By Linny Folau

A fraudulent online car dealer, Filimone To‘aho (43), was sentenced to seven years imprisonment with the final year suspended for eight charges of receiving a total of $243,486 by false pretences in a scam on Facebook. His victims, six women and two men, included a prince.

The defendant had a previous conviction related to his failed company, Super Cheap.

In the current offending, To‘aho advertised on Facebook, which falsely led his victims to believe they were purchasing imported vehicles and boat engines.

Acting Lord Chief Justice Tupou sentenced him on 1 March, at the Supreme Court in Nuku’alofa, after he was found guilty by a a jury on eight counts of receiving money by false pretences, in a trial in October last year.

Complainant Siale Filimone of Ha'ateiho, $18,700

The court heard that the first complainant, Siale Filimone of Ha'ateiho, on 12 March 2020 saw an advertisement for a 3-tonne Isuzu truck for $25,000 on Facebook. The defendant was behind the advertisement. When the victim enquired about the truck, she was required to make a deposit of $6,000 and for the balance to be paid by installments.

The defendant told Ms. Filimone, the vehicle was on its way and he would have it 30 days from 16 March, 2020. That did not happen. The defendant then told her that the shipping was delayed due to covid-19.

After the complainant was instructed to make the payments to the bank, she paid a total sum of $18,700 into the defendant's bank account and the defendant's brother's account number. At that point, he stopped her from making more payments until the vehicle arrived in Tonga. The vehicle never arrived and she did not receive her money back from the defendant.

Complainant 'Ana Tautua'a of Vava'u $13,903

The second complainant, 'Ana Tautua'a of Vava'u saw an advertisement for a black 2015 Toyota Harrier for $16,900 on the Fobby's Print Tonga Facebook page managed by the defendant. Around April 2020 she expressed her interest in the vehicle. She was told she would get her vehicle 28 days from the date of the ad as it was to be her mother's gift for mother's day.

The complainant paid the defendant a total sum of $13,903. The vehicle did not arrive as promised. In June, the defendant explained the delay was due to covid-19. But in October, the vehicle still had not arrived and the defendant told her that it was stuck at a wharf but if she paid a further deposit, she would get the upgraded version of that same vehicle. The deposit was paid but no upgraded vehicle arrived.

Then in April, 2022, the defendant told Ms. Tautua'a there was no vehicle.

In January 2023 she saw the defendant posting ads for vehicles again on Facebook and contacted him. The defendant told her to withdraw her present claim against him and they would settle. She did not agree nor did she receive her vehicle or her money back from the defendant.

Complainant Lavili Maka of Ma'ufanga $32,400

The defendant continued his scam. The third complainant, Lavili Maka of Ma'ufanga, on 7 July 2020, ordered two vehicles from the defendant. They were a Toyota Prado and Toyota Hiace and the cost was $30,000, which would arrive in Tonga on 28 October, 2020. A deposit was required and the remaining payment to be paid by installment.

Between July and October 2020, she paid the defendant a total of $12,400 by way of cash and bank cheque. On 28 October, 2020, the defendant informed her that there was a delay with the shipment carrying the two vehicles but to continue with the payments. Then, the complainant saw another ad for a Toyota Hilux for $29,000 payment for which was due on the same day.

On 4 December 2020, she paid the defendant $20,000 in cash for the third vehicle and told him to take the remaining $9,000 from the $12,400 she deposited for the first two vehicles.

When the vehicles did not arrive, she felt something was off and contacted the defendant to return the money paid to him. She received $1,500 back from the defendant but no vehicle.

Complainant Melasisi ‘lsama'u of Ha'ateiho $17,500

The fourth complainant was Melasisi ‘lsama'u of Ha'ateiho. In September 2020, he saw a Toyota Dyna truck for sale on Fobby's Print Tonga's Facebook page for $17,500. It provided that while customers waited for the arrival of their vehicle, they would be provided with another for their use. Mr. 'Isama'u was given a truck to use, which the defendant claimed he bought. Mr. 'Isama'u ended up buying that vehicle for $4,000 from the owners of the truck but he did not receive the vehicle he paid monies to the defendant for, but spite of that, it was not his wish to sue him.

