R v Havea [2024] TOSC 42; CR-VAV 6 of 2024 (30 April 2024)

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

CR-VAV 6 of 2024

BETWEEN:
REX

AND:
MELE SOLOI MALO HAVEA

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Counsel J. Lutui (DPP) for the Crown Prosecution
The Accused in Person

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: Impersonating a customs officer contrary to section 98 of the Customs and Excise Management Act
   2. Count 2: Impersonating a customs officer contrary to section 98 of the Customs and Excise Management Act
   3. Count 3: Impersonating a customs officer contrary to section 98 of the Customs and Excise Management Act
   4. Count 4: Impersonating a customs officer contrary to section 98 of the Customs and Excise Management Act
      

2. SUMMARY OF FACTS

2. The Defendant is Mele Soloi Malo Havea, a 35-year-old female residing in Fungamisi Vava’u.
3. On or about the month of July 2023, the Defendant arrived in Vava’u and lived at her uncle’s house in Leimatu’a. She stayed with one Saane Kafoa, who confirmed the Defendant told her she was transferred from Tongatapu to work at Vava’u customs.
4. Saane also confirmed during the Defendant’s stay here, she would often be a tou’a (female server of the kava) at several kava clubs in Leimatu’a.
5. Sometime between July and August, the Defendant was wearing a customs uniform and present at a faikava club in Leimatu’a as a tou’a. The Defendant told people at the faikava club that she was an officer from Tongatapu. Present at that time was Alo Vulangi a customs officer in Vava’u, Amini Vea, Pati Vave and others.
6. On or about 11 July 2023, Detective Tapueluelu and Potesio Hefa stopped by FIAS Chinese shop to purchase a few items. Inside the shop, Potesio observed the Defendant standing with the shopkeeper at the cashier counter and overheard her telling the shopkeeper that the goods are dusty, if not cleaned by the next time she shows she would close the shop.
7. Once the Defendant exited the shop, Det. Tapueluelu and Potesio observed the Defendant was not wearing the standard customs officer uniform. Instead, she was wearing a patterned puletaha with a kiekie and an identification card. The Defendant left in a rental car next to the Chinese shop, J R Trading.
8. At J R Trading, the Defendant took a damaged canned tuna and corned beef which were valued at about $42. A shop assistant named Tongaleva Hala believed the Defendant was an officer because she was wearing respectable clothing and had a customs ID card. The Defendant also told the Chinese shop keeper Xing, that she is an inspector from Tongatapu.
9. Later that day, Det. Tapueluelu returned to Neiafu Police Station where a person of Chinese national named Luke was making a complaint about his rental car which had not been paid in full. Det. Tapueluelu overheard the description of the rental car and recalled it was the same rental he had seen the Defendant drive.
10. Police set out to locate the rental car and found it parked at Xiao Ting Guo Chinese Shop or more commonly known as Saufaupula Chinese Shop (“XYG”). Det. Tapueluelu spotted the Defendant walk out of XYG shop with a can of baking powder.
11. Det. Tapuelulu invited the Defendant to go to the Police Station as there had been a complaint regarding the rental car she was driving. The Defendant accompanied the Police to the station.
12. Sargent Penisoni and the Defendant got off at Neiafu Police Station while Det. Tapueluelu went to the Customs Office and picked up Talita Fisi’ihoi, for the purpose of confirming whether the Defendant is a customs officer.
13. Talita confirmed that the Defendant does not work at the Customs office in Vava’u, and she also confirmed with the main Customs office in Tongatapu that she has never worked as a customs officer. Talita further stated that as practice, customs officers must always wear their uniform whilst on duty.
14. Det. Tapuelulu then went to Luke’s shop and there he got a proper look at the Defendant’s ID card which also stated the Defendant’s name. The Defendant also told Det. Tapueluleu that she is an officer from Tongatapu but was in Vava’u for work purposes.
15. On 12 July 2023, Police arrested and charged the Defendant from her residence in Leimatu’a for impersonating a custom’s officer. Police also returned with a Customs ID and a Custom’s uniform shirt.
16. On 13 July 2023, the Defendant indicated to Officer Paseka that she would like to speak about her offending. The Defendant was cautioned of her rights and admitted to the offending and further alleged that she did the inspections because she was told to by Alo Vulangi.
17. Alo states the first time he met the defendant was at a faikava where she was the tou’a. He had befriended her but during the course of their friendship, Alo denies ever telling the Defendant or authorising her to conduct inspections at the Chinese shops in Vava’u as a customs officer.
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 offence of impersonating a public servant undermines the role played by the government in our society and diminishes public confidence in public servants and their functions.
    2. The offending was premeditated.
    3. The Defendant gained an advantage from the deception.
20. The Crown submits the following as mitigating factors in this case:
    1. The Defendant is a first-time offender
    2. The pled guilty at the first available opportunity
    3. The Defendant was, to a certain extent, cooperative with the Police during the investigation.
       

