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R v Finau [2025] TOSC 50; CR 43 of 2025 (9 July 2025)

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


CR 43 of 2025


REX
-v-
Heilala FINAU


SENTENCING REMARKS


BEFORE: HON. JUSTICE TUPOU KC


Appearances: Mr A Fisi’iahi for the Prosecution
Mr T Naufahu for the Accused


Date: 09 July 2025


The proceedings

  1. On 07 May 2025, the Accused pleaded guilty to three counts of Obtaining Money by False Pretences contrary to section 164 of the Criminal Offences Act.
  2. For Count 1, the Defendant obtained $12,500 from Malanata Kava i Popua Havea (referred to hereafter as “Malanata”) under pretence the money was to secure and build a house in Folaha via government housing assistance, which was a falsehood, causing Malanata Kava to give her that money.
  3. In respect of Count 2, the Defendant obtained $5,000 from ‘Elisepa Vaohoi Takitaki (referred to hereafter as “Elisepa”) under pretence the money was to secure and build a house in Lomaiviti via government housing assistance, which was a falsehood causing ‘Elisepa Vaohoi Takitaki to give her that money.
  4. For Count 3, the Defendant obtained $800 from Mafi Taukafa (referred to hereafter as “Mafi”) when she told her that she was the clerk for the CEO of MEIDECC and that she would process her application for housing assistance which was a falsehood, causing Mafi Takataka Vaohoi Takitaki to give her that money.

The offending
Count 1

  1. In January 2024, Mafi was selling pandanus and other goods at the Talamahu Market. She was located at block 24 facing the Tonga Development Bank.
  2. Mafi noticed the Defendant at a nearby canteen, buying a drink. Mafi invited the Defendant to sit down and insisted she sat on a chair across from her. The Defendant accepted the invitation.
  3. During their conversation, the Defendant told Mafi that her name was Makitalena Finau and she was clerking for the CEO of the Ministry of MEIDECC. Mafi asked if MEIDECC was the responsible Ministry dealing with aid for water tanks. The Defendant confirmed that MEIDECC was responsible for that as well as financial assistance for housing.
  4. Mafi explained that she had applied for housing assistance from the Ministry of Infrastructure but found out their focus was in Ha’apai and she was not sure, when that focus would return to Tongatapu.
  5. The Defendant assured Mafi that the housing assistance project was now with MEIDECC. Mafi introduced herself properly and explained her application was in her son Lotima Kalu’s name. The Defendant promised to check the status of the said application and she will complete the forms again if it was not there.
  6. The Defendant made a telephone call where Mafi overheard her say,
    “I have a friend here who can get me money to sort out your thing.” The Defendant asked Mafi for $200 and said she will return her money on Thursday that week.
  7. Mafi asked the Defendant to transfer the application to her daughter, Malanata’s name. The Defendant said she will find out what is required and will update her. The Defendant frequented the market to see Mafi and requested money from her totalling $800 for various reasons.

Count 2

  1. Mafi went home and told Malanata about the Defendant and that she was going to help with their application for housing.
  2. From the month of January up until 21 February the Defendant obtained a total of $12,500 from Malanata pretending that:

a) $400 was to pay a man at the Ministry of Lands, relating to Malanata’s land;

b) $1,600 to clear space for the construction of Malanata’s house;

c) $2,000 as security to begin construction of Malanata's house;

d) $500 for the Defendant’s airfare to New Zealand;

e) $8,000 as estimation fee for construction.

  1. The $8,000 was a loan. On 21 February, the loan was approved. The Defendant attended Malanata’s home to collect the money and then asked to be dropped off at the Prime Minister’s office pretending she did not turn her work computer off.

