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R v To'aho [2025] TOSC 36; CR 02 of 2025 (2 May 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 02 of 2025

REX
-v-
Kisione Tu’ipulotu TO’AHO

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mr A. Fisi’iahi for the Prosecution
Defendant in Person
Date: 2 May, 2025

The proceedings

1. On 11 March, 2025, the Defendant pleaded guilty to two counts of obtaining money by false pretences, contrary to s.164 of the Criminal Offences Act.

The offending

2. The Defendant is the owner of a company known as Getpert Computers which amongst other things, imports and sells vehicles from Japan. The offending involves two separate complaints.
3. The first complainant is Ms. Loseli Liu on behalf of Sino Union Economic Trading Ltd of Ma’ufanga. On 14 June, 2024, an amount of $19,800 was paid to the defendant by Ms. Liu on behalf of the company for a vehicle. Staffs of the company were informed that the vehicle will be delivered the following week. That did not happen.
4. Despite numerous promises the vehicle was not delivered. The company demanded its money back and lodged a complaint with the police.
5. On 4 March, 2024, the second complainant, Mele Veatupu (“Mele”) approached the defendant at his company office to purchase a vehicle to take to Vava’u. They were assisted by the defendant and they selected a 2012 White Nissan Note. The vehicle was valued at $9,800.
6. Mele and her husband asked to see the vehicle. The defendant concocted a story that the vehicle was still at the wharf and documentation for the release of the vehicle will be processed in Japan after payment is received.
7. The next day Mele contacted the defendant. She was told the money had not reached Japan due to the different time zones. Mele became suspicious. She and her husband attended the defendant’s office and requested their money back.
8. Instead, the defendant took them to his broker at the wharf who showed them telegraphic transfer receipts. Mele took a photo of the receipts carrying the name ICAR JAPAN. Mele’s husband, Paula contacted ICAR JAPAN about the telegraphic transfers. The company confirmed the receipts were fake.
9. Mele also enquired at the Tonga Development Bank from which the transfers were allegedly made. The bank also confirmed they were fake. A complaint was lodged with the police and the defendant was charged accordingly.

Crown’s submissions

10. The Crown submitted that; (a) the involvement of 2 separate victims; (b) the substantial ($29,600) amount of money; (c) the defendant’s position of trust; (d) the premeditated and calculated nature of the offending; (e) the deceit and dishonesty; (f) lack of cooperation with the police; (g) previous convictions; and (h) the breach of the conditions of his suspended sentence were the aggravating factors.
11. The mitigating features were: (a) his early guilty plea; and (b) partial restitution in respect of count 1.
12. The court was referred to the following relevant comparable sentences:

(a) R v ‘Ekuasi [2022] TOSC 94: CR 3 & 103 of 2022 (11 November 2022)- The Accused pleaded guilty to 3 counts of obtaining money by false pretences by false advertisement of vehicles to different victims. The relevant count is count 3 involving an amount of $8,500. A starting point of 22 months imprisonment was set and then reduced by 20% for the defendant’s guilty plea and good record.

(b) R v Filimone To’aho TOSC 2; CR 17 of 2022, (1 March 2024)- The Accused was found guilty of 8 counts of obtaining money by false pretences. Relevant to this sentencing are counts 1 which involved an amount of $18,700 and counts 4 and 7 both involving $17,500. For Count 1 a starting point of 22 months was fixed and for counts 4 and 7, a starting point of 21 months. The defendant deceived 8 victims over a period of 10 months. The total monies obtained was $243,486. A small part of the money was paid and it was the defendant’s first custodial sentence. The final sentence was 7 years imprisonment with the final 12 months suspended on conditions.

(c) Kaufusi v R [2014] TOCA 17; AC 14 &15 of 2014 (31 October 2014) – the appellant was convicted for the theft of $41,301 from his employer. He pleaded guilty (albeit late) and made full restitution of the stolen money. A starting point of 3 years and 9 months was set reduced by 13 months in mitigation and the final 9 months was suspended. The Court of Appeal upheld the sentence imposed.
Victim Impact Report

13. Both complainants suffered as a result of the offending. After full reparation was made to the second complainant forgave the defendant and withdrew her complaint. An undated letter from the second complainant’s husband addressed to the police requesting for the charges to be dropped was lodged by the defendant together with his sentencing submissions.
14. The first complainant appeared to have suffered the most. The offending disrupted its bid as one of the successful contractors to construct houses to accommodate delegates for the Pacific Island Forum in August last year. The subject vehicle was to aid in transporting the labourers to construction sites. When interviewed by the Crown, it was revealed that in addition to the financial loss, the company resorted to other means of transportation that were not always available when needed impacting the work and causing stress to Management. However, a letter of 10 January, 2025 was produced by the defendant with his submission reporting that $10,000 had been paid back by the defendant and arrangements were in place for the balance to be paid by June, 2025.
15. The Crown’s proposed sentencing formulation is a custodial sentence of 24 to 30 months for count 1 and 14 to 20 months for count 2.
16. In addition the Crown submitted the suspended sentence in CR 195 of 2021 of 16 months imprisonment be activated and 8 months from the instant sentence be added, resulting in a total of 24 months be served cumulatively with the final 6 months suspended on conditions.
    

Pre-sentencing report

17. The defendant is 41 years old and comes from a known family in Tokomololo. They are, including the defendant, known to be active in community and church activities. He is married to Ane To’aho with whom he shares 5 children between the ages of 9 and 1. He is healthy and is an active member of the community.
18. He is the owner of Getpert Computer offering services relating to computers, unlocking phones as well as importing vehicles from Japan.
19. He is not a first time offender but the town officer of Tokomololo speaks well of him and says he is a trustworthy and hardworking member of the community. He is reported to be remorseful and was willing to make full reparations but “felt hesitant” he might receive a sentence of imprisonment if he cleared it.
20. The report suggested orders for restitution or a term of imprisonment.

Defendant’s submissions

21. The defendant filed submissions on 29 April, 2025 seeking a discharge without conviction under s. 204 of the Criminal Offences Act or alternatively a fully suspended sentence.
22. Attached to his submissions were letters from his wife, his Church Minister, the Manager of the second complainant and the husband of the first complainant.
23. In summary and further to the facts provided in the presentencing report, the defendant’s submissions and his wife’s letter describe at the time of the offending:
    • (a) there was financial pressure on the defendant due to the collapse of his brother’s business, leaving behind debts and a mortgage over the parents’ home;
    • (b) he was in fear for his family and needed to protect them from homelessness;
    • (c) the defendant/wife was paying a loan of $1,600 a month;
    • (d) while taking care of the daily needs of their 5 children and his parents;
    • (e) his children have a “profound” bond with the defendant especially their 3^rd child who cannot sleep without his father;
    • (f) the defendant is the main carer for the children, taking them to and from school and caring for them after school.
    • (g) his wife works as a legal officer at the Ministry of Infrastructure;
    • (h) he is the assistant president of the Tapu Solova Scholarship Club in the village raising funds by financial contributions during a weekly kava meeting to sponsor 38 students at various high schools.
    • (i) he is remorseful and say a custodial sentence will crush him and his family.
24. The letter from his Minister state that he was the leader of the youth in recent years and he has been appointed to the position of assistant steward and a preacher of the gospel.
25. The Manger of the second complainant confirmed that $10,000 has been paid and the outstanding will be paid by June.

Starting Point

26. The maximum statutory penalty for obtaining money under false pretences is the same as for theft. The penalty for theft of a thing stolen valued under $10,000 is 3 years’ imprisonment and for a stolen thing valued in excess of $10,000 is 7 years’ imprisonment.
27. It is trite that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances. Authorities^[1] have held factors of trust, systematic offending, substantial amount of money involved, dishonesty^[2] and breach of trust to amount to unusual circumstances.
28. Here, the offending was calculated and well executed. The falsification of receipts for false telegraphic transfers delivering and involving a broker at the wharf and concocting stories to mislead both complainants to give up their money under pretence they would receive a vehicle in return, in my view, present unusual circumstances that make the offending so serious, that only a custodial sentence can be justified. An added aggravating feature is the breach of the condition imposed on his suspended sentence in CR 195 of 2021 not to commit any offence punishable by imprisonment.
29. Having regard to the maximum statutory penalty, the serious nature of the offending demonstrated by the aggravating factors set out by the Crown, the relevant comparable sentences, the unusual circumstances discussed above and the principles of deterrence and denunciation, I set the starting point for count 1 as the head count at 24 months’ imprisonment and 14 months imprisonment for count 2.

Mitigation

30. In mitigation I have considered the defendant’s early guilty plea, reparations and the complainant’s clemency. Contrary to the defendant’s misconception that full restitution may avoid a custodial sentence, the Court of Appeal in Kaufusi v R supra, said:

“ It is important that there is a meaningful allowance when recompense of losses is made. It demonstrates a desire to atone and of course lessens the impact of the crime on the victim. If adequate allowance is not routinely made, there is also the concern that the incentive to make reparation will be reduced.”

31. Accordingly, for his early guilty plea, reparations and the complainants’ clemency, I reduce the starting point for count 1 by 8 months resulting in a final sentence of 16 months imprisonment and the starting point in count 2 by 5 months (bearing in mind the full reparation made), resulting in a final sentence of 9 months imprisonment. Count 2 shall be served concurrent to count 1.

Discharge without conviction

32. In considering an application for a discharge without conviction under s. 204 of the Criminal Offences Act, the provision requires the court to look at the nature of the of the offending, the character of the offender, that it is inexpedient to inflict punishment and a probation order was not an appropriate penalty.
33. This is a serious offence and is reflected both in the statutory penalty under the Act and the circumstances described at paragraph 28 above.
34. As against the favourable reports from the Church Minister and Mrs. Toáho, of the defendant’s character, the defendant is a recidivist who has failed to comply with the condition of a fully suspended sentence.
35. In addition, inconsistencies in information submitted by the defendant and his wife do not assist and casts some doubt on its accuracy. For example, they both insist the offending was due to overwhelming financial burden left by the collapse of his brothers business, unpaid debts and mortgage threatening potential homelessness. However, Mrs Toáho letter of 10 April, 2025, confirmed the defendant’s brother’s debt was cleared in 2023^[3]. This offending occurred in March and June, 2024, and after Mrs Toáho gained employment. It also appears that the existing loan is their own which they both claim to be the spouse covering repayments.
36. I have also had the opportunity to read the sentencing remarks in CR 195 of 2021 in August, 2022, which the Crown provided. I note that the 3^rd child’s medical condition (who would have been around 2 years old then) was not mentioned nor his inability to sleep without his father. No evidence has been produce of any medical condition suffered by the child since. As a result, I do not consider it inexpedient to inflict punishment here.
37. The Crown has referred to R v Filimone To’aho TOSC 2; CR 17 of 2022, supra. The defendant in that case is the defendant’s mentioned brother. The offending in that matter mirrors the defendant’s offending here. Clearly, the defendant has not taken a lesson from his brother’s demise and chose to continue the exact same offending. For those reasons a probation order is not appropriate and it would be highly unjust to grant a discharge without conviction. The application is refused.

Suspension

38. The considerations on suspension discussed in Mo’unga v R [1998] Tonga LR 154 and 157 do not favour the defendant.
39. Mrs Toáho has secured a good government job and the defendant is no longer the sole income earner for the family making it unnecessary for me to consider his breadwinner plea.
40. I have given significant consideration to the submissions made in respect of the defendant’s 3^rd child and his condition. Nonetheless, I find the information on the child’s condition vague and confusing. It is said that his near death experience and evacuation to New Zealand occurred was when he was 2 months old. There is no real explanation as to his condition since. Oddly, when the defendant was sentenced in August 2022, the child’s condition as mentioned and his dependence on the defendant’s presence to put him to sleep was not mentioned and there is no evidence of any medical condition he may have developed since 2022.
41. I have considered all the submissions in favour of a suspended sentence but I remind myself of the defendant’s breach of the condition not to commit any offence punishable by imprisonment since he was sentenced to 16 months’ imprisonment on 1 August, 2022 for receiving stolen property. In suspending the defendant’s sentence the Lord Chief Justice Whitten KC, as he was then, stated the offending was a mistake and the defendant had learnt his lesson. Regrettably, this offending exhibit otherwise. He has neither learnt from that offending or from his brothers. He is unable or unwilling to do so.
42. I thank the Church Minister and those who have written in support of the defendant but it must be clear to this defendant and others who may wish to do the same, that violating a condition of the court’s leniency in suspending a sentence, reduces the likelihood that a defendant will readily be afforded that opportunity again.
43. I am equally sympathetic to his young family but suspending the defendant’s sentence in full will create a flawed precedent and in this case be extremely inappropriate.
44. Having said that and though I am not bound by the Crown’s indicative sentencing submissions I considered the suggested partial suspension made therein, the defendant’s remorse as an indication of his taking responsibility for his actions, the reparations he has made, the complainant’s clemency and the good work he does for the church and community I am prepared to suspend part of his sentence on conditions.

Result

45. Kisione Toáho is convicted for obtaining money by false pretences and is sentenced for:
    1. Count 1 – to 16 months imprisonment
    2. Count 2 – to 9 months imprisonment.
    100. Count 2 shall be served concurrent to count 1.
46. The suspension of the sentence in CR 195 of 2021 is rescinded and the sentence of 16 months imprisonment is activated in full. To give effect to the totality principle, I add 8 months from count 1 of the instant sentence resulting in an aggregate sentence of 24 months imprisonment.
47. I suspend the final 4 months of that sentence for a period of 2 years on the following conditions, namely, that during the said period of suspension, Kisione Toáho is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release from prison; and
    4. complete a life skills and/or such other course as his probation officer may direct.
48. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
49. Subject to compliance with those conditions, and any remissions, the result is that the defendant is required to serve 20 months’ imprisonment.
    

P. Tupou KC
Nuku’alofa: 2 May, 2025 J U D G E

^[1] Kolomalu [2012] TOSC 25
^[2] Havili v Rex [2010] TOCA 3, AC No.2 of 2010
^[3] Para. 4 of letter