Tuita v Rex [1999] TOCA 13; CA 15 1998 & 02 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

Appeal No. CA 15/98 & 2/99
CR. 122/98

BETWEEN

TONGA TOUTAI TUITA

First Appellant.

SAMIUELA MAFI

Second Appellant

-V-

REX

Respondent

AND

BETWEEN

REX

Appellant

-V-

TONGA TOUTAI TUITA

First Respondent

SAMIUELA MAFI

Second Respondent

Coram:
Burchett J Tompkins J Beaumont J

Counsel:
Tonga Toutai Tuita and Samiuela Mafi in person.
John Cauchi for the Crown.

Date: Hearing: 15 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

Because there are two appeals, and to avoid confusion between appellant and respondent, we refer to the parties by name.

Tuita was charged on four counts:

1. Growing 743 Indian hemp plants in or about the month of November 1996 at his tax allotment in Fungamisi Neiafu Vava'u, contrary to s 36(a) of the Drugs and Poisons Act (Cap 79) ("the Act"), and

2. Having in his possession on or about 29 November 1996 at the same tax allotment approximately 453 Indian hemp seeds, contrary to s 36(b) of the Act, and

3. Having in his possession on or about 29 November 1996 at his tax allotment approximately 743 Indian hemp plants, contrary to s 36(b) of the Act, and

4. Having in his possession on or about 29 November 1996 at his tax allotment live ammunition without a licence, contrary to s 4(2) of the Act.

Mafi was charged on two counts:

1. Growing 743 Indian hemp plants in or about the month of November 1996 at the tax allotment of Tonga Tuita in Fungamisi Neiafu Vava'u, contrary to s 36(a) of the Act, and

2. Having in his possession on or about 29 November 1996 at the tax allotment of Tonga Tuita approximately 743 Indian hemp plants, contrary to s 36(b) of the Act.

Following a trial before Finnigan J, Acting Chief Justice, both were, on 17 November 1998, found guilty on all counts. Tuita was sentenced to four years imprisonment on each of the first three counts. On the fourth count relating to the ammunition he was convicted and discharged. Mafi was sentenced to four years imprisonment on both counts. All sentences are concurrent. The Acting Chief Justice ordered that in both cases the last year of the sentences be suspended for one year.

Tuita and Mafi have appealed against their convictions. They have also appealed against their sentences on the grounds that they are excessive. The Crown has applied for leave to appeal against all sentences, except that relating to the ammunition charge, on the grounds that the sentences are inadequate.

Mafi had earlier pleaded guilty to possession of Indian hemp seed, for which he was sentenced to 15 months imprisonment. The sentences imposed were concurrent with that sentence.

The findings of the Acting Chief Justice

The Crown called four police officers, the Assistant Land Registrar to prove ownership of the allotment, and a medical scientist to prove the identity of the plant material.

The police evidence concerned an operation conducted on 29 November 1996 when a body of police officers went to the tax allotment owned by Tuita at Fungamisi Neiafu Vava'u to execute a search warrant. They found and produced in Court a large number of items. Included amongst them were some 453 seeds and about 743 or 747 plants. The Acting Chief Justice found that the circumstances in which those plants were being cultivated, and the presence of a device capable of being used for smoking, raised a strong suspicion that some person or persons were at that: time engaged in cultivating a commercial crop of Indian hemp. The plants were growing in four distinct and separate blocks. A letter which was found with the seeds was addressed on the envelope to "Tonga and Sam", a clear reference to Tuita and Mafi.

Sergeant Finau conducted two interviews with Tuita, Although he acknowledged that the tax allotment was his, and that he and Mafi had lived there for about three weeks, he did not say who had planted or cultivated the plants. He did, however, say that he recognised the seeds, which had been found with a letter, as marijuana seeds. The letter and the seeds had arrived for Mafi within the three weeks they had been living there together.

