Vea v Rex [2004] TOCA 7; CA 04 2004 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

ACTION NO. AC. 4/04

BETWEEN:

‘UNALOTO VEA
Appellant

AND:

REX
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Mr. Teisina Fifita for the Appellant
Mr. Kefu for the Respondent

Date of Hearing: 19 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF COURT OF APPEAL

[1] This is an application for leave to appeal against conviction and sentence. There was no opposition to the application for leave and it is granted.

[2] The appellant pleaded guilty to two charges of possession of Indian hemp and one charge of planting and growing Indian hemp. The first charge of possession arose as a result of a search on 27 September 2001 by the police of a room occupied by the appellant. The police discovered hemp leaves in a book, 20 branches of Indian hemp, 1 plastic bag containing 9 Indian hemp seeds, 1 plastic bag containing 116 Indian hemp seeds and 1 Indian hemp cigarette. As a result of that discovery the accused and another man were charged and both were released on bail awaiting trial. The accused at that stage denied the offence.

[3] On 16^th October 2001 the police executed a search warrant on a vacant allotment. The accused was not present when the police arrived but he turned up later and showed the police the location of eight Indian hemp plants and some dried branches and leaves. Two of the plants were about 2 to 4 feet high. The police also discovered fertilizer and plastic bowls, which they suspected were going to be used to grow Indian hemp plants. The remaining two charges arise from this discovery, when the accused was again arrested. He admitted the offences to the police and cooperated with the police in their investigations. He has no previous convictions.

[4] Despite the fact that Mr. Vea admitted his offending, he entered pleas of not guilty to the charges and a trial date was set. He was remanded on bail. He failed to turn up on the date set for the trial, a warrant was issued, he was arrested in late February 2004 and a further trial date was set for the 24^th March. The appellant spent about one month in prison prior to the 24^th March. When the appellant appeared before the Court on that date, he changed his plea to guilty in respect of all counts. He was convicted and remanded for sentence to 14^th April, 2004. He was then sentenced as follows:

File 265/01: 9 months for the first possession charge.

File 272/01: 2 years for the second possession charge.

: 3 years for growing marijuana

[5] The last two sentences were to be concurrent but cumulative on the first making a total of 3 years 9 months.

[6] The Judge ordered that the appellant was to serve 2 years and the balance was suspended for 2 years from the date of release.

Appeal against conviction

[7] Mr Fifita submitted in support of the appeal against conviction that the appellant had been misled into pleading guilty by advice he had received from a police officer to the effect that if he did plead guilty he would not receive a custodial sentence. This proposition was raised before the sentencing Judge after the plea of guilty had been entered. The Judge directed the Crown to make enquiries concerning this allegation. Crown counsel did so and subsequently reported to the Court that the police officer concerned denied that any such representation had been made to the appellant.

[8] There are indications on the file that suggest that if there were any statement made by the police officer, it was not as unequivocal as was suggested to us in submissions. The pre-sentence report records that the appellant expected to go to prison as a result of his offending. That statement must have been made to the Probation Officer prior to the appellant being sentenced. Indeed the Judge records in his sentencing notes that at the time the appellant pleaded guilty he was told that he would be sentenced to imprisonment. The appellant therefore had plenty of warning that this was the likely penalty.

[9] It is significant that at no stage subsequent to his plea of guilty has the appellant denied the offending. He filed an affidavit in support of an application for leave to appeal out of time. There is no denial in that affidavit of the offending. Additionally of course, the statement of facts records that the appellant admitted the offending to the police at the time of his second arrest. There are no grounds made out to support the appeal against conviction and it is dismissed.

Appeal against sentence

[10] As to the appeal against sentence Mr. Fifita submitted that the sentence was excessive, again referring to the alleged representation made by the police officer. At the time of the commission of these offences the maximum sentence was ten years imprisonment. The penalty has since been increased very substantially to a maximum of 25 years and/or a large fine. Mr. Kefu advised the Court that the common sentence for a first offender is a suspended sentence of imprisonment. He is aware, however, of terms of three to six months being imposed on first offenders.

[11] It will be noted from the outline of facts that the second pair of offences relates to a date about three weeks after the first. These offences concerned hemp plants which obviously must already have been growing at the time of the first search. This is not a case therefore of renewed offending after the first arrest. Nevertheless, the appellant did not after his first arrest take the opportunity to destroy the plants which resulted in his second arrest, and so the case may be distinguished to some degree from the generality of cases involving first offenders. The other matter relied upon by the Crown as an aggravating factor in this case was the significant number of seeds found. The Crown says that this indicates an intention to operate on a commercial scale.

