By Linny Folau

‘Eva ‘Ailolo (aka ‘Eva ‘i Pomana Tau’ese) is serving nine months imprisonment for embezzlement of $72,857 pa’anga from Tonga Development Bank accounts, while working as a teller in Vava’u.

Acting Justice Langi sentenced her last month to one year and nine months imprisonment. The final 12 months was suspended for two years on conditions, at the Supreme Court Neiafu Registry, after the defendant was found guilty by a jury.

The offence was committed between December 2021 and November 2022, while the defendant was a bank teller at the bank’s Vava'u branch. The court was told that on November 2022, TDB Head Office in Nuku'alofa received an enquiry from Duran Ormond, a manager of the Church of Jesus Christ of Latter-day Saints based in Utah, USA. The enquiry was in relation to cash deposits made to LDS Church account, which had not been posted to the account.

The unaccounted amount was $3,765 deposited on 28 December 2021, $1,580.40 on 5 September 2022, $4,260 on 3 October 2022, and $345 on 28 October 2022 at the TDB Vava'u Branch. These deposits were cash from Sunday church tithe offerings collects by the LDS Church Wards of Ha'alaufuli, Ta'anea and Holeva on the island.

The Acting judge stated that the TDB head office investigated the matter and realised they could not locate their copies of the receipts for the said deposits. TDB sought and obtained the LDS Church copies of those receipts. TDB Vava'u supervisors Kolokesa Paunga and Sione Ma confirmed that the signature on those receipts belonged to the defendant. TDB protocol is for bank tellers to remain after the bank closes to compare the cash they received in deposits with their copy of the receipts.

Kolokesa confronted the defendant in relation to the missing funds and she was asked to provide a written statement to explain the irregularities. On 23 November 2022 the defendant wrote a letter to her supervisors where she apologised the for unaccounted cash and said she realised the cash shortage of $2,000 during her afternoon check on 5 September 2022 so she used the cash deposits of September 2022 and her own money to cover the shortage. For the cash shortage of $4,260 on 3 October 2022, she had put it in her cabinet and forgot to actually post it in the LDS Church account and she had already done it after the church irregularities was discovered.

More unaccounted cash

The defendant was then instructed to take leave pending an internal investigation. An internal auditor from TDB Office, Samiu Fifita was sent to Vava'u to investigate the matter further. Samiu realised, when he began his work, that the amount of unaccounted cash was more than they initially thought, he also noticed that the defendant's work cabinet was still locked and by then she was on leave and had the key with her.

A staff member was instructed to force the cabinet open in which they discovered various receipts for cash deposits in relation to numerous accounts, and there was no cash found in the cabinet. Samiu located the defendant and bought her to the bank to see the receipts that were found in her cabinet.

On 3 December 2022, the defendant wrote another letter to her supervisors to apologise and to inform them that she wrongfully kept the receipts for the cash deposits she received and she did not post the funds into these accounts. She kept this from everyone because she was scared but never attempted to destroy the receipts.

On 29 December 2022, Samiu submitted a report of his findings from the internal investigation.

Samiu highlighted the missing cash with the respective account effected based on the receipts found in the defendant's cabinet. Only $9,950.40 of the total $ 72,857.60 unaccounted cash has been settled and returned to the respective accounts. A total of $4, 110 was settled by TDB and a total of $5,840.40 was settled by the defendant.

A remaining total of $62,907.20 has not been settled and returned to the respective accounts. TDB has undertaken to redeposit that remaining account. 

On 5 January 2023, the CEO of TDB, 'Emeline Tuita, lodged a formal complaint with the Police and submitted their findings from their internal investigation. The defendant did not cooperate with Police and exercised her right to remain silent. She does not have any previous convictions.

Large amount embezzled

The Crown submitted the aggravating factors in this case: the amount embezzled was significant ($72,857.60), the defendant was in a position of trust, and breached the trust of her employer (TDB). She was the teller, and she was the one who received the money that is the subject of this case and she had not repaid any of the aforesaid amount to the bank or customers.