Constable Falakisini, together with Sergeant Finau, interviewed Mafi. He said the seeds had been sent to him from Tonga by a man he knew. He had thrown the seeds out because he knew they were dangerous to process. This officer formally interviewed Mafi at the police station. He said that the plants on the tax allotment had been grown from Indian hemp seeds that he had brought with him, and from some that had been brought by another man. He described how the seeds had been planted. Those found at the side of the house, where he threw them, were the ones left over. The purpose of growing was "for smoking by us, and to sell them out".

There was evidence from Sergeant Finau that he took the plants to be examined by Dr Pakalani at a hospital. Dr Pakalani described a chemical test that he carried out on the samples which gave a positive result for the presence of marijuana. He also subjected the samples to microscopic examination which again led him to the conclusion that the samples contained marijuana.

At the close of the Crown case, Mr Vaipulu, counsel for Tuita and Mafi, submitted there was no case to answer. That submission was rejected. He then elected to call no evidence.

After referring to the submissions made by Mr Vaipulu, the Acting Chief Justice set out his findings. In respect of the charges against Tuita, he found that he was the person growing the little plants on his allotment, that he was aware of and in possession of the seeds that were found, and that Tuita, as owner and user of the tax allotment where; the plants were found, was aware of their presence and was in possession of them.

In respect of Mafi, the Acting Chief Justice concluded that both charges were proved for the same reasons as those he had expressed concerning the charges against Tuita.

Finally he found that the plants and the seeds were proved beyond reasonable doubt to be Indian hemp as defined in s 33(2) of the Act. He reached this conclusion on the chemical tests, not on the microscopic examination which he rejected.

The Acting Chief Justice's judgment does not make any reference to the count of possession of ammunition, but Tuita's conviction on that charge was not challenged.

The appeals against conviction

Tuita and Mafi addressed this Court at length .Much of what they said were not submissions relating to the evidence given, and the findings of the Acting Chief Justice, in the Supreme Court. Rather it was evidence that they may have been able to give, had they elected to give evidence at trial. The grounds of appeal set out in the notice of appeal related solely to the testing of the plants and seeds by Dr Pakalani, and to whether the plant and seeds he tested had been sufficiently identified as the same as those taken from Tuita's allotment. The submissions they made to this Court did not address those grounds.

Tuita submitted that it was not appropriate for the same counsel to represent him and Mafi at the trial. He said it was wrong that the lawyer appearing for him should be trying to rescue Mafi as well. This issue had not been raised at the trial.

He accepted that the judgment was based on the evidence called by the Crown. But his lawyer, he said, did not give him the chance to give evidence. He further submitted that the police were wrong to disregard statements he had made about going to another allotment.

Mafi acknowledged that he had pleaded guilty to possession of marijuana seeds because he knew the person who had sent him the seeds. Much of what he said to this Court was directed to a challenge to the admissibility of the statement that he had made to the police, that amounted to admissions of the counts to which he had pleaded not guilty. He claimed that he was threatened with physical violence and that the police used obscene language. Because he was afraid, he said he would do what the police wanted him to do.

None of these allegations was raised in the trial. There was no application for a voire dire. Counsel appearing for Mafi did not in any way at the trial challenge the admissibility of the statements Mafi had made to the police. This Court can only act on the assumption that Mafi was adequately advised concerning his rights, and that, if his counsel were informed of what Mafi has said to this Court about the statements, a decision was taken not to mount a challenge to them. Such a challenge cannot be made for the first time at the appeal hearing.

We have carefully considered the findings made by the Acting Chief Justice on the evidence put before him, and the conclusions that he reached on that evidence. We are unable to find any error of fact or of law. The conclusions that he reached were properly based on the evidence he heard and the exhibits produced. We do not find, on the submissions put before this Court at the hearing of the appeal, any basis for reversing any of the findings made by the Acting Chief Justice. In particular, we are satisfied that the grounds set out in the notice of appeal relating to the examination of the plants and seeds by Dr Pakalani are not made out.

The appeals against the convictions are dismissed.

