IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 165 of 2025

BETWEEN:
REX
Prosecution
AND:
LEPEKA ‘ILOA HE LOTU MOALA
Defendant
SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC 
Appearances: Mr K. Tamou’a for the Prosecution
Mrs T. Kolokihakaufisi for the Defendant 
Date: 11 March 2026

A.	The Charges 
1.	On 27 January 2026, the Defendant pleaded guilty to two (2) counts of obtaining money by false pretences, contrary to section 164 of the Criminal Offences Act.
2.	Count 1 involved $23,000 and Count 2 involved $65,000.

B.	The Offending 
3.	The Defendant is Lepeka ‘Iloa He Lotu Moala a.k.a Lepeka Fanua a.k.a Uini, a 29 year old female from Masilamea, Vava’u.

The First Complainant
4.	The First Complainant Mele Tahaafe, a 63 year old woman from Pahu, Tongatapu and her husband Kapiteni sought to purchase vehicles in May 2022. They were referred to Sioana Havea, who claimed to represent a vehicle ordering business. Kapiteni agreed to purchase a 3-ton lorry and a Nissan Murano for $23,300 which included customs and offloading fees.
5.	Sioana and one ‘Ahake Taufa was working for the Defendant to advertise the vehicle ordering business on Facebook. They were provided vehicle photos and prices and instructed to collect payments from customers, send the money to the Defendant, and keep a commission.
6.	On 16 June 2022, the Complainant, her husband and their son met Sioana and ‘Ahake at Coffee Post Café and paid $23,300 in cash. Kapiteni signed a written agreement for a Toyota Dyna truck ($15,500) and a Nissan Murano ($5,600), which were expected to arrive in July 2022.
7.	The shipment was repeatedly delayed from July to August and then September 2022. In September, the Complainant was told the vehicles had arrived but later informed they had not been shipped and that the money had instead been sent to the Defendant in Vava’u rather than Japan. Despite assurances that the vehicles would arrive by December 2022, they never did.
8.	On 16 February 2023, the Complainant filed a police complaint. Financial records later showed the Defendant mainly used BSP Bank and no telegraphic transfer to Japan was made. 
9.	On 7 May 2025, the Defendant was interviewed by police and she admitted to the offending, but claimed that the full $23,300 had not been sent to her by ‘Ahake.

The Second Complainant
10.	The Second Complainant, Melefusi Fisi’iahi, a 50 year old female from Veitongo, contacted a Facebook page operated by the Defendant under the name “Soleil Temaleti” in October 2022 after seeing an advertisement of a Toyota Hilux.
11.	The Complainant agreed with the Defendant that the Hilux would be ordered from Japan for $55,500 payable in instalments and was instructed to make payments through the Defendant’s agent Muimui ‘Akau’ola. The Complainant was told the vehicle would arrive by Christmas 2022.
12.	On 18 October 2022, the Complainant paid $35,000 to Muimui, who deposited $34,700 to the Defendant’s BSP account and kept $300 as commission.
13.	On 2 November 2022, the Complainant paid a further $10,500 of which $10,200 was transferred to the Defendant through Manatu ‘Ofa Ltd with transfer fees deducted and Muimui keeping $230 as commission.
14.	When the Hilux did not arrive by 25 December 2022, the Complainant agreed with the Defendant to apply the payments towards a black Hummer advertised on the same Facebook page, priced at $65,000. 
15.	The Defendant instructed the Complainant to deposit further payments directly into a BSP account said to belong to the Defendant’s sister, claiming she was in China. The Complainant was also instructed to tell the bank, if questioned, that the money was for a kava business. 
16.	The Complainant deposited $5,000 on 16 November 2022, another $5,000 later that month, and the remaining $10,000 on 6 December 2022, completing payment for the Hummer. 
17.	The Defendant assured the Complainant the vehicle would arrive before 18 March 2023, but it never did. The Complainant continued receiving excuses about shipping delays before eventually being blocked from the Soleil Temaleti Facebook page.
18.	On 23 December 2024, Police interviewed the Defendant, who admitted to the offending and expressed remorse.  

