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R v Fa'aoa [2025] TOSC 6; CR 153 of 2024 (23 January 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 153 of 2024

BETWEEN:
REX
-Prosecution

AND:
SALESI FA’AOA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution
The Defendant in Person
Date: 23 January 2025

THE CHARGES

1. The Defendant stood trial for the following charge before me on 21-22 and 25 November 2024;
   1. Count 1: Receiving Stolen Property, contrary to section 148 of the Criminal Offences Act.
2. I found the Defendant guilty of the charge on 26 November 2024.

CROWN SUBMISSIONS

3. The Crown filed their sentencing submissions on 10 January 2025 to assist the Court.
4. Aggravating and Mitigating factors were submitted along with the following caselaw:
   1. Rex v Pousima Vaioleti CR 187 of 2023
   2. Rex v Vaiola Pahulu CR 30 of 2023
   100. Rex v Siosio Malohi Vea CR 79 of 2023
5. The Crown recommend the following sentence in relation to this Defendant;
   1. Count 1: 36 months’ imprisonment with the last 6 months suspended on conditions for 2 years.

PRESENTENCE REPORT

6. A presentence report was filed from the Probation Office on 22 January 2025.
7. The report detailed the Accused’s upbringing, personal history and factors relating to the offence with their recommendation.
8. The Probation Office concludes their report in stating the Defendant is at “high-risk” of re-offending. He does not accept being found guilty and continues to assert he was not aware that the goods he bought were stolen.
9. A custodial sentence is recommended from the Probation Officer.
10. I take into account the contents of this report in considering the Defendant’s sentence.

DISCUSSION

1. You were convicted following a trial of receiving stolen property. The amount involved was $43,750. You pleaded not guilty, but I found that the case proved against you.
2. The facts in brief order as follows Noleen Blake, the loser runs a construction and road repair associated business.
3. The company had a warehouse where she keeps a larger number of items. The warehouse had been burgled on several occasions and on the present occasion she found that a large number of items had been stolen, and she traced them via Facebook to your premises.
4. I rejected your defence that you had obtained these goods from someone who sold them to you at what you must’ve realised was a knockdown price and therefore not legitimately obtained.
5. You have a previous record for dishonesty although your last offence for dishonesty was 10 years ago since then you have appeared on several occasions for drugs offences, but I note that the last offense of that nature was committed in 2021.
6. I do not consider that your previous offending is of central importance to the sentence which I must pass, but the amount of goods still namely $43,750 is substantial.
7. It was opportunistic in the sense that in your own admission, you purchased goods in the dubious circumstances which I have already indicated, and you maintained your innocence throughout. I therefore can give no credit for an early or any guilty plea.
8. I bear in mind the helpful comparable cases set out in the prosecution sentencing submission but of course each case is to be determined on its own facts and merit. I do not consider the fact that most if not all the property was recovered is much in the way of mitigation. Certainly, that was not a result of anything done by your part.
9. A sentence of imprisonment is inevitable, and I take as 36 months the starting point. I’ve considered whether any or all or any of the that sentence should be suspended but in accordance with the principles set out in Mo’unga I am unable to do so in your case.
10. You are not young, you did not cooperate with the police and you have previous convictions, however having regard to the principle of totality in the hope that being 33 years old you may amend your ways in the future I will suspend 12 months of the sentence that I have imposed which means that you will serve 24 months in custody.
11. I order that the time which you have already served count towards this sentence during the period of the suspended sentence you must not obviously commit any offense punishable by imprisonment, you will be subject to the probation service. You must report to them within 48 hours of your release.

FINAL RESULT

11. For Count 1 of Receiving Stolen Property, I sentence you to 36 months’ imprisonment with the last 12 months suspended for 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You are placed under Probation for the period of your suspended sentence
    100. You must report to the probation office within 48 hours of your release from custody
12. This sentence is to be backdated from 26 November 2024, when the Defendant was found guilty of this offence.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE

NUKU’ALOFA

23 January 2025