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R v Hafoka [2025] TOSC 33; CR 100 of 2024 (17 April 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 100 of 2024

REX

-v-

Samuela HAFOKA

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr A. Fisi’iahi for the Prosecution

Defendant in Person

Date: 17 April, 2025

The proceedings

1. On 29 January, 2025, the Defendant pleaded guilty to one count of theft contrary to section 143 and 145(b) of the Criminal Offences Act.

The offending

2. On or about 28 September 2023, the Complainant, Sione Poilangi Paea, parked his vehicle, a red MAZDA car, licensed C 27972 (“the Car”), in front of the Loumaile Lodge along Taufa’ahau Road. He locked the vehicle and went inside the Lodge, I am assuming for work.
3. After work, Mr Paea had drinks at the Reload Bar and took a taxi home.
4. At around 2am the next morning, the defendant found car keys in front of the Maseia Plaza. Upon sighting vehicles parked along Taufaáhau Road on both sides of the road in the area, he pressed the car keys unlocking a red car he claimed to have been parked in front of the ANZ Bank. The defendant drove off in the said Car.
5. On or around 8am the same morning, Mr Paea discovered his Car was missing and reported it to the police. The Car is valued at $13,000.
6. On or about 1 October 2023, the Police responded to a report from Kolofoóu about the defendant. He was heavily intoxicated but insisted on driving a red car he had driven to Fetoa Lotaki’s home.
7. The Accused was arrested for drunkenness and taken to the Central Police Station together with the red Car.
8. Mr Paea identified the said red Car as his missing vehicle.
9. The Accused cooperated with the Police and admitted to the offending.

Crown’s submissions

10. The Crown submits the aggravating features of the offending were:
    1. the seriousness of the offending;
    2. Mr Paea incurred financial costs in fixing the vehicle after it was recovered.
    100. the defendant is a recidivist with 2 convictions in 2022.
11. The Crown submits the following as mitigating features;
    1. guilty plea, albeit late
    2. cooperation with the Police;
    100. recovery of vehicle;
    4. attempted to present apology.

The Victim Impact Report

12. Mr Paea said the said vehicle was new as he bought it for his daughter’s first birthday. When it was recovered, it was damaged. He spent $1,000 to fix and paint the damaged part(s). He is using it as a rental vehicle now.
13. Since his own mother’s passing he realised there were more valuable things in life compared to the loss of a vehicle. He has forgiven the defendant and is willing to provide him a job in his construction company, Poilangi & Sons Ltd.
14. The Crown referred to the following comparable sentences in the cases of:
    1. R v Suliana Fate [2021] TOSC 23 (25 February 2021, LCJ Whitten)- The defendant pleaded guilty to theft of vehicle valued at $11,000 and common assault. The Accused was drinking with the Complainant at his home where she hit the complainant on his head with a stick and took off in his vehicle to a house at Ha’alalo. A starting point of 2 years’ imprisonment was imposed. It was reduced to 16 months’ imprisonment in mitigation with full suspension for 2 years on conditions.
    2. Rex v Patelesio [2008] Tonga LR 260- The Accused pleaded guilty to abetment and theft of a government motor vehicle and the subsequent concealment of his identity. He was a first time offender and expressed remorse by apologizing for his offending. He was sentenced to 9 months’ imprisonment, fully suspended for 1 year on the condition that he completes 80 hours’ community service.
    100. R v Maikolo Sinoti CR25/23 TOSC 49- The Accused pleaded guilty to one count of theft of a private vehicle. A starting point of 2 ½ years’ imprisonment was imposed to reflect the seriousness of the offending, effects on the Complainant and the need for deterrence. It was reduced to 22 months’ imprisonment in mitigation with the final 10 months to be suspended for 2 years on conditions.
15. The Crown’s proposed sentencing formulation was a starting point of 24 – 30 months imprisonment to be reduced by 8 months in mitigation, resulting in a final sentence between 16 – 22 months imprisonment. The final 8 months to be suspended for a period of 2 years on conditions.

Defendant’s submissions

16. The Defendant submitted a letter of 21 March, 2024 seeking a lenient sentence. He currently resides with his widowed mother and three of his children.
17. He and his wife separated and she has since married in the United States in custody of one of their daughters. He has rekindled a relationship with an old friend from 2006 and intends to marry her this month. He claims her influence has been positive and changed him.
18. He blames hard times due to loss of immediate family members, alcohol and drug abuse. He raised the forgiveness of Mr Paea and his offer to employ him and wants the court to consider his young kids and his ill mother.
19. He deeply regrets his mistakes and strongly believes he will be able to contribute positively to the Community and requests the court to consider the Probation Officer’s recommendations.

Pre-sentencing report

20. The defendant is 43 years old and a single father to 3 young children with whom he resides in Kolofoóu with his widowed mother. Both he and the “active support” of his mother provide for his children.
21. He completed Form 6 and is currently employed by a construction company.
22. The town officer of Kolofoóu acknowledges his parents as good members of the community. However, he said that the defendant and his brother Tevita are known offenders in the company of their peers.
23. The defendant’s mother confirmed the defendant’s relationship with a Ms Lepeka and their intention to get married this month. She has observed a significant change in her son as a result of the said relationship. She says the substance abuse has stopped and he has completed the conditions of a previous sentence in 2019.
24. According to the defendant he stole the vehicle to go for a ride as he had no vehicle at the time. He took it to a drinking party and when he and the vehicle were apprehended he readily admitted the offending.
25. He is reported to have regretted his actions and had apologised to Mr Paea. He is said to have realised his irresponsible conduct which has caused suffering for his children. He has quit alcohol and drugs as well as associating with his peers. This is confirmed by his mother.
26. The report opined that the positive change indicate a low risk of re-offending if the defendant continues on this path. An appropriate sentence was left to the court.

Starting Point

27. Section 145(b) of the Criminal Offences Act provides a maximum penalty for theft over $10,000 of 7 years’ imprisonment.
28. Having regard to the maximum statutory penalty, the aggravating factors, relevant comparable sentences referred to and the principles of deterrence and denunciation, I set a starting point of 30 months imprisonment.
29. In mitigation, the starting point is reduced by 8 months resulting in a final sentence of 22 months imprisonment.

Suspension

30. The considerations on suspension in Mo’unga [1998] Tonga LR 154 at 157, does not favour the defendant except for his cooperation with the police. In balancing the defendant’s ridiculous urge to steal another’s vehicle “to go for a ride” against his circumstances at home with his children and mother and the influence a new wife may have on his life signal a likelihood to respond positively to rehabilitation. I note that although the defendant purports his mother is ill, the probation report does not acknowledge it. I also acknowledge Mr Paea’s forgiveness of the defendant.
31. For those reasons I suspend the final 10 months of the final sentence on conditions.

Result

32. Samuela Hafoka is convicted of theft and is sentenced to 22 months’ imprisonment.
33. The final 10 months of the sentence is to be suspended for a period of two years from the date of his release on the following conditions, namely that, during the period of suspension, the Defendant is to:

(a) not commit any offence punishable by imprisonment;

(b) be placed on probation;

(c) report to the probation office within 48 hours of his release from prison; and

(d) complete a life skills or such other course as his probation officer may direct.

34. Failure to comply with any of those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his sentence.
35. Subject to compliance with those conditions, and any remissions, the result is that the defendant is required to serve 12 months’ imprisonment.
    

P. Tupou KC

Nuku’alofa: 17 April, 2025 J U D G E