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R v Taufa [2009] TongaLawRp 66; [2009] Tonga LR 462 (22 October 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 129/2009

R

v

Taufa

Ford CJ
22 October 2009

Sentencing – fraud and forgery – guilty plea – 2½ years imprisonment – no suspension

During the first week of March 2009 the accused took the opportunity to steal two blank cheques from the company's cheque-book. On 3 March 2009 he filled in the first cheque made out to cash in the amount of $970 and forged the signature of one of the official signatories for the company. He then gave the cheque to a friend and told him to go to Westpac Bank of Tonga and cash the cheque on his behalf as he was busy at work. His friend duly went to the bank and cashed the cheque and was given $150 from the proceeds. On 19 March he filled in the second cheque for $970 and again forged the signature. He then took the cheque to Westpac Bank and cashed it. When asked to write his name on the back of the cheque he falsely wrote the name of a fellow worker. When his fraudulent activities were later discovered he was interviewed by the police and admitted to the offending.

Held:

1. The accused was entitled to credit for pleading guilty at the first opportunity. He was also entitled to credit for not having any previous convictions but, if he had of had a criminal record, he would not have held the position of trust he had. The Probation Officer stated that he had made an apology which was accepted but the complainant wanted the money repaid. The accused agreed to repay the full amount but there was no evidence that he had made any repayments even though the offending took place seven months earlier.

2. There was a strong need for the Court to impose a sentence that would act as a deterrent and send a clear message to the community that theft involving a breach of trust as a servant would inevitably result in a custodial sentence.

3. If it had not been for his guilty plea he would have faced a sentence of 3½ - 4 years imprisonment. His offending was calculated and deliberate. The sentence imposed on counts 1, 2, 4 and 5 was 2½ years imprisonment and on counts 3 and 6 one years imprisonment. The sentences were concurrent making 2½ years in total.

4. The Court considered suspension of part of the sentence and whether that would aid in the rehabilitation of the offender. The Court did not consider that suspension was likely to aid in rehabilitation. The likelihood of him offending again was remote. The Court was mindful of the seriousness of the offending and the need for an effective deterrence.

5. The Court declined to order the suspension of any part of the sentence.

Case considered:

Mo'unga v R [1998] Tonga LR 154 (CA)

Counsel for the Crown : Miss 'Atiola
Counsel for the accused : Mr Pouono

Judgment

[1] You are appearing for sentence having pleaded guilty to six counts involving two separate incidents in early March 2009 of forgery of cheques belonging to your employer. At the time you were employed as an Accounts Clerk in the spare parts division of the company, Si'i Kae Ola. You had been with that firm since 2008.

[2] According to the summary of facts, while you were alone in the office on one occasion during the first week of March 2009 you took the opportunity to steal two blank cheques from the company's cheque-book. You took the two cheques from the back of the cheque-book so that no one would detect your crime. On 3 March 2009 you filled in the first cheque made out to cash in the amount of $970 and you forged the signature of one of the official signatories for the company, Mr Dion Fifita. You then gave the cheque to a friend and told him to go to Westpac Bank of Tonga and cash the cheque on your behalf as you were busy at work. Your friend duly went to the bank and cashed the cheque for you. In turn, you gave him $150 from the proceeds.

[3] Knowing that your fraudulent activity on that occasion had gone undetected, 16 days later on 19 March 2009 you filled in the second cheque again in the sum of $970 forging the signature of Dion Fifita. On 20 March 2009 you took the cheque to Westpac Bank and cashed it. The teller asked you to write your name down on the back of the cheque and you falsely wrote the name of a fellow worker.

[4] When your fraudulent activities were later discovered, you were interviewed by the police and you admitted to the offending. You told the police that you had used all the money to buy alcohol.

[5] In recent times, this court has had a number of similar cases coming before it involving theft and forgery by accused persons holding positions of trust in either private companies, the public service or with banks. In all those cases, as in your case, the accused is a person of impeccable character who is most unlikely to ever offend again and in each such case, as in yours, there is evidence not only of the accused's complete humiliation and disgrace but also of severe hardship to his or her immediate family.

[6] As indicated, your case is no exception. You are now 36 years of age. According to the probation report you left Apifo'ou College after passing your Form 5 external examination and you began working for the government owned Chronicle newspaper where you met your future wife. In 2006 you were made redundant having worked in the government civil service for some 12 years.

[7] You married in 1999 and you have three children as well as 2 other children your wife had before your marriage. Your wife has written a very moving letter to the court pleading for "a merciful decision" because you are the only breadwinner but she does point out that your church and extended family is taking care and helping with your children's studies as their final examinations are approaching. It is impossible, not to feel immense sorrow for your wife and children. They will be suffering enormously because of your inexplicable criminal activities but the fact of the matter is that you should have stopped and thought about them before you embarked on your fraudulent scheme. It was inevitable that you were going to get caught and given your age and family circumstances, you should have known better.

[8] The Probation Officer has attached to his report references from your Town Officer and the Administrator of the Catholic Cathedral. Your priest speaks about your family being well-known around the inner circle of the diocese and he states that they are noted for their commitment and devotion to the church and its mission. Your standing and the standing of your family in the Catholic community of Ma'ufanga simply makes your actions all the more inexplicable.

[9] You are entitled to credit for pleading guilty at the first opportunity. You are also entitled to credit for not having any previous convictions but, as I have already observed, if you had of had a criminal record, you would not have held the position of trust you had with your employer. The Probation Officer states that you had made an apology which was accepted but the complainant wanted the money repaid. You apparently agreed to repay the full amount but the offending took place some seven months ago and there is no evidence of you having repaid any thing to date.

[10] The maximum sentence on the two forgery counts you face is seven years imprisonment, on the two counts of dealing with forged documents the maximum sentence is five years imprisonment and on the two counts of obtaining by false pretences, the maximum sentence is two years imprisonment. Given the prevalence of this type of offending which I have mentioned earlier, there is a strong need for the court to impose a sentence that will act as a deterrent and send a clear message to the community that theft involving a breach of trust as a servant will inevitably result in a custodial sentence.

[11] If it had not been for your guilty plea, I would have been looking at a sentence of 3½ - 4 years imprisonment. Your offending was calculated and deliberate. Given your guilty plea, however, and the other mitigating factors I have mentioned, the sentence I impose on counts 1, 2, 4 and 5 is 2½ years imprisonment and on counts 3 and 6 one years imprisonment. The sentences are concurrent making 2½ years in total.

[12] I have given careful consideration to the question of suspension of part of the sentence and I have taken into account the guidelines restated by the Court of Appeal in Mo'unga v R [1998] Tonga LR 154. In that case the court stated that the major consideration to be taken into account in considering whether part of a sentence should be suspended is whether the suspension is likely to aid in the rehabilitation of the offender. The court said, "if it is not, or if for any reason rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate."

[13] I do not consider that suspension of any part of the sentence is likely to aid in your rehabilitation. As I have earlier noted, the likelihood of you ever offending again is remote. The court is also mindful of the seriousness of your offending and the need for an effective deterrence. In all the circumstances, I decline to order the suspension of any part of the sentence.