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R v Paeamoelotu [2007] TOLawRp 18; [2007] Tonga LR 114 (13 July 2007)

[2007] Tonga LR 114

IN THE SUPREME COURT OF TONGA

R

v

Paeamoelotu anor

Supreme Court, Nuku'alofa
Andrew J
CR 273-5/2005

13 July 2007; 13 July 2007

Sentencing – forgery and conspiracy to commit forgery – guilty pleas, no prior convictions – imprisonment terms suspended

The accused Paeamoelotu pleaded guilty to a total of 12 counts, namely, four counts of forgery contrary to section 170(1)(a) and (2)(b) of the Criminal Offences Act which each carried a maximum sentence of seven years imprisonment; four counts of knowingly dealing with forged documents contrary to section 172 of the Criminal Offences Act which carried a maximum sentence of five years imprisonment and four counts of conspiracy to commit forgery contrary to sections 15 and 170 of the Criminal Offences Act which carried maximum terms of imprisonment of seven years. 'Iongi pleaded guilty to one count of abetment to forgery contrary to sections 8(a) and 170(1)(a) and (2)(b) and one count of conspiracy to commit forgery both of which offences carried maximum terms of imprisonment of seven years. The offending related to the obtaining of false passports. The offenders pleaded guilty and had no prior convictions. Paeamoelotu assisted and co-operated with the police and gave evidence against three co-accused who had maintained their innocence.

Held:

1. The offences were serious and they showed a course of conduct which involved planning and cunning in the obtaining of false passports for reward. It was systematic and repeated conduct which undermined the validity of the passport system and struck at the legitimate operation of an important function of government. It was a crime against the State.

2. Paeamoelotu had provided assistance to the police at the highest level and it was in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice. What was to be encouraged was a full and frank cooperation on the part of the offender, whatever be his motive. The extent of the discount on sentencing will depend to a large extent upon the willingness with which the disclosure was made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows was already in the position of the authorities. The highest level of discount for assistance should be in the range of 50% although in some circumstances the percentage figure could be higher.

3. Taking all the mitigating factors into account Paeamoelotu was sentenced to 12 months imprisonment on each count. The sentences were concurrent and the total sentence was suspended for two years subject to the accused carrying out 120 hours of community service. 'Iongi was sentenced to nine months imprisonment on each count. The sentences were made concurrent and the total sentence was also suspended for two years on condition that the accused carry out 80 hours of community work.

Cases considered:

R v Cartwright (1989) NSWLR 243

R v Misinale (CR 779/97, 1999, Court of Appeal)

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the prosecution: Mr Sisifa
Counsel for the accused: Mr Niu

Sentence

The accused PITALAMU PAEAMOELOTU pleaded guilty to a total of 12 counts which included: 4 counts of forgery contrary to s 170(1)(a)(2)(b) of the Criminal Offences Act. Those offences carry maximum terms of imprisonment of 7 years.

: 4 Counts of knowingly dealing with forged documents contrary to S.172 of the Criminal Offences Act. Those offences carry maximum terms of imprisonment of 5 years imprisonment.

: 4 Counts of conspiracy to commit forgery contrary to Ss 15 and 170 of the Criminal Offences Act. Those offences carry maximum terms of imprisonment of 7 years.

[2] The accused RAYMOND MAILMAN 'IONGI pleaded guilty to one count of abetment to forgery contrary to Ss 8(a) and 170(1)(a) and 2(b) and one count of conspiracy to commit forgery contrary to Ss 15 and 170 of the Criminal Offences Act. Both offences carry maximum terms of imprisonment of 7 years.

A summary of facts in relation to both accused is as allows:

"At the time of the offences, the accused was employed as a travel agent with the Taufonua Travel Ltd.

On or about the month of March 2004, the accused who was acquainted with Lemoto Lui approached him in the local bars in Nuku'alofa. He asked Lemoto if he can give him his birth certificate for $200. He also explained to Lemoto that he was going to use his birth certificate to lodge an application for a Tongan passport for a foreigner. He also explained to Lemoto the consequences of surrending his passport to him, in that he may not be able to travel out of the country. He also explained to Lemoto that he is going to sign the passport application form. Lemoto agreed, and then went and fetched his passport. Lemoto later returned with his passport and gave it to the accused who signed the application. The accused then told him to come by his office on the next day and fetch the $200 as they had agreed to.

On the next day, Lemoto went to the office of the accused. As he received his $200, he suggested to the accused if he wanted his brother's birth certificate. The accused agreed, so Lemoto went and got his brother's (Stanley Lui) birth certificate. He returned with it and gave it to the accused and received a further $200.

On the same month, the accused was introduced by Lemoto Lui to one: Polaloiti Tonga for his birth certificate. The accused explained to Polaloiti the same instructions that he gave Lemoto in respect of the birth certificate.

Polaloiti agreed, so he signed a passport application and then received $200 for their deal.

The accused also approached one Raymond Mailman 'Iongi, and asked for his birth certificate. He also explained to him the same instructions given to Lemoto and Polaloiti. Raymond then agreed and got his birth certificate. He then signed the application form and then received $200 from the accused.