Count 3

  1. In Malanata’s dealings with the Defendant, she met the Defendant outside the bank where the Defendant mentioned she was obtaining a bank statement to help secure a house for Elisepa. Another time, the Defendant asked for more money and told Malanata that her salary was used to pay off ‘Elisepa’s house.
  2. As a result, Malanata told Elisepa about the Defendant and the house mentioned. Elisepa was interested and asked Malanata to pay the Defendant the $200 required to register her name for the house.
  3. Next, the Defendant called Elisepa and said she just finished a meeting where it was confirmed that an extra house was available. Elisepa said she was interested.
  4. Elisepa called her husband, who was in Australia at the time, and told him about the available house promised by the Defendant. Her husband told her to go to his aunt at Lomaiviti to allocate a suitable piece of land for the construction.
  5. The Defendant, Mafi, Malanata, Elisepa and one Manase Tafea went to Folaha to identify the piece of land for Malanata and then to Lomaiviti to identify the land for Elisepa.
  6. On their return, the Defendant told ‘Elisepa that the cost of sub-dividing the land was $8,000 but her uncle at the Ministry of Lands will do it for $3,000. Elisepa said she only had $1,300. The Defendant said she would take that amount.
  7. Later, the Defendant required $3,000 for land estimation. Elisepa did not have the full amount but gave the Defendant $1,800. The Defendant’s last request was for $300 for her CEO’s farewell and Valentine’s Day gift. Elisepa only had $200 that the Defendant took.
  8. Over time, Malanata and Mafi became suspicious. They visited the offices of MEIDECC and found out that no one by the name Makitalena worked there. They immediately knew something was not right and lodged a complaint with the police.
  9. The Defendant was arrested on 10 September, 2024.

Crown’s submissions

  1. The Crown submits the aggravating features of the offending were:
    1. substantial amount of money obtained;
    2. the number of times she met the complainants and fabricated a new lie;
    1. breach of trust;
    1. the need for Malanata’s family to take out a loan;
    2. deceptive and dishonest conduct.
  2. The Crown submits the following as mitigating features;
    1. early guilty plea;
    2. first-time offender;
    1. restitution near complete;
    1. remorse.

Comparable Sentences

  1. The Crown submits the following comparable sentences:
    1. Rex v Malia Selupe [2021] CR47 of 2020- The Accused was charged with 5 counts of obtaining money by false pretences. Whitten LCJ fixed the following starting points:

a) $20,330 – 24 months imprisonment

b) 16,850 – 20 months

c) $1,000 + $12,000 – 16 months

d) $9,800 – 12 months.

The court considered the offending taking place over a long period and involved separate, unrelated complaints constituting a distinct crime and ordered the aggregate sentence of 6 years’ imprisonment to be served cumulatively

Notwithstanding that view, His Honour, in applying the principle of totality decided that 6 years would be crushing for a first time offender, like the Defendant and reduced the starting point to 4 years’ imprisonment. After mitigation, the Defendant was sentenced to 3 years’ imprisonment, with the final 12 months suspended for 2 years on conditions.

  1. Rex v Filimone To’aho [2021] CR24 of 2021- The Defendant was charged with one count of obtaining money by false pretences and one count of theft for $17,767 he loaned from the complainant. He had repaid an amount of $17,000 with a remaining balance of $2,924.65. When he changed his plea to guilty on the theft count, the obtaining by false pretence charge was dropped. The Defendant was sentenced to 12 months imprisonment, fully suspended for a period 2 years on specific conditions including payment of the outstanding amount of $2,924.65.
  1. Rex v Sione Faka’osi [2025] CR208 of 2024- The Defendant pleaded guilty to one count of obtaining $11,600 by false pretences. The Defendant was a recidivist and was sentenced to 20 months imprisonment, with the final 4 months to be suspended for a period of 2 years on specific conditions.
  1. Rex v ‘Ana Toe’umu Latu [2021] CR46 of 2021- The Accused pleaded guilty to two counts of obtaining by false pretences involving an amount of $20,000. A starting point of 24 months imprisonment was fixed. After discounts in mitigation, a final sentence of 17months imprisonment fully suspended for 2 years on conditions including 180 hours of community service.

