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R v Tamo'ua [2023] TOCA 18; AC 5 of 2023 (5 October 2023)

IN THE COURT OF APPEAL OF TONGA

NUKU’ALOFA REGISTRY


AC 5 of 2023

[CR 148 of 2021]


BETWEEN

REX Appellant


AND

KAPENI TAMO’UA Respondent


___________________________________________________________________________

JUDGMENT OF THE COURT
___________________________________________________________________________


Court: Harrison J

Heath J

Dalton J


Counsel: ‘Aunofo Fifita-‘Aholelei for Appellant
Kapeni Tamo’ua, in person, Respondent


Hearing: 25 and 27 September 2023


Judgment: 5 October 2023


The appeal

[1] Mr Kapeni Tamo’ua stood trial in the Supreme Court on one charge of possessing 3kgs of cocaine and one of destroying evidence.[1] The jury found him guilty on both charges. On 30 March 2023, Cooper J sentenced Mr Tamo’ua to a term of imprisonment of three years, fully suspended for three years, together with 50 hours community service.[2]
[2] The Crown sought leave to appeal against sentence on the grounds that it was manifestly inadequate.[3] Leave to appeal was granted by the Lord Chief Justice on 27 April 2023, who also stayed execution of the sentence pending determination of the appeal.
[3] The Crown contends that the sentencing Judge erred because:

Crown sentence appeals

[4] On a Crown appeal, a sentence will only be increased to “that level which is considered the lowest appropriate for the class of offending” involved.[4]
[5] Particular difficulties arise when a successful appeal would result in an increase in sentence, from non-custodial to one of imprisonment. In such a case, courts will be mindful of the risk of putting a defendant in double jeopardy of imprisonment. Generally speaking, an appellate court will only increase a non-custodial sentence to one of imprisonment if there were no other means of marking the offending adequately. That approach has been taken by the Court of Appeal in Tonga, in R v Naidu.[5]
[6] In some jurisdictions, of which Tonga is one, a Crown appeal against sentence will first require leave from the appellate court. In other jurisdictions, the question of leave and the merits of the appeal will be dealt with together. Whether the question of leave is determined prior to the merits of the appeal or at a substantive hearing, the same principles apply. If leave is addressed before the substantive appeal the question is whether the sentence imposed is likely to be disturbed by increasing it from a non- custodial to a custodial sentence.
[7] Although reasons were not given for the decision to grant leave to appeal, we consider the issue raised in this case was sufficiently important for the Lord Chief Justice to have given leave. Given the policy underlying the recent increase in maximum penalties for Class A controlled drugs,[6] a sentence for possessing 3kgs of cocaine which does not involve any time in prison is one that ought properly to be reviewed.

Context

[8] On or about 23 July 2021, a raft containing 36 bricks of cocaine washed up on a beach at ‘Otulea. The cocaine was found by Mr Nomani Naeata, who distributed it among people living in Vava’u. Following Police inquiries, a number of people were charged with complicity in the offending, most with possessing cocaine. One of those people was Mr Tamo’ua.
[9] Mr Tamo’ua pleaded not guilty to charges of possessing cocaine and destroying evidence and was tried together with two other co-offenders, Mr Makisi ‘Ahovelo and Fe’ofa‘aki Havea. After guilty verdicts had been returned, they were sentenced on 30 March 2023 along with others (some of far greater culpability) who had either pleaded guilty or been found guilty following trial for offences relating to the cocaine found in Vava’u. One of the other offenders before the Court for sentence was Mr Tamo’ua’s son-in-law, Mr Leonati Motuliki.
[10] Mr Tamo’ua did not give evidence at his trial. As he was found guilty by a jury on both charges, there is no record of the reasons why the jury returned those verdicts. Nor was there any fulsome explanation of the factual foundation for sentencing in the Judge’s sentencing remarks (the Sentencing Remarks). After inquiry from the Bench at the commencement of the appeal, we were provided with further information to assist us in determining the underlying facts. In particular, we received from counsel for the Crown:
[11] On balance, we consider that the safest approach is to rely on Mr Tamo’ua’s second and third statements to the Police, in both of which he acknowledged that he had lied in the first. We do so because there are some inconsistencies between the evidence of Mr Motuliki and the statements of Mr Tamo’ua. Given Mr Motuliki’s greater involvement in the criminal enterprise, there is room for doubt as to the reliability of his evidence when it conflicts with Mr Tamo’ua’s own statements.