Complainant Heleni Toli of Vaini $116,000

The A/LCJ stated that the fifth complainant was Heleni Toli of Vaini, the manager of Sunshine Rentals, who was looking for a Toyota Hilux to purchase, as they were popular with Tongan visitors to Tonga. She saw an ad on Fobby's Print Tonga Facebook and contacted the page. She was told the person responsible was in Japan but there was an agent and was provided with a phone number, which she contacted and it was Mrs. Maka, who told her that the company was not a scam.

Mrs. Toli being satisfied contacted the Facebook page and enquired why the Toyota Hilux was so cheap. She was informed the company was clearing out old stock to make room for their new stock. She was set on buying only one truck. Then she was messaged with an offer of another vehicle due for payment on the same date. That very afternoon, a post on the page thanked companies and well-known persons for their business. She decided to pay for two more trucks and understood it would arrive in December, 2020. She paid a total of $116,000.

Further contact with the defendant was not possible. But Fobby's Print Tonga's Facebook page shifted the blame to Japan. When the comlplainant contacted Japan, a Mr. Wahad spoke with her and from that communication, she realized the transfer slips of funds she was given by the defendant or his agents were fraudulent.

Complainant Lesieli Tu'ivai of Fua'amotu $15,000

The sixth complainant was Lesieli Tu'ivai of Fua'amotu. In November 2020, the complainant contacted the Fobby's Print Tonga Facebook page about a Toyota Hilux they were advertising for $35,000. The defendant told her and her brother that the vehicle would arrive in the last week of December. Ms. Tu'ivai and her brother paid a total of $15,000 as instructed by the defendant.

When the vehicle failed to arrive, Ms.Tu’ivai was told that the vehicle was in Britain and they were trying to engage another company to ship it to Japan. Then, their calls went unanswered. She went to find the defendant at Niutoua, only to be informed that he had been taken into custody. The defendant accepted Ms.Tu'ivai's evidence.

Complainant Lu'isa Kolo of Pahu $17,500

The seventh complainant was Lu'isa Kolo of Pahu. In December 2020 she saw, on the same Facebook page, a Nissan Murano for sale at $17,500 and contacted them immediately. She spoke with the defendant and was told to make the relevant payment at their agent, lawyer Siosifa Tu'utafaiva's office to one, Siosi'ana Vakasiuola.

On 6 January 2021, she went to Mr. Tu'utafaiva's office where she was handed a contract from Fobby's Print Tonga. She signed the contract with Siosi'ana Vakasiuola and paid the $17,500 in cash to Ms. Vakasiuola. She was told the vehicle would arrive in Tonga on 9 March, 2021. When it failed to arrive, she was told the money had been sent and to be patient. Then the defendant later informed her that she was not to contact him until this proceeding was finalized. She did not get her vehicle or a refund of her money from the defendant.

Complainant Prince Tu'ipelehake $12,480

The eighth was complainant was Prince Tu'ipelehake. On 26 April 2021, he agreed to purchase four boat engines from the defendant for $41,600. The defendant asked him to deposit 30% of the price and he paid $12,480 to a Ramona 'Otutoa who paid the defendant $9,680 and put the rest towards the deposit for the engines. The engines failed to arrive and the complainant demanded his money back. The defendant had paid $9,800 back to Prince Tu'ipelehake, stated the A/LCJ.

In total the defendant obtained a sum of $243,486, from which he reimbursed $11,300. The balance of $232,186 remained outstanding.

Victim impact

The Crown submitted the aggravating features of the offending were: the offending being carried out during almost a year from June 2020 to April 2021 against eight different victims; the amount falsely obtained and that only a small portion recovered. He was also advertising of motor vehicles for sale pursuing more victims in breach of his bail conditions; his dishonesty and the financial loss, mental and emotional impact caused to the victims.

Meanwhile, from the victims’ impact reports, the complainants all suffered financial loss, some more than others. It stated they all experienced anxiety, mental and emotional stress from not receiving the vehicles or re-imbursement of funds paid and the false promises they were fed by the defendant.

Further, the first complainant could not provide the vehicle for her family in 'Eua to help them get to and from their plantation. The second complainant could not gift her mother the vehicle for mother's day. The third complainant lost her retirement money, which she used for the purchase of the vehicle. It was to be rented by guests staying at her guesthouse. She was reimbursed only $1,500 out of the total funds she paid the defendant. The fifth complainant experienced stress and financial loss to her car rental and the eighth complainant was unable to continue his sea cucumber business, during its season and lost potential income.

