R v Vea [2024] TOSC 6; CR 175 of 2023 (8 March 2024)

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

CR 175 of 2023

REX
-v-
SIOSIUA VEA

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr. S. Patelesio for the Prosecution
The Defendant for himself
Date: 8 March, 2024

The proceedings

1. On 19 January, 2024, the Defendant pleaded guilty to one count of serious fraudulent conversion, when he converted a Nissan X-Trailer (“the vehicle”) valued at $15,000 that had been delivered to him after it was paid for by the Complainants for his own benefit, when he resold the said vehicle to Tevita Liuaki Likiliki, contrary to section 162(1) (c), (2) and (3) of the Criminal Offences Act.

The offence

2. On or about 9 February, 2023, whilst in Australia on the seasonal workers scheme, the Complainants, Nikola Masalu (“Nikola”) and his wife saw vehicle listings for sale on VEA TRADE’s Facebook page. The page was administered by the Defendant, Siosiua Vea (“Siua”), of Vaini.
3. They expressed their interest in purchasing the vehicle being advertised for TOP$15,000. It was agreed for Nikola to deposit TOP$10,000 and then pay the balance on his return to Tonga. Accordingly, Nikola paid the Defendant the $10,000
4. Nikola returned to Tonga on 4 March, 2023. He paid the remaining $5,000 to
   the Defendant on 7 March, 2023. It was agreed that the vehicle will be ready for Nikola to pick up within one week. That did not happen.
5. It was not until 4 April, 2023, that Nikola learnt the Defendant had resold the same vehicle to a Tevita Liuaki Likiliki on 24 March, 2023. Nikola demanded a refund of the money he paid. Payment was not forthcoming and the Complainants lodged a complaint with the police. They received $1,900 from the Defendant after the matter had been referred to the police. No further payments were made and the outstanding amount is $13,100.00.
6. The Defendant denied the offending, elected not to cooperate with the Police and exercised his right to remain silent.

Crown’s submissions

7. The Crown submits the aggravating features of the offending were:
   1. Betrayal of trust undermining the integrity of car dealership in Tonga;
   2. Premeditation;
   100. Misusing a legitimate business (car dealership) to facilitate dishonest taking of money;
   4. Financial loss to the Complainant; and
   5. Charge for a similar offending at the Magistrate Court for obtaining money by false pretences.
8. The Crown submits the following as mitigating features;
   1. The apology offered to the Complainants; and
   2. Early guilty plea.
9. The Crown referred to a total of six comparable sentences, only one of which is relevant.
   1. Rex v Fakanonoa Kailea Muli Valu Fonua (CR83 of 2023) –the Defendant was entrusted by the Complainants to supervise sale of fuel at the Matavai Mo’ui Gas Station. The Defendant converted fuel valued at $27,493.87 for his own and others benefit without making the necessary payments to the Matavai Mo’ui Gas Station. Justice Cooper imposed a starting point of 3 years imprisonment lifting it by 6 months in light of the aggravating features. He received a 30% discount in mitigation with no suspension, resulting in a final sentence of 29 months imprisonment.
10. The balance of the cases referred to involve the offence of embezzlement which carry a discrete maximum statutory penalty of 7 years imprisonment and therefore in my view, unhelpful.
10. The Crown recommended a starting point of 3 years imprisonment to reflect the seriousness of the offending, the amount converted and the breach of trust.
11. A discount of 8 months was suggested for mitigation, resulting in a final sentence of 28 months imprisonment.
12. In applying the principles in Mo’unga v R [1998] Tonga LR 154, the Crown concluded that none favoured the Defendant. Nevertheless, it was submitted that the final 12 months of the Defendant’s sentence should be suspended because of his guilty plea, remorse and likelihood of using the opportunity to rehabilitate himself.

