R v Mahe [2025] TOSC 19; CR 226-227 of 2024 (18 March 2025)

ENTENIN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOF A REGISTRY
CR 226 - 227 of 2024

REX

-v-

KATIELI MAHE

[CR 226/2024]

REX

-v-

‘ETIMONI TOUMOLUPE

[CR 227/2024]

SENTENCING REMARKS

BEFORE: JUSTICE TUPOU KC
Appearances: Mr. ‘A Fisi’ahi for the Prosecution
Mrs. E Moala for the Defendants
Date: 18 March, 2025

The charges

1. On 20 January 2025, the First Defendant Katieli Mahe (“Mahe”), pleaded guilty to two counts of theft contrary to section 143 and 145(b) of the Criminal Offence Act.
2. The Second Defendant, ‘Etimoni Toumolupe (“Toumolupe”), pleaded guilty to two counts of receiving stolen property contrary to section 148(1) and (5) of the same Act.
   

The Offending

3. At all material times, Mahe and Toumolupe were both employed by the Tonga Power Ltd (“TPL”).
   
4. On 6 December, 2023, Kitione Kalu was in charge of the TPL stock. A week after Mr. Kalu took charge of the stock, he discovered 2 cable rolls missing.
   
5. CCTV footage of 7 December 2023, captured Mahe and 2 others loading an aluminium cable roll onto a TPL truck.
   
6. Mahe and one Tu’ipulotu then drove to pick up Toumolupe who accompanied them to Halaleva where they sold the roll to a Chinese businessman there. They received $1,200 for the roll and divided it amongst themselves.
   
7. Again, on 14 December, Katieli and Tu’ipulotu took another roll of copper cable, drove to pick Etimoni up and then proceeded to the same Chinese businessman at Halaleva to sell the roll for $3,000. Once again, they divided the proceeds amongst themselves.
   
8. In January, 2024, TPL officials interviewed the defendants. The defendants admitted to the offending and were arrested. Meanwhile, Tu’ipulotu had absconded to Australia.
   
9. Mahe was charged with theft of the 2 rolls of cable and Toumolupe was charged with receiving them.
   
10. The roll of aluminium cable was valued at $30,859.20 and the roll of copper cable was valued at $63,187.20, resulting in a total value of $94,046.20 worth of goods.
    

Crown’s submissions

11. The defendants have no previous convictions.

12. The Crown noted the aggravating features to be:

a) the total value of stolen items was substantial being, $94,046.20; and

b) the breach of trust in employees;
13. The mitigating features were:

a) their early guilty plea;

b) their cooperation with the police;

c) their lack of previous convictions; and

d) their expression of remorse.

14. The Crown referred to the following sentencing comparables;
    1. Rex v Tevita Fifita (CR 74/2018) – The defendant broke into a store and stole $21,664.12 in cash. He pleaded guilty to serious housebreaking and theft. For the theft he was sentenced to 2 years’ imprisonment to be served concurrent to his final sentence of 2 ½ years’ imprisonment for the serious housebreaking. The final 1 2months of the head sentence was suspended.
    2. Rex v Penisiliti Malafu (unreported, CR133/2016, 29 March 2018, Cato J) – The defendant broke into a private home and stole $15,000 worth of tongan goods. He was convicted after trail for serious housebreaking and theft. The defendant was sentenced to 2 years’ imprisonment for the theft to be served concurrent to the head sentence. The final 6 months of the head sentence was suspended on conditions.
    100. Rex v Maikolo ‘Ealelei (CR 162/2018) – The defendant pleaded guilty to serious housebreaking of a private home and theft of tongan goods valued at $34,269. He was sentenced to 2 ½ years’ imprisonment for the theft.
    4. Rex v Kelikupa Maile (unreported, CR133/2019) – The defendant was convicted after his trial for serious housebreaking and theft of tongan goods valued at $14,000. Although part of the goods were recovered, the defendant was sentenced to 2 ½ years’ imprisonment to be served concurrent to the head sentence.
    5. R v Luseane Ngaluafe Fatafehi (CR 136/24) – The defendant pleaded guilty to theft of goods valued at $56,779 from Heilala Vanilla Company. A starting point of 4 years’ imprisonment was set, reduced by 19 months, resulting in a final sentence of 2 years a3456nd 5 months imprisonment. The last 17 months of the sentence was suspended on conditions.

