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R v Faka'osi [2025] TOSC 35; CR 208 of 2024 (22 April 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 208 of 2024

REX
-v-
SIONE FAKA’OSI

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mr. G Aleamotu’a for the Prosecution
Defendant in Person
Date: 22 April, 2025

The charges

1. On 27 January 2025, the defendant pleaded guilty to one count of obtaining by false pretences, contrary to section 164 of the Criminal Offences Act.

The offending

2. The defendant at the time of the offending worked for Semisi To’ofohe, the complainant. On or about 14 January 2024, the defendant promoted a 40ft container to Mr. To’ofohe for $8,000. He told Mr. To’ofohe the container belonged to one Samiuela Lomu, an acquaintance of his.
3. That same day, the defendant went home and called Mr. To’ofohe about the container, pretending he was Samiuela. Mr. To’ofohe offered to make a deposit of $3,000 and settle the balance by installments. It was agreed and Mr. To’ofohe was instructed to make the payment to the defendant.
4. The defendant received the $3,000 and at around 8pm that evening, the defendant, again pretending to be Samiuela called Mr. To’ofohe to confirm he had received the deposit and to advise that the container was being unloaded at his house at Fahefa. He promised delivery once unloading was complete.
5. On 18 June, 2024, Mr To’ofohe paid another $3,000 to the defendant.
6. On 21 June 2024, the defendant, again under the pretense he was Samiuela, requested a payment of $4000 to the defendant. Mr To’ofohe generously made that payment and the defendant promised him a second 40ft container for free. Later that day the defendant asked Mr To’ofohe for a further $1,800. Mr. To’ofohe only had $1,600 which he paid the defendant which the defendant was to re-imburse the following week.
7. On 22 June 2024, the defendant once again pretending to be Samiuela called Mr To’ofohe to inform that the 40-foot container had been purchased by his son but any money paid by him for the container would be returned on the last week of June.
8. No such payment was made and Mr To’ofohe’s attempts to reach “Samiuela” failed.
9. On 3 July 2024, Mr To’ofohe lodged a complaint with the Police against Samiuela Lomu.
10. The defendant was arrested on 3 September, 2024 and admitted he had impersonated Samiuela Lomu and obtained the said $11,600 from Mr. To’ofohe.

Crown’s submissions

11. The Crown submits the aggravating features of the offending were:
    1. the accused’s historical convictions for the same offence;
    2. the substantial amount of money involved;
    100. the money remains outstanding;
    4. the offending was premeditated;
    5. the offending involved deceit and dishonesty;
    6. the continuing impact on the victim.

13. The Crown submits the sole mitigating feature was his early guilty plea.

Victim Impact Report

14. Mr To’ofohe is a businessman. In addition to his financial loss, it is reported that he is affected by the defendant’s deceit and dishonesty. He seeks to be compensated for his loss.
15. The Crown refers to the following comparable sentences in the cases of:
    1. R v Malia Selupe CR 47 of 2020- The defendant pleaded guilty to five counts of obtaining money by false pretences. The breakdown of the counts and funds involved were:

Count 1 - $20,300;

Count 2- $16, 850,

Count 3 - $1,000;

Count 4 - $12,000 and

Count 5 - $9,800.

The defendant was sentenced to imprisonment for:

Count 1 – 24 months;

Count 2 – 20 months;

Counts 3 and 4 – 16 months; and

Count 5 – 12 months.

The overall final sentence after considerations including totality of sentence and mitigation was 3 years imprisonment with the final 12 months suspended.

2. Rex v ‘Anaseini Kolomalu- The defendant pleaded guilty to embezzlement and theft of a total of $21,051.20, with no funds repaid. Due to breach of trust, the systematic nature of offending and the sum involved, the head sentence was 18 months’ imprisonment, fully suspended for a period of 2 years on conditions.
   