In addition, the defendant's actions were intentional and planned out supported by the fact that taken amount is substantial and it started from 28 December 2021 to 18 November 2022. It also submitted, the embezzlements were planned out causing these transactions to remain unnoticed until the complaint from the LDS church that instigated the internal audit. For the audit's investigation, the defendant's embezzlement was discovered, she showed no remorse for her action, which was indicated by her not guilty plea and her allegation that her letters to TDB on 30 November 2023 and 2 December 2023 were coerced by Kolokesa.

“Furthermore, she admitted during her cross-examination that some contents of her letter of 2 December 2023 are false. She also made some serious unjustified allegations against the TDB, such as, it was Kolokesa who authorised her to make withdrawals and holding of deposits that were the subject of this trial. In addition, she claimes that the TDB system is corrupted and only the employees are aware of it. Furthermore, she claims that about 100k to a million is unaccounted for at the TDB in Vava'u.

“The Crown put forth that her only mitigating factors was her lack of previous conviction, her limited cooperation with the Internal Auditor and her willingness to give Samiu Fifita the folder that contained the vouchers.“

In her pre-sentence report, the defendant was an employee of TDB in 2021, in about a year she was dismissed in relation to the charge of this offence. She accepted the jury's decision in finding her guilty of the offence, but she remained in her position of being not guilty.

“On interviews with several community leaders, they all agree that the offence is out of character for the defendant. She has never showed any signs or manner of behavioural problems that would indicate and raise suspicion for the huge amount of money in this offence. Despite the challenges and the struggles since the beginning of the trial, the defendant remained firm in her stance of being not guilty in this offending. She also accepted whatever sentence the court may impose and was grateful to receive the support of her family and community.

“In assessment, she was at "low-risk" for re-offending given her previous good character and the support from her family. She is a young adult with immature thoughts lacking the skills and the knowledge to make good decisions and showed strong prospect of effective rehabilitation, stated the report, which recommended that she be given a partly suspended sentence, on a number of conditions. References were also submitted on her behalf including a letter from stake president of the Vava'u North Stake and Holonga's town officer and others.”

Jail

The Acting judge stated that embezzlement is a serious crime, as it involves a breach of trust and for that reason is often difficult to detect, and without trust the commercial community cannot function effectively as employers must be able to trust their employees and unless businesses can function and flourish there will be few employment and commercial opportunities for the people of Tonga (Wall v R [2001] Tonga LR 238 and R v Bloomfield [2013] Tonga LR 165).

“For this reason the Courts have made it clear that in cases of embezzlement a penalty which deters such offending in the offender and in others is required. The courts take a dim view of offending of this kind. It is the case that the defendant deliberately breached the trust of his employer on several occasions. The offending would not have come to light if the representative from the Mormon Church had not followed up the deposit made to the church account. It was through that complaint and consequent investigation that the bank realized that the accused had received many more deposits which had been receipted but not posted.

“In my view there are limited mitigating factors in favour of the accused other than that she is remorseful and has no previous convictions and has otherwise been of good character. However, she did not cooperate with the police and pleaded not guilty to the charge."

The maximum penalty for the offences of embezzlement is seven years imprisonment.

“Looking at Ms. 'Ailolo's offending as a whole and particularly having regard to the amount of money she embezzled, the number of times she did it, the period over which they occurred and the fact that she was in a position of trust, I agree with the Crown submissions that a sentence of imprisonment should be imposed. I also agree that the appropriate starting point for the purposes of sentence is two years and six months imprisonment as recommended by the Crown. I give her credit for her lack of previous convictions and allow her a discount of nine,” the Acting  judge stated.

The Acting judge considered the principles in Mo'unga and noted that a suspended sentence may be appropriate where an offender is young and of previous good character is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities .

"These circumstances are applicable in this case. I believe that this offending was entirely out of character for Ms.'Ailolo and that she is a young woman who has a great deal to offer her community. For those reasons a partial suspension of her sentence is warranted but subject to conditions."

The defendant was sentenced to one year and nine months imprisonment, with the final 12 months suspended for two years on conditions. She is now serving nine months in prison.