CR 226 of 2024 - Katieli Mahe

15. The Crown considered the second count as the more serious and therefore the head sentence with a proposed starting point of 4 ½ years’ imprisonment. For count 1 a starting point of 3 years’ imprisonment was proposed.
16. In view of the mitigating factors and the recovery of part of the stolen items, a reduction of 18 months in mitigation for count 2 and 12 months for count 1 was suggested resulting in a final sentence of 3 years’ imprisonment for count 2 and 2 years’ imprisonment for count 1 to be served concurrent to count 2.
17. The Crown was of the view that in light of the mitigating factors the defendant was entitled to a partially suspended sentence and suggested the last 12 months of the final sentence be suspended for 2 years on conditions.

Pre-Sentence Report

18. Mr. Katieli Mahe is 39 years of age, is married and has 4 children with ages ranging from 17 to 6 years of age. He is a member of the Christ Embassy Church.
19. He completed Form 1 at Tupou High School and had to drop out due to heart problems. He later obtained qualification for electric works from Tonga Institute of Science Technology and started working for Shoreline Power and then to Tonga Power Ltd.
20. He has been an employee of Tonga Power Limited for 20 years since he was transferred to work there in 2005. He was an extremely reliable person at work due to his experience and type of work. As a result of these charges, he has lost his job.
21. He was a loyal worker according to his wife and despite apologising and an offer to repay the company, the company has refused to engage.
22. He admits the offending but went on to divulge that others have committed similar acts who were allowed to settle the matter by repaying the company’s loss.
23. He was observed as truly remorseful. A fully suspended sentence on conditions was recommended by the Probation Officer.
    

CR 227 of 2024 – Etimoni Toumolupe

24. Here, the Crown suggested count 4 as the more serious and therefore the headcount and suggested a starting point of 4 ½ years imprisonment and 3 years imprisonment for count 3.
25. As in CR 226 of 2024, in view of the mitigating factors and the recovery of part of the stolen items a reduction of 18 months in mitigation for count 4 and 12 months for count 3 was suggested resulting in a final sentence of 3 years’ imprisonment for count 4 and 2 years’ imprisonment for count 3 to be served concurrent to count 4.
26. The Crown was of the view that in light of the mitigating factors the defendant was entitled to a partially suspended sentence and suggested the last 12 months of the final sentence be suspended for 2 years on conditions.

Pre-Sentence Report

27. Mr ‘Etimoni Toumolupe is 39 years of age. He is married with 3 children.
28. He attended Vava’u High School and Fokololo ‘oe Hau Technical Institute and completed in 2005.
29. In 2006 he became an apprentice at the Shoreline Company Ltd and became a permanent staff member in 2008. In 2010 he was employed by Tonga Power Ltd and was a supervisor of the lines men at the time of dismissal for this offending.
30. He is in good health and is a member of the Christ Embassy Church.
31. He is reported to regret his actions and is deeply remorseful. The probation officer thought that he had the capacity to change and grow if given an opportunity.
    

Defence Submissions

32. I have considered the submissions filed on behalf of the Defendants. Mrs. Moala submitted that the offending is at the lower scale of these types of offending based on the assertion that other’s within the company had committed similar offending but were able to settle it with the company. Further, she submitted that the defendant’s actions were not “malicious” but arose out of “a desire to help their families..”
33. It was argued that they pose no risk to the community as they are both first time offenders and are no longer working for Tonga Power Ltd. It was suggested that a partially suspended sentence will “seriously affect both families, especially both having young children as ages 6 (Katieli).”
34. On balance, Mrs. Moala’s submissions largely agreed with the Crown’s position on sentencing with the exception of a recommendation for a fully suspended sentence.
    

Starting Point

35. The maximum sentence for theft of goods valued more than $10,000 is 7 years imprisonment. The penalty for receiving stolen goods is the same as that of theft.
36. It is an established principle that for purely property offences, imprisonment is not appropriate unless there are unusual circumstances that render imprisonment necessary.
37. In the case of R v Kolomalu [2012] TOSC 25, it was held that unusual circumstances that rendered imprisonment necessary included:

a) factors of trust;

b) the amount of money involved; and

c) systematic offending.

