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Sefo v R [2005] TongaLawRp 25; [2005] Tonga LR 335 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA

Sefo anor

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
Cr App 15-16/2004

14 July 2005; 21 July 2005

Criminal law – fraud and forgery – appeal against conviction on Judge's summing up – appeal dismissed Sentencing – appeal against sentence – Judge took earlier offending into account – appeal allowed

For the decision of the Supreme Court, see Sefo anor v R [2004] Tonga LR 366.

The first appellant ("Sefo") was charged with four counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $18,063 and one count of forgery resulting in the bank making an unauthorised loan of $20,000. She was found guilty on all counts. On 29 October 2004, she was sentenced to 6 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She appealed against conviction and sentence. The second appellant ("Tu'ipulotu") was charged with five counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $27,800. She was found guilty on all counts. On 29 October 2004, she was sentenced to 5 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She appealed against conviction and sentence. The grounds of appeal were substantially the same and were on the grounds of misdirection or inadequate direction in the summing up.

Held:

1. The Court found that the trial judge provided adequate and sufficient direction to the jury as to what regard to have to anything that the prosecutor may have said about any other possible charges. The jury could have been left in no doubt that they were to disregard that entirely. That ground did not succeed.

2. The Court found that the trial judge provided adequate and sufficient direction to the jury as to what regard to have to anything that the prosecutor said about the Crown never winning a jury trial in Vava'u. The jury could have been left in no doubt that comment should not have been made and that it must be totally disregarded. That ground did not succeed.

3. None of the grounds advanced by the appellants were made out. Both appeals against conviction failed.

4. In sentencing the appellants, the offences for which they had been convicted were properly taken into account. But offences for which they had not been convicted, had not pleaded guilty or had not otherwise admitted should not be taken into account. It was apparent that the trial judge placed considerable weight on what he regarded as serious other offending by the appellants over a longer period than the period covered by the counts that went to the jury. The Court of Appeal was required to consider afresh what were appropriate sentences for the offences of which the appellants were found guilty.

5. The appeals against conviction were dismissed. The appeals against the sentences were allowed. The sentences imposed were quashed. Sefo was sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. She was sentenced to imprisonment for one year on the forgery charge to be cumulative on the sentences on the fraud charges. Tu'ipulotu was sentenced to imprisonment for four years on each of the fraud charges, the sentences to be concurrent. In both cases, the last year of the sentences was suspended for two years.

Cases considered:

R v Misinale (Court of Appeal, CA 13/99, 23 July 1999)

R v Tangata'iloa (Supreme Court, CR 99/00, 3 May 2001)

Wall v R (Supreme Court, CR 31/2000, 27 July 2002)

Counsel for first appellant: Mr Tu'utafaiva
Counsel for second appellant: Mr Fakahua
Counsel for respondent: Mr Sisifa

Judgment

[1] The first appellant ("Sefo") was, after amendments to the indictment, charged with four counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $18,063.00 and one count of forgery resulting in the bank making an unauthorised loan of $20,000.00. Following a trial before Ford J and a jury, she was found guilty on all counts. On 29 October 2004, she was sentenced to 6 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She has appealed against conviction and sentence.

[2] The second appellant ("Tu'ipulotu") was, after amendments to the indictment, charged with five counts of wilfully making a false entry in internal credit vouchers with intent to defraud the ANZ Bank of amounts totalling $27,800.00. In the same trial before Ford J and a jury, she was found guilty on all counts. On 29 October 2004, she was sentenced to 5 years imprisonment on each count, the final year of the sentence being suspended for 2 years from the date of her release, the sentences to be concurrent. She has appealed against conviction and sentence.

[3] A third co-accused, Siniola Faletapu Leleifi was charged on an indictment containing one count of embezzlement. In the same trial, she was found guilty. She was sentenced to 2 years imprisonment, the final year of the sentence being suspended for 2 years from the date of her release. She has not appealed her conviction or sentence.

[4] The charges against another co-accused, 'Alilia Guttenbeil, were dismissed at the end of the case for the Crown on the basis of defects in the charges in the indictment.

[5] The appeals of Sefo and Tu'ipulotu were heard together. As the grounds of appeal are substantially the same, they can be dealt with together.

Background

[6] In the absence of a transcript of the evidence, or a statement of facts that ought to have been provided to the Court by the Crown, this summary of the events leading to the charges has been compiled from the Judge's summing up, counsels' submissions and the Judge's ruling on the application for bail pending appeal.