Crown’s Position on Sentencing

  1. The Crown suggested the following sentencing formulation:

Starting points:

Count 1- 24 to 30 months imprisonment

Count 2- 12 to 18 months imprisonment

Count 3- 6 to 9 months imprisonment

  1. In mitigation, it was suggested that appropriate discounts were 12 months for Count 1, 6 months for count 2 and 3 months for count 3, resulting in a final sentence of 2 years and 3 months imprisonment, with the final 12 months suspended for 2 years on conditions.

Victim Impact Report

  1. Malanata’s family faced significant financial hardship, frustration and distress because of committing money for the Defendant’s promise of a house. She said her husband took out a loan to provide the $8,000 the Defendant required. Those loan repayments often meant foregoing their family’s daily needs, family cultural obligations and on some days, food on the table.
  2. Mafi said she was angry when she discovered the Defendant’s betrayal of her trust. Some of the money she gave the Defendant was from her son abroad who became upset with her upon finding out where the money went. Her family could not meet financial obligations because of the Defendant’s deceit. Hengihengi Savieti and her husband apologised on behalf of the Defendant. Mafi accepted their apology.
  3. Like the others, Elisepa’s family also suffered financial hardship and tensions because of giving up their hard-earned money in anticipation of a house, which at the end was an abhorrent deception.

Pre-sentencing report

  1. The Defendant is 23, lives at Ngele’ia and employed by Tonga Communications Corporation.
  2. She was raised at Talihau, Vava’u by her parents. She moved to Tongatapu for further education and lived with family at Hofoa. Problems with those relatives caused her to move to Ngele’ia last year, living with Hengihengi Savieti and her family.
  3. The Defendant completed 6th form at Vava’u High School in 2020. She enrolled in a diploma program with the Tonga Institute of Higher Education (TIHE). She apparently is undertaking the last level before graduation.
  4. The Defendant is healthy and although she did not attend church before the offending, she is an active participant now.
  5. According to the Defendant, she often served kava at the Kava Club at Vaololoa Police Station and became friendly with police officer ‘Etuate Siale. She blames officer Siale for her offending. She said that he was the one in need of money and would ask her for money to pay off his debts. Apparently, officer Siale told her about his best friend at MEIDECC handling government aid to support communities in providing water tanks and housing.
  6. She claims $10,000 of the monies she obtained was given to Siale who promised to pay it back. In March, 2024, she found out that Siale and his family had left for New Zealand. She filed a complaint against Siale but the case was closed for a lack of evidence.
  7. The Defendant admitted she used $5,000 for personal expenses, while $1,500 was given to Hengihengi and some sent to her parents in Vava’u. It was agreed that the money has largely been repaid with an outstanding balance of $2,720.
  8. The report ranked the Defendant as low risk in re-offending and acknowledges her remorse.
  9. In those circumstances, it was suggested that any sentence imposed ought to be fully suspended on conditions to include 50 hours of community service and some compensation.

Defendant’s submissions

  1. This morning I received Mr Naufahu’s submissions on behalf of the Defendant. Mr Naufahu relied on R v Ekuasi [2022] TOSC 77, R v Manuele (unreported, CR 141/2015) and R v ‘Anaseini Kolomalu (unreported, CR 115 of 2011) and invited the court to adopt the decision in Ekuasi.
  2. The suggested sentencing formulation were, starting points of 18 months imprisonment for count 1, 9 months for count 2 and 3 months for count 3 to be lifted by 1 month for each count to account for the seriousness of the offending and breach of trust.
  3. In mitigation, it was proposed that 8 months be discounted for the early guilty plea and another 6 months for her clean record, good character, full restitution of monies obtained and the victims clemency, resulting in 8 months imprisonment for count 1, 4 months for count 2 and 2 months for count 3 and for counts 2 and 3 to be served concurrent to count 1.
  4. Lastly, that the sentence be suspended in its entirety for 2 years on conditions proposed by Probation Services.