38. In this instant both Mahe and Toumolupe had served the company for over 20 years, were no doubt trusted employees having access to the company stock. The theft involved goods of substantial value at $94,046.20 and the act was to some extend systematic. It involved arrangements with the Chinese businessman and for Toumolupe to be picked up on the way on each occasion. This was not done once to support Mrs. Moala’s submission that it was out of character. They repeated the same act, the same way. These present, in my view special circumstances that render imprisonment necessary.
39. Having regard to the seriousness of the offence, the value of the stolen items, the loss to the company (albeit with part of the goods recovered), the comparable sentences and sentencing objectives of punishment, deterrence, denunciation and protection of the community, the consensus between the parties on the Crown’s proposed sentence I set the following starting points:

a) Count 2 - 4 ½ years imprisonment (head sentence);

b) Count 1 – 3 years imprisonment to be served concurrently to count 2

c) Count 4 – 4 ½ years imprisonment (head sentence);

d) Count 3 – 3 years imprisonment to be served concurrently to count 4.

Mitigation

40. There is consensus that 18 months ought to be deducted from Counts 2 and 4 and 12 months for counts 1 and 3, for the Defendant’s early guilty plea, lack of previous convictions, cooperation with the authorities and recovery some of the stolen items. As a result of those deductions the final sentences are:

a) Count 2 – 3 years imprisonment (head sentence);

b) Count 1 – 2 years imprisonment;

c) Count 4 – 3 years imprisonment (head sentence);

d) Count 3 – 2 years imprisonment.

Suspension

41. I have considered the submissions from the parties as well as letters from the Resident Pastor of the Christ Embassy Tonga Church in the defendant’s favour.
42. As against the well-known principles in Mo'unga v R [1998]TLR 154, the Defendants are both in their late 30s and have families. Mrs. Moala submitted their actions here were to support their families, I do not accept that as a reasonable or lawful excuse to steal.
43. It is said that they are remorseful but the attempt to blame the company for settling with others and not with them gives me some doubt as to the degree of remorse. I have given consideration to their personal circumstances and those dependent on them. But this court has time and again held that the breadwinner plea does not, on its own justify a fully suspended sentence.
44. I do not doubt that the defendant’s will take an opportunity offered by a suspended sentence to rehabilitate themselves. But I bear in mind the caution in the exercise of discretion to suspend that it ought not to risk sending the erroneous message to the community that the courts are tacitly condoning or acquiescing to criminal behavior.
45. Here, both Defendants have lived a crime free life for 39 years, were able to hold down a job for over 20 years, and both have young families. These features provide for optimist for rehabilitation.
46. 46. Also bearing in mind the comparable sentence R v Luseane Ngaluafe Fatafehi, relied on by the Crown, I suspend the final 18 months of both defendant’s head sentences on conditions.
    

Result

47. The First Defendant, Katieli Mahe is convicted on:

a) Count 2 for theft and sentenced to 3 years imprisonment;

b) Count 1 for theft and sentenced to 2 years imprisonment.

48. The sentence for count 1 is to be served concurrently for count 2.
49. The final 18 months of the sentence are to be suspended for a period of 2 years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, he is to:

a) not commit any offence punishable by imprisonment;

b) be placed on probation;

c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer.

50. The Second Defendant ‘Etimoni Toumolupe is convicted on:

a) count 4 for receiving stolen goods and sentenced to 3 years imprisonment;

b) count 3 for receiving stolen goods and sentenced to 2 years imprisonment.

51. The sentence for count 3 is to be served concurrently for count 4.
52. The final 18 months of the sentence are to be suspended for a period of 2 years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, he is to:

a) not commit any offence punishable by imprisonment;

b) be placed on probation;

c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer.

53. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendants will be required to serve the balance of their prison terms imposed.
54. Subject to any remissions available under the Prisons Act, the Defendants will be required to serve 1 year and 6 months imprisonment.

P. Tupou KC

Nuku’alofa: 18 March, 2025 J U D G E