C.	Previous Convictions
19.	The Defendant does not have any previous convictions. 

D.	Prosecution’s Submissions
20.	The Prosecution considered the aggravating factors for the Defendant to be:
a)	The seriousness of the offending;
b)	The offending took place within March to June 2022 against two different complainants;
c)	The significant amount of money involved;
d)	The breach of trust;
e)	The accused exhibited a high degree of a evasiveness and lack of cooperation after receiving the full 65,000 for the second count, she blocked the Complainant on social media; and
f)	The nature of the offending demonstrates clear pre-meditation.
21.	The mitigating features to be the Defendant’s: 
a)	Full payment of the money owed to the Complaints; and
b)	Early guilty plea.

22.	The Prosecution referred to the following comparable sentences:
a.	R v Heilala Finau TOSC 50; CR 43 of 2025, (9 July 2025) - The Accused pleaded guilty to three counts of obtaining money by false pretences. She obtained $12,500, $5,000 and $800 respectively from three Complainants by falsely representing that the money would be used to secure and build houses through a government housing assistance scheme. Justice Tupou imposed starting points of 18 months, 12 months and 3 months imprisonment for the respective counts, with uplifts applied for the premeditated deception and harm caused. After 8 months reductions for mitigation, including her guilty plea, previous good character, restitution and remorse, the final sentences were 20 months, 16 months and 9 months imprisonment. The sentences were ordered to be served cumulatively, resulting in a total sentence of 3 years and 9 months imprisonment.
b.	Rex v ‘Ekuasi [2022] TOSC 94; CR 3 & 103 of 2022 (11 November 2022) - The accused pleaded guilty to three counts of obtaining money by false pretences by advertising vehicles for sale and obtaining $8,000, $4,000 and $8,500 from three complainants. The offending involved deceptive representations over a period from 2019 to 2021 and resulted in financial loss to the victims. The Court imposed starting points of 20 months, 12 months and 22 months imprisonment respectively. After a 20% reduction for a guilty plea and personal mitigation, the final sentences were; 16 months, 9 months and 18 months. These sentences were ordered to be served cumulatively with another related matter, resulting in an aggregate sentence of 43 months imprisonment, which was reduced on the totality principle to a final sentence of 3 years’ imprisonment.
c.	Rex v Kisione Tu’ipulotu To’aho TOSC 36; CR 2 of 2025, (2 May 2025) - The Accused pleaded guilty to two counts of obtaining money by false pretences after falsely representing to two Complainants that he would order vehicles from Japan. He obtained $19,800 from the Complainant in Count 1 and $9,800 from the Complainant in Count 2. Starting points of 24 months’ imprisonment for Count 1 and 14 months’ imprisonment for Count 2 were imposed. After reductions for his guilty plea and partial restitution, the sentences were reduced to 16 months and 9 months imprisonment respectively. The Accused also had a suspended sentence of 16 months which was activated in full. Applying the totality principle, the Court imposed an aggregate sentence of 24 months’ imprisonment, with the final 4 months suspended for 2 years on conditions.
d.	Attorney General v Rodney Toki AC 19 of 2022 - The Respondent was found guilty of multiple charges of theft and housebreaking committed in succession. He was sentenced to 5 years and 4 months imprisonment, which the Court ordered to run concurrently with an existing 12 years and 3 months imprisonment sentence that had been fully suspended. On appeal, the Appellant argued that given the seriousness of the offending and the respondent’s lengthy criminal history, the sentence should not run entirely concurrently. The appeal was allowed, with the Court of Appeal finding that the sentence should have been at least partially cumulative.
e.	Kaufusi v Rex [2014] TOCA 17; AC 14 & 15 of 2014 (31 October 2014) - The Appellant was convicted of theft as a servant after stealing $41,301 from his employer. He later entered a late guilty plea, and his family repaid the full amount stolen. The Court adopted a starting point of 3 years and 9 months imprisonment. After reductions for mitigation, including the guilty plea, previous good character and full reparation, the sentence was reduced by 13 months, with 9 months of the remaining sentence suspended. The Appellant appealed on the basis that insufficient weight had been given to the mitigating factors, particularly the full repayment. The Court of Appeal dismissed the appeal, finding no error in the sentencing and held that the reduction allowed was within the Court’s discretion. It was relevantly held at:
[22]	“In sentencing Mr Kaufusi, Cato J adopted a starting point of 3 years 9 months. He allowed 13 months for mitigating factors. These were Mr Kaufusi's belated guilty plea, his previous good character and the fact that his family had repaid the money. In suspending 9 months of his sentence, the Judge assessed him as having good prospects of rehabilitation. 
[23]	Mr Niu did not criticize the starting point adopted by the Judge but said there had been insufficient allowance made for mitigating factors. He contrasted the Judge's approach with the allowance he made for a co-offender, Stephanie Cocker, whose offending he described as the most serious of those who pleaded guilty. She had stolen a total of $97,450 over a two-year period. The starting point of four and a half years reflected this. Mitigating factors -an early guilty plea and good character – reduced the sentence to three years of which one year was suspended. The Judge said her early guilty plea demonstrated genuine contrition. 
[24]	Mr Kaufusi's plea came too late to qualify him for any significant discount on sentence. Mr Niu said he would have pleaded guilty at the beginning of the trial after the Judge rejected the objection to the indictment were it not for a concern that to do so would prejudice his appeal rights. If that was his belief it was misplaced and we do not think he can seek further credit for his pleas of guilty on that account. Mr Kaufusi could not have complained if the Judge had given him no credit at all for his late pleas. We infer, however, from the aggregate allowance of 13 months for mitigating factors that the Judge allowed a nominal discount of one month for the late guilty pleas. 
[25]	The question then is whether Mr Kaufusi's repayment of the full amount stolen and previous good character were sufficiently recognized, specifically whether a discount of 12 months adequately reflected those factors. While the Judge could have been more generous, we do not believe he is shown to have erred. 
[26]	It is important that there is a meaningful allowance when recompense of losses is made. It demonstrates a desire to atone and of course lessens the impact of the crime on the victim. If adequate allowance is not routinely made, there is also the concern that the incentive to make reparation will be reduced. 
[27]	In our view a discount of little over 25% for good character and for making reparation is sufficient though the Judge could not have been criticised if he had allowed more. We see no inconsistency with the allowance for mitigating factors in Cocker; the greater part of the discount of 33% to her sentence would have derived from the early guilty plea. 
[28]	Nor do we consider the Judge has been shown to have erred in the period of suspension he chose. Mr Niu referred us to the decision of Schuster J in R v Halapua CR 91 of 2009 in which 3 years of a sentence of 3 years 1 month was suspended. It was also a sentence for embezzlement. The sum involved - $16000 – was repaid in full. 
[29]	Previous sentencing decisions at first instance are generally of limited assistance, particularly where a different Judge is involved and there is a significant discretionary element. Halapua is no exception. On the face of it the end sentence of 3 years 1 month was very high; there had been an early guilty plea and co-operation with the police as well as full reparation. We have the clear impression that mitigating factors were a significant factor in the decision to suspend almost the entire sentence. 
[30]	We accept that Cato J could well have suspended more of the sentence but, again, there is no error of principle in his approach and the period of suspension was well within the scope of his discretion. Mr Kaufusi may see some inconsistency in the fact that, despite making full reparation, he will serve only one month less than Mrs Cocker whose offending was more serious. But when regard is had to other distinguishing features, we do not consider there is an unacceptable degree of disparity.”
23.	The Prosecution’s sentencing formulation was that a custodial sentence is appropriate given the breach of trust, premeditated deception and the substantial sums obtained.
24.	For Count 1, the Prosecution recommended a starting point of 30 months’ imprisonment, reduced by 10 months for mitigation. This leaves a final sentence of 20 months’ imprisonment.
25.	For Count 2, the Prosecution recommended it be the head sentence with a starting point of 4½ years’ imprisonment due to the larger amount of $65,000 and the premeditated nature of the offending. For the Defendant’s early guilty plea and full restitution, 18 months reduction. This leaves a final sentence of 3 years’ imprisonment.

E.	Concurrent or Cumulative 
26.	The Prosecution further submits that the offending occurred at different times and involved different Complainants, and therefore should be treated as separate instances of offending. In line with Attorney General v Toki, the Prosecution submits that distinct offending should attract discrete terms of imprisonment to ensure the Defendant is held accountable.
27.	Accordingly, the Prosecution recommends that 6 months of the sentence for Count 1 be served cumulatively to the sentence for Count 2 and the remaining 4 months be served concurrently. This leaves a final sentence of 3 ½ years imprisonment.
28.	In considering suspension, the Prosecution submits the Defendant is entitled to a partial suspension in line with the principles set out in Mo’unga v Rex [1998] Tonga LR 154.  However, it argues that a fully suspended sentence would not be appropriate given the seriousness of the offending, the impact on the Complainants, and the need for effective deterrence.
29.	While the Prosecution acknowledges the Defendant’s early guilty plea, lack of previous convictions, and full restitution, it submits these factors justify only limited suspension. In line with Kaufusi v Rex, the Crown emphasises that repayment alone does not justify a substantial suspension of sentence.
30.	Accordingly, the Prosecution submits the final 6 months be suspended, leaving a final sentence of 3 years imprisonment. 

F.	Victim Impact Report 
The First Complainant
31.	The offending had a significant financial and emotional impact on the Complainant and her husband. The loss of $23,000 meant they were unable to obtain the vehicles they required for transportation and for the management of Mr Tahaafe’s kava and taro plantation in Longomapu, Vava’u. 
32.	As Mr Tahaafe remained in Tonga while attempting to resolve the matter with the Defendant, he was unable to return to tend to his plantation, which resulted in approximately 800 kava plants being lost.
33.	The money taken had come from the Complainant’s retirement funds. As the funds were not returned for a considerable period, she was compelled to return to work at the age of 63 in order to support their living expenses and assist with purchasing another vehicle.
34.	The Complainant’s husband described the experience as one of the lowest points of his life, particularly as the matter continued from 2022 until they finally received repayment recently.
The Second Complainant
35.	The offending caused financial uncertainty and emotional distress to the Second Complainant. The sum of $65,000, which had been sourced from her business and contributions from her children, was intended to purchase a Hummer vehicle as a gift for her daughter’s 21st birthday. 
36.	When the vehicle was not delivered and the money was not returned, the Complainant experienced considerable stress and uncertainty over an extended period from June 2022 until the matter was formally pursued and eventually resolved.

G.	Defendant’s submissions
37.	 Mrs Kolokiahakufisi, for the Defendant, submitted an extensive number of character references attesting to the Defendant’s character. That she is respectful, faithful cares deeply for her family and that she is relied on greatly by her family for financial support and guidance. 
38.	Further, a receipt of all monies owed to the Complainants was paid in full on 29 January 2026. This was received and accepted by the Complainants on the same day. 
39.	Mrs Kolokihakaufisi relied on the following comparable sentences for a fully suspended sentence:
a)	R v To’aho [2021] TOSC 107; CR 24 of 2021 (29 June 2021);
b)	R v To’ia [2023] TOSC 14; CR 112 of 2022 (28 February 2023); and
c)	R v Singh [2026] TOSC 6; CR 152 of 2025 (20 January 2026).

H.	Pre-Sentence Report 
40.	The Defendant is a mother of five children. She was born in Vava’u and raised partly by her parents and partly by her grandparents, who served as Pentecostal pastors. She married in 2012 and has three children from that marriage. 
41.	The Defendant and her husband separated and she is now in a de facto relationship where she has two additional children. She currently resides in Longolongo, Tongatapu with her children and extended family while awaiting the outcome of this matter. Her family home and land in Vava’u were sold to assist in repaying debts owed to the Complainants.
42.	The Defendant received primary and secondary education in Tonga and for a short period in American Samoa. She reports no health issues and was previously self-employed. 
43.	In relation to the offending, the Defendant admitted that she obtained money from clients by false pretences involving vehicle orders from Japan. She accepts full responsibility for her actions and expressed genuine remorse. 
44.	The Probation Officer is of the view that the Defendant is remorseful, supported by her family, and motivated to reform and rebuild her life for the benefit of her children. Taking into account her early guilty plea, her status as a first-time offender, the full restitution made, the victims’ forgiveness, and her prospects of rehabilitation, the Probation Officer recommends that the Court consider a partly suspended sentence, subject to conditions.

