R v Vaioleti [2024] TOSC 60; CR 187 of 2023 (5 September 2024)

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

CR 187 of 2023

BETWEEN:
REX
-Prosecution

AND:
POUSIMA VAIOLETI
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Counsels: Mr K. Tamo’ua for the Crown Prosecution
The Accused in Person
Date: 5 September 2024

1. THE CHARGES

1. On 23 July 2024, the Defendant pled guilty to the following charge:
   1. Count 1: Theft contrary to section 143(a) and 145(b) of the Criminal Offences Act 1976 (“the Act”). On or about 13 March at Vaini, the Defendant did dishonestly take, without any colour of right a vehicle and other items with the total value of $50,580 with the intent to permanently deprive the Simione Tauelangi.
      

2. SUMMARY OF FACTS

2. The Accused is Pousima Vaioleti, 29 years old residing in Vaini.
3. The Complainant is Simione Kotisi Tauelangi, a 73-year-old male from Vaini. The Complainant also has a hearing impairment and uses hearing aids.
4. On or about 13 March 2023, the Complainant returned home around 2:30am parking his vehicle a grey Mitsubishi double-cap vehicle L20930 inside his garage. He left both the garage door and the entrance gate to his residence open.
5. The Complainant removed his hearing aids, locked his room and went to sleep. When he woke up around 11am, he noticed that his living room was messy. The Complainant cleaned the mess and then came to the garage to get into his vehicle to go into town, that’s when he noticed his vehicle was missing.
6. The Complainant lodged a complaint with the Police of the following stolen items; Mitsubishi vehicle ($50,000), black metal torch ($300), black radio ($180), white Digicel phone ($130).
7. On or about 14 March 2024, Mauna a relative of the Complainant noticed the Mitsubishi vehicle heading towards the bush area in Ha’ateiho and it was the Accused driving. She attempted to follow the vehicle but lost sight of it in Tokomololo.
8. At some point, Tevita Lutui Vaka (“Tevita”) hitchhiked along the road in Lomaiviti on a grey double cap. It was the Accused who was driving. He informed Tevita it was his woman’s vehicle.
9. Tevita asked for the Accused’s vehicle to drop off his kids lunch. The vehicle ran out of petrol in front of Tonga College, so he parked the vehicle there and hitched a ride back to Tokomololo, returning the keys to the Defendant.
10. At 3:20pm, Officer Fakateli received a phone call that someone reported a vehicle L20930 parked infront of Tonga College, Ha’ateiho.
11. Police responded and when they arrived at Ha’ateiho, no one was in the vehicle. At the same time the Complainant was contacted. The Complainant arrived and identified that it was his vehicle and it was out of petrol.
12. After Police concluded their work, the vehicle was returned to the Complainant. On 20 March, 2023 the Accused was arrested.
13. On 23 March 2023, Police interviewed the Accused and he stated he would only speak in Court.
    
    100. AGGRAVATING & MITIGATING FACTORS
14. The Crown submits the following as aggravating factors in this case:
    1. Stealing is a serious offence as it makes people live in constant fear of being deprived of their property.
    2. The Accused stole the truck worth $50,000.
    100. The Accused has a long list of previous convictions, the majority of which are property offences.
    4. The Accused did not cooperate with the Police.
15. The Crown submits the following as mitigating factors in this case:
    1. The Accused pled guilty.
       

4. RELEVANT LEGISLATION

16. The penalty for theft under section 145(b) of the Act is a maximum imprisonment of 7 years.
    
    5. PREVIOUS CONVICTIONS
17. The Accused has a long history of previous convictions beginning from 2014 to 2023. The charges include housebreaking and theft on numerous occasions, assault and a range of other property offences. He has also been convicted on disorderly behaviour, disturbance and domestic violence.
    
    6. SENTENCING COMPARABLES
18. The Crown submit the following cases to assist the court in determining an appropriate sentence for the Accused.
    1. Rex v Fate & Ors (Supreme Court, CR 317-319 of 2020, 25 February 2021, LCJ Whitten KC)
19. The Accused pled guilty to theft of a vehicle valued at $11,000 and common assault. The aggravating factors were, the Accused assaulted the Complainant causing him to lose consciousness, she did so using a weapon and the vehicle was worth $11,000. The mitigating factors were the Accused was a first-time offender, she pleaded guilty at the earliest possible opportunity, remorse and she cooperated with authorities during the investigation.
20. A starting point of 2 years was set for the theft charge. It was reduced to 16 months to account for the mitigating factors.
21. In consideration of Mo’unga v R [1998] Tonga LR 154, the Accused was young with a good previous record, likelihood to take the
    
    2. Rex v Vaiola Pahulu (Supreme Court, CR 30 of 2023, 7 July 2023 Tupou J)
22. The Accused pled guilty to the theft of a vehicle valued at $43,000. The aggravating factors were, the Accused was a repeat offender, value of the vehicle and seriousness of the offence. The mitigating factors were the early guilty plea and cooperation with Police.
23. A starting point of 2 years was set, reduced by 8 months for mitigation resulting in 1 year and 10 months’ imprisonment. A further 9 months was added to the sentence
24. Balance of the sentence was suspended for 2 years on conditions.
    
