R v Lisiate Lakalaka (CR118/2021) –the Defendant pleaded guilty to one count of serious housebreaking and one count of theft. He broke into the Complainant’s house and stole a HP Laptop, a MacBook and an iPhone, total valued at $10,900.00. The theft charge was made the head count. A starting point of 2 years imprisonment was imposed, reduced by 8 months in mitigation. Defendant was not qualified for any part of his sentence to be suspended and his final sentence was 16 months imprisonment for the theft and 10 months imprisonment for serious housebreaking to be served concurrent.
    2. Rex v Penisiliti Malafu (CR133/2016) – the Defendant pleaded not guilty to one count of serious house breaking and one count of theft. He was convicted by a jury. The Defendant broke into the Complainant’s home and stole Tongan mats that were heirlooms and irreplaceable, valued at more than $15,000.00. A starting point of 3 years and 6 months imprisonment was imposed. The were no mitigating factors in his favour and he was sentenced to 3 years and 6 months imprisonment for the serious housebreaking and a concurrent 2 years imprisonment for the theft. The final 6 months was suspended.
    100. Rex v Kelikupa Maile (CR133/2019) – the Defendant pleaded not guilty to one count of serious housebreaking and one count of theft. He was found guilty after the trial. The stolen items included Tongan mats, electronic equipment, perfumes, lotions and Tongan oil, valued at about $14,900. A starting point of 3 years and 9 months imprisonment was imposed for the serious housebreaking as the head count with a deduction of 6 months in mitigation and 2 years and 6 months imprisonment for the theft. The two sentences were to be served concurrently with the final 12 months suspended.
    4. R v ‘Amini Liku (CR47/2019) – the Defendant, an 18 year old male, pleaded guilty to one count of serious house breaking, and one count of theft. He stole items that were valued at $13,900 including TVs, mini freezer and gaming systems. He was sentenced to 2 years and 3 months imprisonment for the housebreaking and 2 years for the theft to be served concurrently.
15. The Crown submitted a custodial sentence was appropriate in this instant. A starting point of 2 ½ years’ imprisonment was suggested with a deduction of 8 months in mitigation for the early guilty plea, cooperation with the authorities and recovery of some of the stolen items.
16. In terms of suspension, the Crown acknowledged the Defendant is entitled to a suspended sentence in line with Mo’unga v R CA 15/97. It was recommended for the final12 months to be suspended for 2 years on conditions.

Pre-sentencing report

17. Sione is 36 years of age. He is the 2^nd of 8 children of Sipiti and Lu’isa Taulua of Tongatapu. Four of his siblings reside abroad and 4 have remained in Tonga, including Sione.
18. The Defendant attended the Malapo Primary School and then the Pakilau Middle School where he completed Form 2. He entered Liahona High School for Forms 3 and 4 and then transferred to Tonga College. He attended Tupou College for 5^th form and then dropped out of school for good.
19. In 2013, he married Maria Sofia Taulua of Nukuleka. They have six children. The eldest being 10 years old and the youngest 1. They presently live at Malapo at his parents’ home.
20. Sione is a member of the Church of Jesus Christ of the Latter-Day Saints. He is generally healthy and as mentioned earlier, works with his father at the Origon Construction company. He earns $400 - $500 per week.
21. Maria told the Probation Officer that on the day of the offending, the Defendant told her to move their family back to Nukuleka. They did. She said Sione is the sole financial provider in their family.
22. Sipiti told the Probation Officer that on the day of the offending, when he returned to the Manu’atu residence, he noticed a broken window and suspected the house had been broken into. He discovered that Sione had moved back to Nukuleka and immediately suspected him. Upon confronting Sione, he denied having any knowledge of the stolen items. So, he filed a complaint with the police.
23. Sione’s version of the offending acknowledged that his parents resided at Mr Manu’atu’s residence and he and his family would visit them frequently. Due to his father’s work commitments, his father let him and his family take care of Mr Manu’atu’s residence.
24. On the night of the offending he and others went to the Manu’atu residence and found the door unlocked. They went in and removed the items, placed them in their vehicle and took them to his in-laws’ residence at Nukuleka.
25. The probation officer reported that Sione initially admitted the offending and then had a change of heart and denied it. Although his parents apologised to the Manu’atu’s for what happened, Sione chose not to. She formed the view that Sione was unreliable and not trustworthy.
26. Sipiti told the officer that all of the stolen goods were returned and that the family have noticed a change in Sione’s behaviour.