100. Rex v ‘Ilona Maria Ika- The defendant pleaded guilty to one count of theft when making unauthorised withdrawals from a bank customer’s internet banking, $2,000 on nine separate occasions over the period of 3 months making a total of $18,000. A starting point of 2 years was set, reduced by 6 months for the early guilty plea and by a further 6 months because the Accused made full restitutions leaving a final sentence of 12 months imprisonment. The final 6 months being suspended for 12 months on conditions.

(The cases of Rex v Pousima Vaioleti CR 187 of 2023, Rex v Vaiola Pahulu CR 30 of 2023- and Rex v Siosio Malohi Vea CR 79 of 2023 are irrelevant.)

16. The Crown’s proposed sentencing formulation was a starting point of 2 ½ years imprisonment to be reduced in mitigation by 6 months, resulting in a final sentence of 2 years with the final 4 months suspended for 2 years on conditions.

Pre-sentencing report

17. Mr. Sione Faka’osi is 46 years of age and is a member of the Free Church of Tonga. He is separated from his wife.
18. The highest academic qualification held is a certificate in carpentry from Fokololo-oe-Hau Technical Institute which had provided him with skills to earn a living.
19. The report offered a grim opinion of the defendant. The absence of any payment despite the defendant reporting he had apologized and offered to repay the money back was received with skepticism. It was reported that the defendant lacked no real connection to the community or church and was placed as high risk on the scale of re-offending for a lack of good character and his recidivism. His show of remorse was described as fake.
20. Accordingly, the recommendation was for a custodial sentence.

Starting point

21. Section 164 of the Criminal Offences Act provides, that:

“Every person who by any false pretence obtains for himself or for any other person any money, valuable security or other thing whatever shall be liable to the same punishment as if he had committed theft.”

22. Section 145(b) of the Act provides a maximum penalty for theft over $10,000 of 7 years' imprisonment.
23. It is well established that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances.^[1] Factors of trust, systematic offending and the amount of money involved have been considered unusual circumstances and the principles of deterrence and denunciation often require the imposition of a custodial sentence.^[2]19. Further in Havili v Rex [2010] TOCA 3, AC No. 2 of 2010, the Court of Appeal considered offences of dishonesty and breach of trust appropriate for a sentence of imprisonment.
24. Here the defendant’s deceit, dishonesty, systematic lies impersonating someone else, breach of his employer’s trust, the quantum of monies obtained and failure to make restitution despite promises to do so, render imprisonment necessary.
25. Having regard to the maximum statutory penalty, the aggravating factors, relevant comparable sentences referred to, the unusual circumstances discussed above and the principles of deterrence and denunciation, I set a starting point of 18 months’ imprisonment, lifted by 6 months for his recidivism as recent as two convictions in 2020, totaling 2 years’ imprisonment.

Mitigation

26. For the defendant’s early guilty plea he is entitled to some deduction and I reduce the starting point by 4 months accordingly, resulting in a final sentence of 20 months’ imprisonment.

Suspension

27. As against the considerations on suspension discussed in Mo'unga [1998] Tonga LR 154 at 157, the defendant is not young and is a recidivist who has served a prison sentence for similar offending demonstrating little regard for opportunity of rehabilitation and the offending was clearly calculated and premeditated.
28. However, he did cooperate with the police and that ought to be encouraged. Accordingly, I suspend 4 months of his final sentence for a period of 2 years on conditions.

Result

29. Sione Fakaósi is convicted for obtaining money by false pretenses and is sentenced to a total of 20 months’ imprisonment.
30. The final 4 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:

(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

(d) complete a life skills or such other course as his probation officer may direct.

31. 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.
32. Subject to compliance with those conditions, and any remissions, the result is that the defendant is required to serve 16 months’ imprisonment.
    
    

P. Tupou KC
Nuku’alofa: 22 April, 2025 JUDGE

^[1] Moúnga v R [1998] Tonga LR 154, at 156
^[2] Kolomalu [2012] TOSC 25