4. RELEVANT LAW

21. The Penalty for impersonating a Customs Officer is a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years, or both per section 98 of the Customs and Excise Management Act.
    
    5. PREVIOUS CONVICTIONS
22. The Defendant has no previous convictions.
    
    6. SENTENCING COMPARABLES
23. This is the first prosecution under section 98 of the Customs and Excise Management Act. Accordingly, there are no sentencing precedents here in Tonga.
    
    7. CROWN’S POSITION ON SENTENCING
24. Based on the offending, a custodial sentencing is appropriate in this case.
25. Count 2 is the most serious offence, the Defendant had identified herself as a Customs officer despite not being one. On the other instances, the Defendant as only acted in a manner that would imply, she was a Customs officer.
26. Considering the circumstances in this case Crown submit a starting point of for the Head Sentence be 30 months’ imprisonment.
27. The Defendant has mitigating factors which is deserving of a discount. Crown submit a 12-month reduction to the starting point to reflect the Defendant’s mitigating factors.
28. The appropriate sentence for Count 1 and 3 is 14 months imprisonment each and the appropriate sentence for Count 4 is 10 months.
29. As the offending in Counts 1,3 and 4 arose in close progression of each other, it is appropriate for the sentences for these Counts be concurrent to the sentence of Count 2.
    
    1. Suspension
30. In considering the guidelines established in Mo’unga v R [1998] Tonga LR 154, Crown is of the view that the Defendant should be granted a full suspension of her imprisonment sentence.
31. The Defendant is not young, at 33 years old, she is a first-time offender and cooperated to a certain degree with the Police and at the earliest opportunity she pled guilty to her charges. This displays a likelihood to use a suspended sentence as an opportunity to be rehabilitated.
32. Crown proposes that the Defendant’s Sentence be fully suspended for 2 years.
    
    2. Conclusion
33. Crown submits that the Defendant be sentenced to 18 months imprisonment.
34. The sentence of 18 months is to be fully suspended for 2 years on the following conditions:
    1. Not commit any offence punishable by imprisonment
    2. To be placed on probation
    100. Report to the probation office within 48 hours
    4. To perform and complete 100 hours of community service, at the direction of the probation officer and;
    5. To undertake and complete a life skills course at the direction of her probation officer.
35. Considering the mitigating and aggravating factors against the Defendant, Crown leaves it to the discretion of the court to determine the appropriate sentence.
    
    8. PRESENTENCE REPORT
       1. Personal History
36. The Defendant is the fourth out of six siblings of Siloni and Falakesi Vaka. She was raised in a stable environment with a strong religious upbringing.
37. The Defendant is married to Simione Havea from Toula Vava’u. Together the couple have 7 children from the age range of 4-15 years old. Two of the children are adopted out and the remainder of the children live with the Defendant at her parents’ home.
38. The Defendant stated that in 2018, her husband passed away while he was working as a seasonal worker in Australia. At the time, she was still carrying their youngest child. It was difficult for the Defendant to care for numerous children with no spouse, but she is happy with the support given to her by her siblings and parents.
39. The Defendant currently lives with her children at her parents’ house and belong to the Wesleyan Church.
40. The Defendant’s mother explained, the childrens’ financial needs are dependent on her and her husband. The Defendant’s father also takes care of all the fatherly obligations for the children.
41. According to the Defendant’s mother, she grew up well and studied in Tupou High School until form 4 and she dropped out because she was lazy. When the offending occurred, there were all shocked when a relative of the Defendant’s father informed them she was in prison in Vava’u.
42. The Defendant’s mother stated that the Defendant does not work, she stays home and takes care of the children and all the domestic duties. The Defendant’s mother is now 70 years old and isn’t able to care for the children.
43. The Defendant’s education began from Tokomololo Primary School and ended to Tupou High School in form 4.
44. The Defendant has no health-related issues and is unemployed. She is solely dependent on her parents.
    