The appeals against sentence

In their brief submissions to this court on sentence, Tuita and Mafi each referred to other sentences that they said had been passed that indicated that the sentences imposed on them were not consistent with these other sentences. We do not consider that the sentences imposed on them, together with the orders for suspension, can in any way be said to be excessive or inappropriate. Their appeals against sentence are dismissed.

Mr Cauchi, in his submissions that the sentences together with the suspensions were too low, invited this court to give some guidelines on appropriate sentences for growing marijuana. He referred to the decision of Hill J in Anders v Police Department [1974-80] TLR 60. The appellant had been charged with growing and processing marijuana. He was fined $100.00 on the growing charge. On the charge of possession he was sentenced to six months imprisonment. It was against that sentence that he appealed to the Supreme Court, which dismissed the appeal. The Judge regarded the sentence as extremely lenient.

He went on to comment on the appropriate sentence for growing marijuana. He, in our view rightly, held that growing marijuana in Tonga can be a very serious offence, because the population is spread over many islands and it is easy for persons to persuade locals to grow it. We add that this factor also makes it extremely difficult to locate the areas where marijuana is being grown, and to obtain convictions for doing so. Hill J concluded that anybody who encouraged or promoted the growing of marijuana may expect to receive a minimum sentence of three years, and in addition to be at risk of having confiscated any vessel or vehicle used in the commission of the offence.

We agree with this approach and the reasons for it. In our view, a conviction for growing any significant amount of marijuana should carry a sentence within the range of three to five years imprisonment. That sentence would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation, along the lines of the judgment of this Court in R v Misinale CA13/99, judgment 23 July 1999. Further, we consider that similar sentences should be imposed on persons convicted of possession for supply of amounts of marijuana that indicate a commercial scale operation.

There is another matter. Mr Cauchi has submitted, and we agree, that the present legislation for the control of prohibited drugs is out of date. It does not contain detailed provisions relating to different types of controlled drugs and different penalties for possession or dealing in them. Nor does it contain, for example, provisions altering the onus of proof on charges of possession for supply if a person is found in possession of a nominated quantity of a prohibited drug. Such provisions are common in modern drug legislation in other jurisdictions. We have been informed that the misuse of drugs, particularly the more serious drugs, has not been a major feature in Tonga. But this may well not continue to be so. Should there be any escalation in the abuse of prohibited drugs in Tonga, it is vital that the courts should have an effective armoury with which to counter any such escalation. We recommend that the Legislature should give active and prompt consideration to enacting drug legislation in line with that in force in other jurisdictions, such as in Australia and New Zealand with which we are familiar.

We now turn to the sentences imposed in the present case. We have regard to the following factors. The volume of plants and seeds was large. The conclusion is inescapable that Tuita and Mafi were engaged in a commercial scale operation likely to produce, if it were successful, a volume of marijuana far beyond what would reasonably be required for their own use. A firm deterrent sentence is essential to drive home to persons minded to become engaged in an operation of this kind, that it is not worth the risk. Tuita committed these offences while he was serving a suspended sentences for house breaking. We are not aware that either appellant have any other convictions.

This is a Crown appeal. We approach it on the basis that we set out in Misinale. Taking into accounts all of these factors, the sentences of four years imprisonment for an operation on this scale may well be at the lower end of the appropriate sentencing scale. But we are not satisfied that either sentence is so inadequate that we would be justified in increasing it.

We turn to consider the suspensions of the sentences. We discussed the principles to apply in Misinale. There is no pre-sentence report. The Acting Chief Justice had the advantage of hearing what he described as all the good things their then counsel said on their behalf. These submissions caused him to refer to them both as good young men and good citizens of Tonga, apart from this offending. He gave no reasons for suspending the last year of the sentences, other than that they had not been in prison before, which in itself would not be an adequate reason. We are prepared to accept that there may be good reasons relating to their rehabilitation to justify a suspension of the sentence for part of the term. The suspension for twelve months of the last twelve months of the sentence has not been shown to be excessive.

The application by the Crown for leave to appeal against the sentences is dismissed.

Burchett J, Tompkins J, Beaumont, J.