I.	Discussion 
45.	I have carefully considered all of the material before me, including the agreed summary of facts, the submissions of the Crown, the Defendant’s character references, the Pre-Sentence Report and the Victim Impact Reports. I also bear in mind that the Defendant has now repaid in full all monies owed to the Complainants and reiterate that although the comparable sentences provided are helpful in assisting the Court, each matter must be determined on its own particular facts. 
46.	The offending in this case involved deliberate deception carried out through the use of social media advertisements offering to order vehicles from overseas. The Defendant used agents to collect payments from customers and represented that the funds would be sent to Japan to purchase vehicles. In reality relevant to this case, no such arrangements were made and the monies were instead retained by the Defendant.
47.	This conduct was not impulsive. It was premeditated and involved a clear breach of trust, particularly in circumstances where members of the public relied on the Defendant’s representations when transferring substantial sums of money. The offending involved two separate Complainants and significant amounts of money totaling $88,000.
48.	The impact on the Complainants was considerable. The First Complainant and her husband were deprived of retirement funds which they intended to use to purchase vehicles necessary for transportation and farming activities. As a result, the husband was unable to travel to maintain his plantation which led to the loss of a significant number of kava plants. The Second Complainant used funds from her business and family contributions to purchase a vehicle intended as a gift for her daughter’s 21st birthday and experienced considerable distress when the vehicle never arrived.
49.	Offending of this nature undermines trust in commercial dealings and causes significant hardship to victims. The Court must therefore ensure that the sentence imposed properly reflects denunciation, deterrence and accountability whilst also properly considering the circumstances of the Defendant herself and the possibility of rehabilitation.

J.	Starting Point 
50.	The maximum penalty for obtaining money by false pretences is 7 years imprisonment.
51.	In determining the appropriate starting point for each Count, I set a starting point of 20 months imprisonment for Count 1. For Count 2, I agree with the Prosecution that it should be the Head Count to reflect the substantial amount of money obtained. Accordingly, I set a starting point of 3 years imprisonment. This leaves a final starting point of 4 years and 8 months imprisonment. 

K.	Mitigation & Cumulative or Concurrent 
52.	Against these matters, I have weighed the mitigating factors. The Defendant has entered an early guilty plea, saving the Court and the Complainants the burden of a full trial. She has fully repaid all monies owed, which were accepted by the Complainants. These factors are highly relevant under Kaufusi & Anor v Rex, where full restitution, good character, and remorse justified partial or full suspension.
53.	The Defendant is a first-time offender, shows genuine remorse, and has strong family and community support as outlined in the Pre-Sentence Report. It is also of significant note that the Defendant’s family sold their family land to repay the monies owed to the Complainants. 
54.	Taking all of these matters into account, I make the following deductions:
a.	Count 1 – I reduce the starting point by 8 months. This leaves a final sentence of 12 months imprisonment; and 
b.	Count 2 – I reduce the starting point by 12 months. This leaves a final sentence of 24 months imprisonment. 
55.	Now turning to whether these sentences should be served concurrently or cumulatively. 
56.	I accept that the offendings were two separate incidents and involved two different Complainants in the span of a year, in 2022. 
57.	As such, I take 6 months from Count 1 and impose it be served cumulatively to Count 2 with the remaining 6 months to be concurrent resulting in 30 months imprisonment altogether.

L.	Suspension
58.	I now turn to consider whether a whole or part of the sentence can be suspended. Applying the principles in Mo’unga and Kaufusi & Anor v Rex, the Court must balance the seriousness of the offending with the Defendant’s mitigating circumstances.
59.	Again, the Defendant is a first-time offender, she has shown remorse, and she has fully repaid the Complainants. However, these matters must be balanced against the seriousness of the offending and the need for general deterrence, particularly in cases involving fraudulent schemes involving substantial sums of money.
60.	In the circumstances that all monies owed to the Complainants have been repaid and accepted by the Complainants, I am satisfied despite the Crown’s submissions that it is just about possible in those circumstances to suspend the whole of the sentence on conditions. 
61.	I do not impose this lightly, especially given the ordeal this put the Complainants through. Any deviation, further offending or breach of the conditions that I impose on your suspended sentence today will result in immediate imprisonment and activation of the entire sentence.

M.	Final Result 
62.	For the above reasons, I sentence the Defendant as follows:
a.	Count 1 – 12 months imprisonment; and
b.	Count 2 – 24 months imprisonment. 
63.	I take 6 months from Count 1 to be served cumulatively to Count 2 and the remainder to be concurrent. 
64.	For the avoidance of doubt, the Defendant is sentenced to 30 months imprisonment, fully suspended for 3 years on the following conditions: 
a.	Not commit any offence punishable by imprisonment; 
b.	Be placed on probation;
c.	Report to the Probation Office within 24 hours;
d.	Complete 120 hours of community service at the direction of the Probation Officer within 2 years;
e.	Attend courses at the Salvation Army or as directed by the Probation Officer; and
f.	Live where directed by the Probation Officer. 
65.	That is the order of the Court.

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA                                                                     
11 MARCH 2026