Starting Point

27. The maximum statutory penalty for theft of goods exceeding the value of $10,000 is 7 years imprisonment.
28. It is a well-established principle now that for purely property offences, imprisonment is not appropriate unless there are unusual circumstances that render imprisonment necessary.^[1]
29. Here, the Crown submitted imprisonment was appropriate “according to the relevant laws, offending and the relevant authorities cited.” Special circumstances arising from the facts of this case were not specified.
30. In R v Kolomalu^[2] , factors of trust, the amount of money involved and systematic offending were held to amount to unusual circumstances that rendered imprisonment necessary. Here, the Defendant’s access to the property by way of the owner’s trust in his father to protect his property and his recidivism, in particular 3 convictions for similar offending for which he had served imprisonment terms, in my view, amount to special circumstances that render imprisonment necessary.
31. Therefore, having regard to the seriousness of the offence, the value of the stolen items and the impact on the owners, the comparable sentences and sentencing objectives of punishment, deterrence, denunciation and protection of the community, I set a starting point of 2 ½ years imprisonment.

Mitigation

32. As submitted by the Crown, the Defendant’s guilty plea, cooperation with the authorities that assisted in recovery some of the stolen items, I agree that a discount of 30% off the starting point is appropriate and deduct 10 months off the starting point. The result is a final sentence of 20 months imprisonment.

Suspension

33. The Crown supports a suspension of 12 months of the Defendants sentence for a period of 2 years on conditions on a view that the Defendant’s “criminal culpability was low as he may have been coerced by his mates...” Further the Crown concluded that his cooperation with the police and return of some of the stolen goods indicated remorse, acceptance of guilt and potential for rehabilitation.
34. However, as against the principles in Mo’unga, the Defendant is not young and holds previous relevant convictions. I do not accept that there was no premeditation. The Defendant had moved his family from the Manu’atu residence to Nukuleka that morning and came with others in a vehicle to the Manu’atu residence for the purpose of removing the stolen items and transporting them to his in-laws’ home.
35. Similarly, I do not accept the Defendant's culpability was diminished because he may have been coerced by his mates. Nor that his cooperation with the police and the return of some of the stolen goods was an indication of his remorse, acceptance of guilt and preparedness for rehabilitation. There was simply nothing to indicate any coercion and his cooperation with the authorities and return of the goods have already been taken account for in mitigation.
36. The Probation Officer was not convinced of his remorse. However, when he appeared before me on 1 March, 2024 he told me that he regrets what he did; knows that it was wrong; he is remorseful about his behaviour and he will not conduct himself like that in the future. He said he was the sole breadwinner for his family.
37. I accept his expression of remorse but as mentioned, he had not offered the Manu’atu’s an apology or compensation for the goods stolen but not returned. I have also considered the favourable letters from Sipiti and the town officer of Malapo.
38. In relation to the Defendant’s personal circumstances or those dependent on him, the breadwinner plea does not, on its own justify a fully suspended sentence.^[3] Further, there is no suggestion that his wife is incapable of looking after their children.
39. In assessing the likelihood of the Defendant taking the opportunity offered by a suspended sentence to rehabilitate himself, I look at his previous relevant record and understand he has served a total of 8 months imprisonment for theft. His criminal offending has since progressed to alcohol and drugs for which he was sentenced to serve 2 years and 3 months in prison. Fifteen months of that sentence was suspended.
40. This court has been cautious in exercising its discretion to suspend sentences so as not to risk sending an erroneous message to the community that the Courts tacitly condone or acquiesce to criminal behavior.^[4]
41. In CR 53 of 2023 R v Tatafu, His Honour LCJ Whitten KC in balancing the Defendant’s interests and rehabilitation on the one hand and the community’s interests and the other sentencing objectives on the other, he suspended half of the Defendant’s sentence in that matter.
42. Here, the Defendant’s recidivism and failure to use the opportunity of a previous suspended sentence to rehabilitate himself, strongly indicate that suspending any part of the Defendant’s sentence will risk the court appearing to tacitly condone or acquiesce this kind behaviour. I have taken account of his expression of remorse in court against the strong adverse observations against his character by the probation officer. I further note that the Defendant has benefitted from not being charged for housebreaking. For those reasons, I refuse to suspend any part of the Defendant’s sentence.

Result

43. The Defendant is convicted for theft and sentenced to 20 months imprisonment.
44. Subject to any remissions available under the Prisons Act, the Defendant will be required to serve 1 year and 8 months imprisonment.
    

NUKU’ALOFA	P. Tupou KC
7 March, 2024	ACTING LORD CHIEF JUSTICE

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^[1] Mo’unga v R [1998] TLR 154
^[2] [2012] TOSC 25
^[3] Fonokalafi [2022] TOSC 92, at [38]
^[4] CR 53 of 2023 R v Tatafu