Pre-sentencing report

The Defendant, commonly known as 'Mone' come from Vava'u. He is the second of five siblings. His family currently reside at Tokomololo and abroad. He and his wife reside with her family at Niutoua.

The Defendant attended Tonga High School, Tonga College and Tupou College. He graduated from the Tonga Institute of Education (TIOE) with a Diploma in Teaching. He was a teacher from 2004 to 2007.

He was later employed as a Corporate Case Manager at Digicel for 5 years. In 2013, he started Super Cheap Tonga, a business that imported vehicles from Japan to sell locally.

“Like the present case, he required customers to pay the full price before the vehicle would arrive. And like the present case, customers never received their vehicles. That business went under. To pay off the debt, his wife moved to the US to find work. She never returned,” stated the A/LCJ.

He had since remarried and adopted a child. He is unemployed.

The probation office also reported that despite the defendant expressing that he was remorseful and regretted his actions, he blamed the car dealership.

She placed the defendant on the scale of 'very high risk' to the community. He was not a first time offender and pleaded not guilty.

Sentencing

The A/LCJ having considered the maximum statutory penalty, the sentencing principles of punishment, deterrence, the public's interest to denounce such offending, the financial loss, emotional and mental distress suffered by the complainants, submissions by counsel, authorities relied upon and the principles mentioned and the need to protect the community from these kind of criminal activities, she adopted the Crown’s sentencing formulation.

“In this instant, a total of $243,486 is involved. That is a substantive amount of money. The defendant's fraudulent acts continued over a period of 10 months involving the eight complainants. He obtained the complainants' trust and money by falsely advertising vehicles and engaged in making false promises of importing their vehicles on their behalf.

“When the defendant told the complainants the vehicles were on the way, he was being economical with the truth as well as the excuses that followed including the delay to covid-19, one vehicle being in Britain to be shipped to Japan first. He gave the complainants' arrival dates. Not one of the complainants' vehicles arrived on time or at all.

“The defendant put on the facade until he ran out of excuses and refused to respond to or answer calls from the complainants. The final correspondence from him was not to contact until this proceeding was finalized and/or to withdraw the proceeding and explore settlement. Ultimately, the jury did not believe him. Even after conviction, the defendant maintained his innocence and claim he was scammed yet he proposes to pay the 8 complainants back. No evidence was produced to show he had taken any steps against the companies he claims to have been scammed by, to recover the complainants' money he claimed to have paid them.”

Blatant dishonesty

The A/LCJ stated that his conduct demonstrated a blatant dishonesty with no regard to the propriety of the transactions or their consequences and the need for personal and general deterrence were significant considerations in determining the suitability of a full time custodial sentence.

For those reasons, she agreed that a custodial sentence was appropriate and that the sentences imposed for counts 1-8 should be made cumulative to count 5. For the restitution of most of the payment made by the complainant and a small portion the third complainant's payment, she deduced two months from count 3, resulting in a final sentence of 13 months and 6 months from count 8 resulting in a sentence of imprisonment of 6 months.

The final aggregate sentence was nine and a half years' imprisonment.

The judge said the defendant was not young or a first time offender.

“Further, despite being on bail on the condition not to engage in advertising vehicles amongst others, he proceeded to breach that condition by continuing to advertise vehicles for sale,” stated the A/LCJ.

"I find the contention that he did not hear the conditions stated in court due to a hearing problem preposterous. Those same conditions were printed clearly on the bail form he signed on 5 April 2022. As such, the defendant has demonstrated his inability to respond to a deterrent and is unlikely to take the opportunity of a suspended sentence to rehabilitate himself. There is no diminution of culpability here and is described by the probation report as a person of 'very high risk' to the community. I agree."

The defendant was then sentenced to seven-years imprisonment with the final 12-months suspended for two-years on conditions.

Failure to comply with the conditions may result in the suspension being rescinded, in which case, the defendant will be required to serve the balance of his prison term. The defendant is now serving six-years in prison backdated to 27 October, 2023, when he was detained in police custody.