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Rex v Misinale [1999] TOCA 12; CA 13 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
APPEAL FOR THE SUPREME COURT
NUKU'ALOFA REGISTRY

Cr. App. No 13/99
Case No. CR 779/97
BETWEEN

REX

Appellant
AND

HANISI MISINALE

Respondent

Coram:
Burchett J, Tompkins J, Beaumont J

Counsel
John Cauchi for Appellant
Tomasi Fakahua for Respondent

Date of Hearing: 13 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

The respondent was charged with embezzlement - that on various occasions between the months of April and October in 1995 he did take and convert to his own use the sum of $47,310.23 the property of others received in the course of his employment as accountant of Primary Produce Export Ltd. Following a trial, he was found guilty by a jury. On 15 April 1999 he was sentenced by Finnigan J to imprisonment for 3 years. He was ordered to serve 8 months of the sentence; the balance was suspended for 2 years from the date of his release. The Crown has applied for leave to appeal against the sentence on the ground that it is inadequate.

THE OFFENDING

The respondent, who was aged 37 at the time of the offending, had been employed by Primary Produce Export Ltd since he left school. In 1990 he had been promoted to the position of accountant, a position he held until his dismissal in 1996. Over the course of six months he systematically stole amounts totalling $47,310.23 by deducting sums from amounts due to growers of watermelon, squash and vanilla, or by not recording certain sales. By the time he was interviewed in relation to the offending, all this money had gone, he said on drinking and spending. None is likely to be recovered.

THE RESPONDENT

He was born on 15 September 1958. He married in 1979. He has 6 children ranging in age from 18 to 7 who were living at home with the respondent and his wife. He was the only breadwinner for the family. Since his dismissal he worked in the bush on short term contracts. His family receives some financial support: from relatives overseas.

He has no previous convictions. He was otherwise of good character.

REASONS FOR SENTENCE

The judge shortly reviewed the facts and other relevant aspects. He referred to the maximum sentence of 7 years. Having said that the respondent must serve 3 years, he went on to say: