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R v Leger [2025] TOSC 47; CR 38 of 2025 (25 June 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 38 of 2025

BETWEEN:

REX

AND:

AMY LEGER

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances:
Mr. J Fifita for the Prosecution
Defendant in Person
Date:
25 June, 2025

The proceedings

1. On 23 April 2025, the Defendant pleaded guilty to three counts of Forgery, contrary to section 170(1)(a), (2)(b), (3)(a) and (4) of the Criminal Offences Act and one count of Theft, contrary to section 143(a) and 145(b) of the said Act.

The offending

2. The Accused was previously employed by Mr. and Hon. Frederica Filipe as their son’s nanny. While she was so employed she withdrew money from World Resources Company Ltd.’s^[1] cheque account in these amounts:
   1. $3,000 on 25 August, 2023;
   2. $4,000 on 20 September, 2023; and
   100. $3,000 on 5 October, 2023.
        
3. The said cheques had been blank cheques pre-signed by Hon. Frederica Filipe. Without authorisation from the company or her employers, the Defendant simply inserted the said amounts, presented the cheques at the Bank of the South Pacific on the respective dates and received the proceeds.
4. A complaint was lodged on behalf of Mr. Filipe and the Defendant was arrested on 29 September, 2024.

Crown’s submissions

5. The Crown submitted the aggravating features were: the seriousness of the offence; the frequency and duration of the offending; the substantive financial loss to her employers; and breach of her position of trust.
6. The Crown submitted the mitigating features were: her early guilty plea; she is a first-time offender, cooperated with the police and is remorseful for her conduct.
   

Crown’s Sentencing Comparable

7. The Crown referred me to the cases of:
   1. R v ‘Ekuasi (CR -3/2022)- where the accused was charged with one count of obtaining by false pretences and two counts of forgery, involving the creation of two false receipts for a total amount of $6,100. A starting point of 18 months was fixed for the false pretence, 9 months for forging a receipt for $2,000 and 12 months for the receipt for $4,100. After discounts for mitigation, a final sentence of 18 months was imposed and fully suspended on conditions.
   2. R v Lolini ‘Ofa (unreported, CR 316 of 2020)- The Accused was charged with the theft of $18,189.60, three counts of forgery and three counts of knowingly dealing with forged documents. A final sentence of 2 years’ imprisonment was imposed for the theft, 12 months imprisonment for the 3 counts of forgery and 6 months imprisonment for knowingly dealing with a forged document, all to be served concurrently to the theft sentence. The sentence was fully suspended for 1 year on conditions.
   100. R v ‘Ilona Maria Ika (unreported, CR187 of 2020)- The Accused was charged with theft for withdrawing money from clients’ accounts on 9 different occasions, totalling $18,000. A starting point of 2 years was set with a deduction of 12 months in mitigation. LCJ Whitten QC denied a full suspension of her sentence, on the basis that doing so would not provide an effective deterrence to others in a similar position of trust attempting to steal from those to whom trust is owed. To that effect His Honour suspended only 6 months of the final sentence of 12 months imposed.
   4. R v Lafo’ou [2023] TOSC 53- The Accused pleaded guilty to one count of theft and one count of forgery, involving 46 unauthorized withdrawals totalling $34,300 from a National Rugby League account over 13 months. The maximum penalty for each charge for 7 years. A starting point of 3 years was set for the theft and 9 months for forgery. After considering the mitigating factors, the final sentence was 20 months imprisonment, with the last 12 months suspended for 2 years on conditions, including probation. Consequently, the Accused was sentenced to serve 8months imprisonment, receiving credit for any time spent in custody prior to sentencing.

Crown’s Position on Sentencing

8. The Crown proposes a custodial sentence with Count 4 as the head sentence with a starting point of between 24 – 30 months imprisonment and for counts 1 – 3 a starting point of 18-21 months.
9. In mitigation, it was suggested that 10 months is deducted from the starting point resulting in a final sentence of 14-20 months imprisonment for the head sentence and a deduction of 6 months from the starting points for counts 1 – 3 resulting in a final sentence of 12-15 months imprisonment.
10. The final suggested sentence was 20 months imprisonment for Count 4. Counts 1- 3 to be served concurrent to count 4 with the final 12 months to be suspended for a period of 2 years on conditions.
    

Pre-sentencing report

11. The Defendant is 35 and unemployed. She is at home looking after her mother. She grew up as the eldest of 8 siblings. Her parents separated and her father relocated to Australia where he has since re-married. All siblings remained with their mother throughout. She is a single mother to a 20-year-old son.
12. Previously, her mother had served Hon. Frederica Filipe’s family until her health deteriorated.
13. The defendant described her work as challenging and openly divulged personal and private details of her employees’ circumstances. She said that she had used the money for their children’s needs but in light of her guilty plea, the Probation Officer was not convinced of her version of the offending.
14. When the missing money was discovered, the Defendant apologised to Hon. Frederica Filipe who forgave her but said the money belonged to Mr. Filipe. However, she agreed that she may work to repay what she owed the company. She has repaid $1,000.
15. The probation officer rated the Defendant at low risk of re-offending given her youth clean record and early guilty plea. Accordingly, it was suggested that a fully suspended sentence on conditions to include attending a course on Life Skills was appropriate.
    

Defendant’s submission

16. In a letter to the Court dated 12 May, 2025, the Defendant pleaded for leniency. She expressed her remorse in committing this offending and regrets the trust lost as a result of her shortcomings.
    

Starting Point

17. The maximum statutory penalty for forgery is 7 years’ imprisonment and theft of anything of value in excess of $10,000 is also 7 years’ imprisonment.
18. I agree with the Prosecution’s suggestion that the theft count should be the head sentence. Although they both carry the same penalty, the theft count is the most serious.
19. In considering the maximum statutory penalty, the aggravating factors, the comparable authorities and principles of punishment, denunciation and deterrence I set a starting point for each count as below:

Count 1- 9 months imprisonment

Count 2- 12 months imprisonment

Count 3 - 9 months imprisonment

Count 4 – 20 months imprisonment

Mitigation

20. For his early guilty plea, clean record and partial reparation of $1,000, I deduct 5 months from each count, resulting in a final sentence of:

Count 1 – 4 months imprisonment

Count 2 – 7 months imprisonment

Count 3 - 4 months imprisonment

Count 4- 15 months imprisonment

21. I do not agree with the Prosecution’s suggestion that Counts 1- 3 be served concurrent to Count 4. Although the theft was facilitated by the forgery counts, they were distinctly separate premeditated offending over a period of 3 months. As such, I add 1 month each from Counts 1-3 to the sentence imposed for Count 4 resulting in a final sentence of 18 months imprisonment.
    

Suspension

22. As against the principle for suspension in Mo’unga^[2], the Defendant is not young. She is 35 and has raised a 20-year-old on her own. She is a mature and a worldly-wise woman who gained the trust and the work as a carer for the complainants’ children.
23. She has in her favour a clean record, cooperation with the police and has made an effort and managed to pay off part of the money she took. Although she defended her actions during her interview with the Probation Officer by attempting to throw her employers under the bus, it was clear from her letter of 12 May, 2025 that she accepted the fault was all hers, demonstrating remorse and accounting for her actions. I also take into account Hon. Frederica Filipe’s clemency and fully suspend the sentence imposed on conditions.
24. I have considered Ika and the circumstances under which His Honour, LCJ Whitten refused to suspend the Defendant’s sentence in full in that case. I am of the view that the circumstances in this case is distinct from Ika and more aligned with the circumstances in ‘Ofa where Her Honour, Acting Justice Langi granted a fully suspended sentence for 1 count of theft and 3 counts of forgery of an amount of $18,189.60.
    

Result

25. The defendant, Amy Leger, is convicted of:
    1. Count 1 and sentenced to 4 months imprisonment
    2. Count 2 and sentenced to 7 months imprisonment
    100. Count 3 and sentenced to 4 months imprisonment
    4. Count 4 and sentenced to 15 months imprisonment
26. One month from Counts 1,2 and 3 are added to the sentence imposed in Count 4, resulting in an aggregate sentence of 18 months imprisonment which I fully suspend for a period of 2 years on the condition that during the said period of suspension, the Defendant is to:

a) not commit any offence punishable by imprisonment;

b) be placed on probation;

100. undertake and complete a life skills course; and

4. complete 40 hours of community service.

27. Failure to comply with the said conditions may result in the suspension being rescinded,

in which case, the Defendant will be required to complete the balance of his prison

term.

P. Tupou KC
J U D G E

Nuku’alofa: 25 June, 2025

^[1] her employer’s company
^[2]