Pre-sentencing report

13. The Defendant is 37 years of age. He is the eldest of eight siblings. His upbringing was happy and in a decent happy family. His father had passed on and is survived by his mother. They have all remained in Vaini.
14. He attended Liahona High School and completed sixth form in 2005. From 2007 to 2009, he served as a missionary for the Church of Jesus Christ and the Latter-Day Saints in the Philippines. In 2011, he enrolled at the University of the South Pacific for a degree program in Business Management, which he did not complete.
15. He married Ketisi Vea (“Ketisi”) of Vaini and they have three children. Their eldest is nine years old, the second is eight and the third is seven. His wife is a primary teacher at the Government Middle School of Kolomotu’a.
16. In 2021, the Defendant registered a car dealership business licensed under the name, Vea Trade. At the time, he was working as a daily paid labourer at the Ministry of Labour and Commerce. He has since been dismissed as a result of this offending.
17. The Defendant told the probation officer that his business started off well but soon went bankrupt due to excessive ordering of additional vehicles. He was unable to re-imburse his customers.
18. Ketisi said that when the Defendant started the business, she discussed with him how difficult it will be to manage a car dealership, but the Defendant did not listen. Since the offending, it has been difficult for their family to get by, pending his sentencing as they are unable to compensate the customers. Her salary is sufficient only to feed their children. She encouraged the Defendant to start a plantation in order to repay the money they owe to the customers.
19. Two references were provided in support of the Defendant. First, was Bishop ‘Eneasi Fa’uhiva of the Vaini LDS Ward who reported that the Defendant is his church assistant and is a dedicated and active member of the church. The second was ‘Inoke Teisi, the Vaini town officer. He also described the Defendant as a good helpful person to the community. He is the treasurer of the Vaini rugby committee and the people of Vaini were taken aback after learning of the present offending.
20. The Defendant confirmed that he agreed with Nikola to purchase the vehicle for $15,000. When the vehicle arrived at the wharf, one of his other customers asked if he could lend him the vehicle while awaiting his order. He gave the vehicle to that customer.
21. When Nikola found out, he required a refund. The Defendant was unable to make the refund as his business was bankrupt. He volunteered to the reporter that he has been charged with a similar matter at the Magistrates Court.
22. The probation officer opined that the Defendant is remorseful and although he stated he would accept the Court’s decision, he begs for mercy and leniency. The probation officer is of the opinion that imprisonment is inevitable.

Starting Point

23. Section 162 (1)(c) provides that, “every person who having received for or on account of any other person anything capable of being stolen fraudulently converts to his own use or benefit or to the use or benefit of any other person such thing or any part thereof or any proceeds thereof, shall be guilty of an offence under this section.”
24. The maximum statutory penalty for serious fraudulent conversion is 10 years imprisonment.
25. I have referred myself to a similar case, R v Halafihi [2018] TOSC 77 where after trial the Defendant was convicted of serious fraudulent conversion of $71,500.42. The offending was committed during the course of employment as Chief Cashier for the Ministry of Finance in Vava’u. Various false entries made in books of accounts were revealed by an audit. A starting point of 4 years was set with a discount of 9 months in mitigation for her previous good record and community work, resulting in a final sentence of 3 years and 3 months imprisonment. The final 6 months of her sentence was suspended.
26. The Court of Appeal in Mo’unga [1998] Tonga LR 154 at 156 expressed the view that imprisonment for a purely property offence was not appropriate unless unusual circumstances exist that render it necessary.
27. In 2010, in the case of Filila Havilii v Rex^[1], the Court of Appeal considered an offence of dishonesty and breach of trust would ordinarily receive a custodial sentence.
28. In 2012, in the case of R v Kolomalu^[2], factors of trust, the amount of money involved and a systematic offending were considered unusual circumstances that rendered imprisonment necessary.
29. Here, the taking advantage of the Complainants’ full payment for the vehicle and subsequently handing over their vehicle to a third party, breach of the promise he made to Nikola, the quantum of the money involved and the failure to make full restitution, in my view, constitute circumstances rendering imprisonment necessary.
30. The Legislature has set the maximum penalty for the present charge at 10 years imprisonment signaling the seriousness in which it considers this type of offending. I bear this in mind when considering an appropriate sentence here. Having regard to the maximum statutory penalty, the comparable sentences above, the sentencing principles of punishment, denunciation, the protection of the public from this increasing type of criminality and to deter the Defendant and any others who intend to engage in this type of offending, I set a starting point of 3 years imprisonment.

Mitigation

31. Here, despite the Defendant’s initial denial of the offending, he pleaded guilty at the first opportunity and has a previous clean record. I reduce the starting point by 10 months (30%), resulting in a final sentence of 2 years and 2 months imprisonment.

Suspension

32. As against the considerations on suspension discussed in Mo’unga^[3], the Defendant is not young and I have not found any diminution of culpability. I accept that he is remorseful and consider the minimal restitution made due to his alleged bankruptcy as well as his good character as described by his Bishop and town officer and a long criminal free life until now. He has been penalized prior to this sentence in the dismissal from his job. For those reasons, I accept the Crown’s recommendation and suspend 12 months of his sentence on conditions as set out below.

Result

33. The Defendant is convicted of serious fraudulent conversion and is sentenced to 2 years and 2 months imprisonment.
34. The final 12 months of the sentence is to be suspended for a period of two years from the date of his release on the following conditions, namely that, during the period of suspension, the Defendant is to:
    1. Not commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the probation office within 48 hours of his release from prison; and
    4. Complete a life skill or such other course(s) as his probation officer may direct.
35. Failure to comply with any of those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his sentence.
36. Subject to compliance with the above conditions, and any remissions under the Prisons Act, the result is that the Defendant will be required to serve 14 months imprisonment.
    

NUKU’ALOFA	P. TUPOU KC
8 March, 2024	ACTING LORD CHIEF JUSTICE

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^[1] [2010] TOCA 3
^[2] [2012] TOSC 25
^[3] [1998] TLR 154 at 157