Considerations

  1. The maximum statutory penalty for obtaining money by false pretences is 7 years imprisonment[1].
  2. It is trite law, that a custodial sentence is not appropriate for purely property offences unless unusual circumstances exist. The courts have gone on to define what may be considered as unusual circumstances, they include factors of trust or breach thereof, signs of systematic offending demonstrating intentional and premeditated deceit, dishonesty and the quantum of money or goods involved.
  3. In this instant, the level of deception exhibited by the Defendant at 23, is repulsive. On her own account, it appears she already owes a co-worker at TCC money as well. As for shifting the blame to a police officer Siale, who seems to have conveniently left the country, I find it more likely a made up story like the rest that trapped her victims in this offending.
  4. The total figure involved is $18,300, evidently, a substantive amount for the complainants earned through selling goods at Talamahu market, committing to a loan and money earned at the cost of leaving a family behind to work abroad.
  5. I have considered the authorities relied on by the Defendant and in particular Ekuasi. What immediately stands out, is the amount involved in that case is less than half the amount here. Secondly, that case involved creating of receipts, considerably distinguished from the pathological lying in this instant. However, on the whole each case must be determined on its own facts
  6. Therefore, having regard to the maximum statutory penalty, the aggravating factors, the comparable sentencings, the systematic nature of the offending and the quantum of money involved, I set the following starting points for each respective count:

Count 1 – 18 months imprisonment

Count 2 – 12 months imprisonment

Count 3 – 3 months imprisonment

  1. For the premeditated deception and degree of harm suffered by the complainants, I lift each count by 10 months, resulting in the following starting points:

Count 1 – 28 months

Count 2 – 22 months

Count 3 – 13 months

  1. For her early guilty plea, good record I deduct, 8 months from count 1, leaving a final sentence of 20 months imprisonment, 6 months from count 2, leaving a final sentence of 16 months imprisonment and 4 months from count 3, leaving a final sentence of 9 months imprisonment, resulting in aggregate sentence of 45 months imprisonment or 3 years and 9 months imprisonment to be served consecutively given each offending is separate and distinct.
  2. I accept that 3 years and 9 months would be crushing for the Defendant and in applying the principle of totality, I reduce the final sentence to 2 years and 9 months imprisonment.
  3. I have read all the references provided by the Defendant and have considered them. I note a letter from Christ’s University providing she was enrolled in a Bachelor of Business Administration program having transferred from Tonga National University. Oddly, the Defendant did not mention any of that to the Probation Officer. Instead the report was that she was on the last level to graduate with a diploma in Tourism and Business Management from TIHE. The noted inconsistencies, no doubt stem from the information the Defendant provided, challenging what to accept as the truth.
  4. However, I remind myself of the guidance in R v Rushby [1971] 1 NSWLR 594 at 598-599 that:

“The sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to the objective circumstances.”

  1. I do not accept the recommendation by the Probation Services for a fully suspended sentence. It would not reflect the seriousness of the offending, the consequences of it nor the public interest in denunciation and deterrence[2]. To that end, I suspend the final 18 months of the sentence imposed.

Result

  1. The Defendant is guilty and convicted on two counts of obtaining money by false pretences and is sentenced to 2 years and 9 months imprisonment.
  2. The final 18 months of the sentence is suspended for a period of 2 years on the following conditions, namely, that during the said period of suspension the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. report to the probation office within 48 hours of her release from prison; and
    1. undertake a life skills course and/or counselling as directed by the Salvation Army.
  3. Failure to comply with those conditions may result in the suspension being rescinded and the Defendant will be required to serve the balance of his sentence.
  4. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 1 year and 3 months in prison.

P. Tupou KC
JUDGE


Nuku’alofa: 9 July, 2025

[1] S.164 and s.145 (b) of Criminal Offences Act
[2] R v Mofoa’aeata Latu, CR 92 of 2018

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