    2. The Defendant’s version of the offence:
45. The Defendant was a tou’a at a Kalapu Kava Tonga in Leimatu’a. There she met a person named Alo Vulangi (“Alo”) that works at customs in Vava’u. He added her on Facebook, and they began to communicate through messenger as though they were boyfriend and girlfriend.
46. One day Alo messaged her that he would be coming to pick her up so that they could attend a customs celebration happening at the Customs Office in Neiafu. Instead of attending the party, they went to the beach and had a glass of wine.
47. The next day, Alo contacted her again on messenger saying that he would come and get her so she could go perform an examination of a product at a business in Koloa. Alo came to her, gave her some paperwork, gave her his work bag, and informed the Defendant they would start an inspection from Koloa. But instead, they went to drink wine and have sex.
48. The Defendant pled guilty to the charges stating that she remembers that day vividly. The Defendant went to the Chinese to pay for her rental car, while doing that, Alo rang the Defendant asking where she was. The Defendant replied saying she was at the Chinese rental; Alo then instructed her to wait for him while he drops off his wife then he’ll come to her so that they can continue to inspect shop products.
49. The Defendant stated that she waited for Alo for quite a while and call him back. He advised her to wear her ID and go into the Chinese shop, wander around and act like an inspector officer. According to the Defendant, she was doing everything on Alo’s instructions, such as walking around the business, taking notice of canned goods that had a curve on them, and informing the Chinese shopkeeper of them.
50. The Defendant was questioned by the shopkeeper, and she explained that she was a product inspector officer. The Defendant was then given one tin corn beef by the shopkeeper, and she returned back to her car.
51. The Defendant went back to the vehicle and kept waiting for Alo. A police officer approached her vehicle and inquired about her name. The Defendant called Alo about the police, and he advised her to admit what she had done at the shop and to tell the Police it was her own fault, without mentioning his name or that he had given her permission to inspect the merchandise.
52. The Defendant told Police that she followed all Alo’s suggestions but made no mention of Alo permitting her to do so.
53. The Defendant has expressed remorse and regret over her actions and stated that she didn’t accept Alo’s friend request on Facebook, she would not have done these unlawful actions.
54. The Defendant expressed this is her first illegal offence and is terrified. She looks after her children who are very young, and the offending will make them very shy.
    
    3. Summary
55. The Defendant is a 35-year-old female widow and mother of 7 small children.
56. The Defendant is a first-time offender, expressed genuine sadness and now understands the negative impact it will have on her and her family if she continues down this road of illegal behaviour.
    
    4. Assessment
57. Alo Vulangi authorised her to carry out illegal activities based on the Defendant’s explanation.
58. The Defendant takes full responsibility for the offence. She feels embarrassed and regret seeing her kids and relatives suffer the consequences of her offending.
59. Alo states he did not authorise the Defendant to do the offending.
60. The Defendant is remorseful and expresses regret for what she did. Giving her a chance to be rehabilitated and to stay with her children would be beneficial to the Defendant.
    
    5. Recommendation
61. A suspended sentence is recommended for the Defendant on the following conditions:
    1. Not to commit any offence punishable by imprisonment
    2. Community work as directed by the probation officer
    100. Live where directed by the probation officer
    4. Undergo a course on management and life skills.
       

1. DISCUSSION

62. This is the first case of this kind in Tonga. As such, the starting point would have to be determined from the circumstances and the maximum penalty.
63. The maximum penalty of $100,000 or 10 years imprisonment or both clearly demonstrates the view that our legislatures have on this type of offending.
64. The fact that the accused went to four different stores and pretended to be a customs officer strongly indicates that she what she had done was intentional and likely driven by greed in hoping to earn a benefit from the shop owners;
65. The accused is a first time offender, pleaded guilty at the first available opportunity and I accept that she is remorseful for what she had done.
66. I do not accept that she had been influenced by her ‘boyfriend’ to impersonate a customs officer. She was already wearing a customs uniform in the kava parties before she had met ‘Alo who was a genuine customs’ officer in Vava’u. She had told several people at the kava parties that she is a customs’ officer. I therefore believe she had left Tongatapu with a customs uniform with the intention of impersonating a customs officer.
67. If she had not been caught in time, she may have eventually been able to scam more out of the Chinese shop owners. As it is, she only received a can of corned beef.
68. I believe a starting point of 2 years imprisonment is appropriate. Although she did not receive much from her actions, the fact that she did impersonate a customs’ officer is serious as it would have had more serious effects on the shop owners;
69. For the mitigating factors I take off six months leaving a balance of 18 months imprisonment;
70. According to the reports the accused is a low risk for re-offending and has a high chance of rehabilitation.
71. I therefore suspend the whole 18 months for two years on conditions.
    
    10. RESULT

72. The Defendant, Mele Soloi Malo Havea is convicted and sentenced to 18 months imprisonment on each count concurrent to the head sentence;
73. The sentence is fully suspended on the following conditions:
    1. Not to commit any offence punishable by imprisonment;
    2. 40 hours of community work as directed by the probation officer. The accused is to report to the probation office within 48 hours of this sentence;
    100. Live where directed by the probation officer
    4. Undergo a course on management and life skills.
       

NUKU’ALOFA: 30 April 2024

‘E. M. L Langi
J U D G E