    7. CROWN’S POSITION ON SENTENCING
25. The Crown submits based on the offending and the relevant authorities cited it is appropriate to impose a custodial sentence.
26. The Crown submit a starting point of 2 ½ years to 3 years imprisonment. For his early guilty plea, 8 months is deducted from the starting point resulting in 22 to 28 months imprisonment.
27. In relation to the principles in Mo’unga, the Crown submit the following;
28. The Accused is 29 years old, not young as he is already a mature person. He has a long list of previous convictions which consist mostly of property offences. The Accused did not cooperate with the Police during the Police investigation, and this is a serious offence.
29. The Crown submit, the sentence is partially suspended.
30. The Crown submit the final sentence for the Accused to be imposed in 28 months’ imprisonment with the final 4 months suspended for 2 years on the following conditions
    1. Not to commit any offence punishable by imprisonment during the period of the suspension.
    2. To be placed on probation.
    100. To undertake a life skills course under the direction of the Probation Office.
         

8. PRESENTENCE REPORT
   1. Personal History

31. The Accused was born 11 October 1994 and is the fourth child of nine siblings altogether. For his family, his mother has passed away, his father currently lives in Australia and all his siblings live separately on their own in Tonga and abroad.
32. The Accused belongs to the Free Church of Tonga in Vaini a while ago but has not attended church in a while due to his relationship. The Accused was in a de facto relationship with his girlfriend, and they have a 6-year-old child together. The child has been adopted by his girlfriend’s uncle.
33. He has separated from his girlfriend because of her mental disorder and was staying with his friends in Tokomololo.
34. In class 6, the Accused left school because he was lazy and did not want to continue studying. He has no health issues or ill related diseases and is currently unemployed.
    
    2. Factors Relating to the Offence
35. The Accused pleaded guilty and accepts the charge put against him. The Accused explained he did not know he would be charged for this offence, so when police interviewed him, he disclosed he would only speak in court.
    
    3. Assessment
36. The Accused is a frequent offender and he had admitted to the offence.
37. He says that he loves his girlfriend and that they have a child yet, he lives with his friends in Tokomololo because she has a mental disorder.
38. He has been able to escape accusations in the past of breaking the law.
39. The Accused states that he only drove the vehicle because the key was inside.
40. He regrets his actions and was aware that it was illegal, yet still committed the offence.
    
    4. Recommendation
41. It is recommended for a partly suspended sentence on these conditions;
    1. No further re-offending during the suspension term
    2. Attend Salvation Army for life skills course
    100. Any other conditions the Court deems appropriate to impose
         

1. MITIGATION PLEA

42. The Defendant appeared in person and was asked in Court if he had anything further to add before the sentence proceeds.
43. He explained that the vehicle was found with someone else then further sought to change his plea again after being rearraigned on 23 July 2024.
44. The Court does not accept this as it is evident the Defendant is going back and forth with his plea to avoid being sentenced for the charge in this matter.
    
    10. SENTENCING REMARKS
45. I will proceed to sentence on the basis that on or about 13 March 2023 you did take, without any colour of right a vehicle and other items with the total value of $50, 580 with the intent to permanently deprive the Complainant.
46. This is a very serious offence, and the vehicle involved was of high value. I am quite satisfied that you have conducted a life of crime. It further seems to me, that you are not very good at it. In a small island such as this, the chances of finding the vehicle are very high.
47. I accept in your favour however that the matter was not premeditated but opportunistic. You have a bad criminal record, originally pleaded not guilty and made no attempt to assist police even though the evidence was against you.
48. I see no reason to depart from the indicative sentence of 22 to 28 months from the Crown and fix the indicative sentence at 24 months.
49. I have considered whether part of the sentence should be suspended, and I’m assisted by the decision of the Court of Appeal of Tonga in Mo’unga where the court sets out guidelines to assist the bench. I deal with those considerations one at a time. A wholly or part suspension will depend on whether the offender is young, has a previous good record or a long period of no criminal activity. This clearly does not apply to you.
50. Second, where the offender is likely to take the opportunity for suspension to rehabilitate. I regret to say the chances for you to rehabilitate are not very high.
51. Third, where despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender. In my judgement, the only matter that applies to you is the lack of premeditation. As I have already observed, I am satisfied, what you did was a spur of the moment because the opportunity presented itself.
52. The fourth factor to consider, is whether there had been cooperation with the authorities. Again, there has been none or very little in this case.
53. Not without some hesitation, I have decided, it is possible in your case to suspend 4 months of the sentence. This is a merciful decision in the hope that despite all that you have done and all that has been said about you, you will realise that crime does not pay.
54. The final sentence for this offending is 24 months with the last 4 months suspended for 2 years.
55. If during that course of that period of suspension, you commit an offence punishable by imprisonment, you will serve that period of 4 months as well as any other sentence that will be imposed at that time.
    
    11. FINAL RESULT
56. For the charge of theft contrary to section 143(a) and 145(b) of the Criminal Offences Act 1976, I hereby sentence the Defendant to 24 months of imprisonment with the last 4 months suspended for two years on the condition that you are not to commit any offence punishable by imprisonment
57. I further order that the period of imprisonment is backdated to account for the Defendant’s time in remand for since 23 July 2024.
    

NUKU’ALOFA: 5 SEPTEMBER 2024

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE