Judge points to serious breach of trust in Lavulavu couple’s criminal offending [1]
Friday, July 2, 2021 - 19:03. Updated on Friday, July 2, 2021 - 19:18.
Imposing six year prison sentences on convicted fraudsters 'Etuate and 'Akosita Lavulavu today Hon. Mr Justice J. Cooper said he had taken into account all mitigating factors and had kept his overall sentence as low as he as he could.
The judge said he took no account of the corrupting of the trial process by both defendants and their submission of false references.
“I ignore the fact that Mr Lavulavu has sought to try and influence the outcome with the lure of money.”
“I also decline to take into account what the money was used for. They were not charged with theft, when they could have been. The charges they have been convicted of relate to the process of obtaining the funds, not their use.
“That said, I utterly reject their claims that the money was used for UTRI and therefore teachers and students as totally false,” said Justice Cooper.
“Had either defendant admitted their guilt and repaid the monies, as they seemingly can afford to do, then I would have approached this sentence in a totally different way. Instead, Mr Lavulavu offered what some might think sounds very much like a bribe to stay out of prison. But, I do not take that into account either, when I turn to my sentence,” said Justice Cooper.
In his 61 points sentencing remarks, released this afternoon, the judge noted that the maximum possible sentence is seven years on each of three counts.
Obtaining money by false pretences
The couple, ('Etuate, a former Cabinet member; and 'Akosita, a current Cabinet Minister), were convicted on three count indictment they jointly faced. Each an allegation of obtaining money by false presentences contrary to section 164 Criminal Offences Act . The offences occurred in 2014 and 2015.
The judge took Count 2 as the head count. This was the obtaining by deception of $249,600, from the Ministry of Education and Training on about 18 November 2014, when the couple had falsely represented in an application for funds from TVET Grant that there were 416 students at the 'Unuaki 'o Tonga Royal Institute for semester 2 of 2014 but they knew that was false.
The judge set a starting point of five years imprisonment based on comparable cases in Tonga for lesser amounts.
“Because of the aggravating factors of serious breach trust, it being government money, that it was planned and carefully executed fraud over a substantial period of time, along with the fact that this offence is of a significantly higher value, I increase that to a sentence of 6 years,” he said.
Two children
The judge also said he had thought long and hard about the submissions in relation to Mrs Lavulavu and her being of mother of two young children.
“I feel I am unable to lessen her sentence despite this. She has loving and supportive parents, grandparents to those children. It could be argued that she deliberately put her children's wellbeing in jeopardy with her course of criminal behaviour; some might argue that was an aggravating feature to do so, I do not see it that way, but I do not lessen her sentence for that.”
“Both defendants were in this together, as I have said before and their sentences reflect this.”
Concurrent sentences
On Counts 1 (obtaining $146,400 by false pretence from TVET on about 29 May 2014) and Count 3 (obtaining $162,600 by false pretence from TVET on about 29 June 2015), the judge imposed four years imprisonment to be served concurrently.
“On this occasion I decline to make any part of the sentence consecutive,” said Justice Cooper.
“Mrs Lavulavu was hitherto of good character and so I suspend the last 12 months for two years on the condition that she comply with the probation officer, satisfactorily complete a life skills course and commit no offence punishable by imprisonment.
“Mr Lavulavu has recorded against him previous matters of a like nature and, as a consequence, l do not suspend any portion of his sentence.
This means that 'Akosita will serve five years and 'Etuate will serve six years imprisonment.
No remorse
The judge also said that he had taken into account all submissions for both defendants, along with the references and pre sentence reports and all that had been said.
He noted there were concerns over the way 'Akosita Lavulavu tried to present herself to the probation officer
Points highlighted by the judge included, that while 'Akosita Lavulavu begged the mercy of the court, however, “In her pre sentence report it is noted that there has been no attempt to repay the money; that she still maintains her innocence, that is to say she shows no remorse.
“The report writer raises a real concern with the manner in which she has tried to present herself to the probation officer, indeed at large, in respect of her character and the references she has furnished
"The report writer sought verification from the relevant authors and they responded that the content of the letter was not authored by them but rather created beforehand by the accused and was just given to them by her secretary to sign without proper consultation, therefore they are not fully aware of its content... "
The judge noted that a further referee upon his reference being checked denied knowledge of paragraph 7 & 8 of the letter and said it may have been amended from the original he signed, and that the report writer concluded : "This is an act of dishonesty which further proves her true character ..."
Bad character
The judge said 'Etuate Lavulavu's career and positions of responsibility had been emphasised to him, along with mitigating arguments when considering his bad character and conviction abroad.
“In his pre sentence report the author notes that he ['Etuate] still denies these offences; that is to say shows no remorse, blames the court for being biased and, albeit does not accept his guilt offers to pay all the money back in exchange for a community penalty and being spared prison.”
The report writer noted the community views: "The most common concern raised by most of those who were interviewed is that the element of trusting the accused's credibility is doubted because of their individual past experience in dealing with the accused. Some of them said they lose trust in the accused and his leadership because of his dishonest attitudes ... "
“The report stated these offences were not out of character and that he is known to be and was during the process with probation deceitful.
“He has relevant matters known against him.
“He poses a risk of re-offending is the finding of the report,” said the judge.