The Appeal Court has convicted a 27-year-old woman for embezzling more than $11,000 pa’anga; overturning a decision that was granted by Justice Laki Niu to discharge her without conviction last year.

Although Loleini ‘Ala had pleaded guilty in the Supreme Court to one count of embezzlement she was discharged without conviction on November 7, 2018 by Justice Niu.

The Crown appealed against his ruling on sentence.

'Ala was employed by a local business and a trusted employee responsible for doing the banking.

On November 22, 2017 she was given $22,500 in cash to deposit into her employer’s bank account with MBF Bank. She did not do this but deposited $14,375 into her own account with BSP Tonga Bank, which she had opened a few days earlier.

She then parked her vehicle opposite the Royal Tombs and staged a robbery by causing injuries to herself and scattering loose banknotes inside the vehicle, and made a false complaint with the Police that she had been robbed.

The Appeal Court said the balance of the money was in her possession and some of her employer’s money that she withdrew from her bank account, amounting in total to more than $11,000 pa’anga, which she spent on drinks, dining, partying and shopping, 

The Police were suspicious of her complaint and obtained records from the bank, which revealed the large sum deposited into her bank account.

She admitted to Police what she had done and pleaded guilty at the first opportunity. 

Judge in error

The Appeal Court found Justice Niu fell into error in a number of respects and was satisfied that his decision was wrong.

This was due to factors that included not referring to Tu‘iha‘ateiho (supra) or any other authorities that have followed it and did not consider whether the consequences of entering a conviction were out of all proportion to the gravity of her offending. 

Justice Niu also did not regard to any of the cases where it had been held that a custodial sentence will generally be appropriate in cases of embezzlement. 

"We do not agree with Justice Niu’s conclusion that Section 204 under the Criminal Offences Act was enacted to avoid convictions being entered against the young and foolish."

In addition, the judge engaged in speculation on a range of matters. “There was no evidence before him about the effects of the entry of convictions on young people generally or that many or most young offenders who are convicted of an offence reoffend.” 

The Appeal Court found, Justice Niu had reached his decision in a procedurally unfair manner, in that he did not raise with counsel the possibility that he might discharge 'Ala under Section 204 and that no arguments were advanced to the him that the entry of a conviction would be an obstacle to her future employment or travel. 

Staging robbery

“ 'Ala's offending involved a significant breach of trust and the taking of substantial amount of money. The gravity of the offending was intensified by her staging the robbery and laying false complaint to Police.”

She embezzled from her employer not because of economic need but out of resentment and to fund frivolous activities. This was offending of a serious nature clearly justifying a custodial sentence,” said the Court.

“This offending was so serious as to make a discharge without conviction inappropriate. It was not within the range of outcomes that the judge below could have considered were open to him."

In allowing, the Crown's appeal, ‘Ala was convicted on embezzlement and sentenced to two-years imprisonment, which was fully suspended on conditions.

This was after counsel agreed that the appropriate outcome was that she be convicted and sentenced to a fully suspended period of imprisonment. 

“We have decided to follow that course although it should not be regarded as a precedent in future cases. ‘Ala can consider herself lucky she will not be required to serve a period of imprisonment,” said the Appeal Court.