[12] As to mitigating factors the appellants plea of guilty came after two trial dates had been set. Little credit can therefore be given to him in that respect despite his original admission of offending. He is, however, entitled to substantial credit for the assistance that he gave to the police. And the fact he is a first offender must be taken into account. There is also his expression of remorse together with his attempts at rehabilitation. All these matters were referred to by the sentencing Judge and the only question is whether sufficient allowance was made for them. One further matter should be mentioned. No express reference was made by the Judge to the periods spent in custody prior to sentencing, but that too should be taken into account in the sentence imposed.

[13] It may be helpful to the Courts in this jurisdiction, if we were to give some further guidance as to the appropriate approach to sentencing in drug related cases.

[14] The decision of the Court of Appeal of New Zealand in R v Terewi [1999] NZCA 92; [1999] 3 NZ LR 62 provides guidance, although this Court immediately acknowledges that consideration must be given to the different social conditions in Tonga and to the different maximum penalties that apply here compared with those which apply in New Zealand. Having said that we note the following matters referred to by Court of Appeal in the above case.

[15] The Court in Terewi identified three categories of offending. The first related to the growing of marijuana or as it is called here Indian hemp in small quantities for personal use. The Court said that in such cases a non custodial sentence was generally appropriate. A similar approach is taken in relation to charges of possession for personal use. In a case of growing for small scale commercial purposes, the Court has said that a starting point of between two and four years may be appropriate and for large scale growing for commercial purposes, a sentence in excess of four years is appropriate. A similar scale of sentencing applies to possession of cannabis. The New Zealand Court of Appeal has also made it clear on numerous occasions that personal circumstances are generally irrelevant when sentencing for drug offending.

[16] Of more direct relevance in this jurisdiction is the decision of the Tonga Court of Appeal in Tuita v R [1999] Tonga LR 152. That was an appeal by the Crown against sentences of four years imprisonment imposed on Mr Tuita and another offender for growing and having possession of Indian Hemp. In that case the Court said at page 156:

“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 (CA 13/99, 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”.

[17] The Court went on to comment that the present legislation for the control of prohibited drugs is out of date, but noted that the legislation did not contain detailed provisions relating to different types of controlled drugs and different penalties for possession or dealing in them. Since then of course the legislation has been replaced but there is still no distinction made between marijuana and more dangerous drugs such as is made in Australia and New Zealand. The Courts will need therefore to ensure that in sentencing for growing, possession or supply of Indian Hemp account is taken of the need to distinguish between that drug and even more dangerous drugs such as concentrated forms of hemp (hashish or resin), heroin, cocaine and various amphetamines.

[18] We are also aware of the reported sentencing remarks made by Ward CJ in June 2001 with which we agree. The Chief Justice made it clear that possession of any drug including cannabis in a small quantity for personal use will in future result in a sentence of imprisonment although that sentence will be suspended for a first offender. He also said that in every case where there is evidence of supply to others the sentence will inevitably be a longer term of imprisonment and suspension of the sentence in any such case would not be appropriate. He said that any one who sells drugs can expect to go prison for a very substantial length of time.

[19] Against the background of those decisions and the statement of the Chief Justice we then consider the penalty imposed in this case. We have already noted that the sentencing Judge took various matters into account when imposing sentence. He did not however taken to account the time spent in prison prior to sentence. We also think that it was inappropriate to impose a cumulative sentence in this case. There was no new offending. In fact the situation was that the totality of offending was discovered over a period of about a month.

[20] It is clear from the quantity of hemp found that this was a small scale, commercial operation. That being so, and bearing in mind that the appellant is a first offender, we think that the appropriate starting point should have been no more than four years. There should be a sufficient deduction made to recognize the assistance given to the police and the efforts being made by the appellant to rehabilitate himself. Bearing all those fact in mind, and the period of imprisonment prior to sentencing we consider that there should be a deduction from the starting point of one year and three months. We therefore reduce the term of imprisonment to two years and nine months. That will be achieved by reducing the sentence on the cultivation charge to 2 years 9 months and making all the sentences concurrent. We order that the appellant should serve one year and three months of the term in prison and the balance will be suspended for two years from release. The appeal is allowed accordingly.

Burchett J
Tompkins J
Salmon J