The accused then approached one: Sunia Halafa'u Tahavalu and requested for his birth certificate. He also explained to him the same instructions he gave Lemoto, Polaloiti and Raymond. Sunia agreed and gave him his birth certificate.

The accused then used the birth certificate that he had received to lodge applications for Tongan passport of foreigners.

The accused is a first offender."

PITALAMU PAEAMOELOTU

These are serious offences. The offender was involved in a course of conduct which involved planning and cunning in the obtaining of false passports which he did for reward. It was systematic and repeated conduct which undermines the validity of the passport system and strikes at the legitimate operation of an important function of government. It is a crime against the state.

Subjectively, the offender is now aged 33. Born in Tongatapu he is the youngest of 13 brothers and sisters and is the only one who is unmarried. His father is alive and lives in the U.S.A. His mother died in 2005. His family are scattered between Tonga, New Zealand and the U.S.A. He has been educated in America and attended Brigham Young University in Hawaii. He majored in accounting and obtained qualifications in travel and tourism. He has worked in America, China and Tonga.

He is clearly an intelligent, personable and successful young man which, sadly, makes it all the more depressing and perplexing as to why he would become involved in this sort of activity. He has never been in any trouble before and has always led a hard-working and law abiding life. He is a likeable and popular person with many friends.

In 2003 he worked for Air New Zealand and subsequently because involved in the travel and tourism industry to the point where he was successfully running his own business involving marketing and tourism. Any period of incarceration would cause the collapse of the business and the loss of employment for others.

MITIGATING FACTORS

As stated the accused is a first offender. I accept the evidence contained in a recent probation report under the hand of Henele Telefoni that the offender is deeply remorseful and regrets his part in this offence. I accept that it is unlikely that he would ever Re: Offend and he has excellent prospects of rehabilitation.

He has pleaded guilty to all offences. Whilst there may have been some changing of his plea, he did plead guilty to the current indictment when these charges because available. I think that the plea of guilty is further evidence of remorse and it is indicative of a willingness to assist the course of justice. He has in fact given much more assistance as he co-operated with the police and has given evidence against 3 co-accused who have maintained their innocence. This is assistance at the highest level which objectively has been most effective.

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities: see R v Cartwright (1989) NSWLR 243 at 252 and 253.

I am satisfied that the offender's assistance and the evidence he gave did stem from contrition even if there may have been some self-interest involved. As stated it was assistance at the highest level. I think that the highest level of discount for assistance should be in the range of 50% although in some circumstances it could exceed this. I would assess the level of discount for the assistance given, at 50%.

This was however objectively a serious and repeated crime against the state which could have undermined the integrity of the Tongan passport system.

In my opinion a proper starting point for a sentence for an offence as objectively serious as this is one of three years imprisonment. In balancing all of the objective circumstances and the subjective circumstances and in particular due to the assistance given, together with his plea of guilty that sentence is reduced to a term of 12 months.

In considering whether it is appropriate to suspend all or any of that sentence I take with account some of the principles as established in the case of R v Misinale (CR 779/97, 1999, Court of Appeal) namely that the offender has a previous good record; he is likely to re: habilitate himself and his co-operation with the authorities is at the highest level. For an offence of this nature any sentence would not be suspended but due to these mitigating factors and overwhelmingly because of the assistance given I propose to suspend the sentence for a period of 2 years on condition that the accused carry out 120 hours of community service. That sentence is imposed on each count to be served concurrently as this was the one course of conduct.

Will you stand up please. PITALAMU PAEAMOELOTU you are sentenced to 12 months imprisonment which will be suspended for 2 years on each count to be served concurrently on condition that you carry out 120 hours of community service in accordance with the terms of the community service order now to be given to you.

RAYMOND MAILMAN 'IONGI

This is a serious offence.

Subjectively I take into account the fact that the offender is now aged 42. He married on 1985 and had 2 children before moving to American Samoa where he had another 5 children. He was deported back to Tonga which ultimately caused the break up of his marriage and 7 of his children returned and lived with him. He has had little education and worked as a labourer as well as fisherman.

This is his first offence. He says that the co-accused PITA approached him saying he needed his birth certificate to apply for a passport "for an Indian guy" and in return he would be paid $1,000. He says he never got the money. He signed the passport application form.

The probation report, which I accept entirely states that:

"He seems to be a good father and a gentle man in our interview. He is a sole bread winner for his family and his parent although his parent is in their mid eighties of age."

I think that accurately describes the offender. I don't think he really understood the seriousness of what he was doing or the consequences involved and he was easily persuaded to part with his birth certificate.

He is a first offender and I accept that he has shown contrition and that he is remorseful. I think it unlikely that he would ever reoffend.

I adopt the recommendation of the Probation Officer that he undertake 80 hours of community service work. Due to his plea of guilty his sentence is reduced by one third.

Would you stand please.

You are sentenced to 9 months imprisonment which will be suspended for 2 years. A condition of suspension is that you carry out 80 hours of community service in accordance with the terms of the community service order now to be given to you. This requires you to carry out general cleaning and tidying work.

That sentence is imposed on both counts to be served concurrently.