R v Vaha'i [2025] TOSC 26; CR-VAV 6 of 2024 (18 March 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NEIAFU REGISTRY

CR-VAV 6 of 2024

BETWEEN:

REX

-Prosecution

AND:

SIMAIMA VAHA’I

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances : Mrs S Eliesa for the Crown Prosecution

Ms L Fonua for the Accused

Date: 18 March 2025

1. HISTORY OF PROCEEDINGS

1. On 7 March 2025, the Accused pleaded not guilty to the following charge;
   1. Count 1: Theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act, whereby it is alleged that on or about October 2023 to April 2024 you did dishonestly take without any colour of right property at the total value of $19,654.85 from Digicel Tonga Limited, with the intention to permanently deprive them of that said property.
2. On 17 March 2025, trial for this matter commenced and I heard evidence from a total of 5 prosecution witnesses, all employees of Digicel Tonga Limited. On the evidence it was clear that the stock room to which these goods were stolen from was left unlocked at most times with access available to all other workers in the company.
3. The Court advised Crown to speak with Defense and consider filing an amended Indictment and Court was adjourned till today.
4. I received an amended indictment today from the prosecution with Count 1 and an alternative in Count 2 charged against the Defendant.
5. The Defendant was rearraigned on the amended indictment to which she pleaded not guilty to Count 1 and guilty to the following charge;
   1. Count 2: Theft contrary to section 143(a) and 145(a) of the Criminal Offences Act where on or about October 2023 to April 2024 at Neiafu, you did dishonestly take without any colour of right, one Samasung Galaxy A34, valued at $715.84 from Digicel Tonga Limited, with the intention of permanently depriving them of said property.
6. The Crown in acceptance of her plea to Count 2, discharged Count 1 of the amended indictment.
7. After questioning the Defendant on her background and personal history, I now proceed to sentencing.
   2. DSCUSSION
8. You have pleaded guilty to theft of a mobile phone, the loser was your employer, that is always a serious matter because it is a breach of trust.
9. You are a married woman with 4 young children, married to a teacher who has a good job, so it is a great disappointment that you should have behaved in this way, however, you did own up as soon as you were questioned, this was before your arrest and before you were questioned by the Police.
10. I hope that was because you realised that what you did, was out of character. Why you behaved as you did, I cannot say, but I hope that this experience has been a lesson for you.
11. To assist your future rehabilitation, I have decided to put you on probation, this will be for a period of 12 months, during that time, you must not commit any offence punishable by imprisonment and you must report to probation office in Tonga by Friday this week, this can be done by phone.

FINAL RESULT

12. For Count 2 of theft, I impose a sentence of 12 months’ probation on the following conditions;
    1. You must not commit any further offence punishable by imprisonment.
    2. You must report to the Probation Office in Tongatapu by 21 March 2025. This can be done by telephone, the Court will provide the Probation Office’s contact number.
       

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NEIAFU
18 March 2025