Sentencing in the Supreme Court

[12] On 30 March 2021, Cooper J had the difficult task of sentencing eight offenders, with markedly different levels of culpability. In dealing with this appeal, we acknowledge our ability to focus our attention on an offender of lesser culpability. That has enabled us to consider the sentence imposed on Mr Tamo’ua in an undistracted way. Our comments on the Judge’s reasons for imposing that sentence should be read in that context.
[13] Before undertaking the sentencing exercise, Cooper J set out his general approach.[7] In particular, the Judge:
[14] Cooper J reached his end sentence of three years imprisonment on the following basis:[15]
[15] The Judge declined to impose a separate penalty on the charge of destroying evidence. In doing so, he referred to reasons that he had given earlier in his sentencing remarks when sentencing Mr ‘Ahovelo.[22] Cooper J found that Mr ‘Ahovelo’s “association with [the] drugs before ‘destroying’ them was short lived”, adding that he inferred Mr ‘Ahovelo to have destroyed the drugs “to disassociate himself from criminality”.[23] Those reasons mirrored the reasons why Mr Tamo’ua was given credit for destroying the drugs: “to be rid of association with criminal activity”.[24]
[16] In sentencing Mr ‘Ahovelo, Cooper J referred also to Mr Tamo’ua’s position. He said that the drugs had been destroyed because neither Mr ‘Ahovelo nor Mr Tamo’ua wanted “to have any more connection with an illegal activity”.[25] Cooper J found that “trying to bring an end to illegal activity is not the same as trying to frustrate criminal proceedings”.[26]

The Crown submissions

[17] In short, the Crown submits that the starting point was too low and excessive credit was given for mitigating factors. While the Crown does not take issue with the starting point of 15 years imprisonment adopted by the sentencing Judge, it does contend that the Judge erred in reducing that starting point to seven and a half years imprisonment on account of Mr Tamo’ua’s lesser culpability.[27]
[18] In particular, the Crown points to an element of triple-counting in the Judge’s methodology. Not only did he reduce the starting point of 15 years imprisonment by one half to reflect Mr Tamo’ua’s level of culpability, but he subsequently gave a further credit of one year “to truly reflect how [Mr Tamo’ua] was at the bottom of the lesser role category”, and one of two years “to reflect the very short time that [he] had possession of the drugs and his destruction of them” to distance himself from criminal activity.[28] In addition, the Crown contends that too much credit was given for prior good character.[29]
[19] The Crown’s final position was that a starting point of nine years imprisonment should have been fixed before personal mitigating factors were taken into account. The only personal factor was the prior good character.
[20] The Crown also contends that the Judge erred in fully suspending the end sentence of three years imprisonment. Reliance is placed on the decision of this Court in Mo’unga v R,[30] to which we shall return.
[21] Mr Tamo’ua appeared on his own behalf, by audio-visual link from the Courthouse in Vava’u. It became clear to us that he is not proficient in the English language. As a result, Mr Tamo’ua was unable to assist us in any meaningful way. We did not call upon him to make submissions. To compensate, the Crown’s argument was tested rigorously by questions from the Bench. Given the outcome of the appeal, no prejudice has been caused to Mr Tamo’ua.

Mr Tamo’ua’s culpability

[22] As previously indicated, we have assessed Mr Tamo’ua’s culpability by reference to the statements that he gave to the Police on 5 and 16 August 2021. We summarise our evaluation of the factual position as follows:
[23] The Crown acknowledges that there was no reliable evidence to determine the amount of time that Mr Tamo’ua had the cocaine in his possession before he destroyed it. In those circumstances, we must draw the inference most favourable to Mr Tamo’ua. On the basis of Mr Tamo’ua’s statements of 5 and 16 August 2021, we consider it is most likely that he disposed of the drugs on Thursday 29 July 2021, soon after Mr Motuliki left to go to Tongatapu.
[24] For sentencing purposes, we regard Mr Tamo’ua as someone who, while in “possession” of the cocaine in a strict legal sense, was not a willing participant in the criminal enterprise. We find that he destroyed the cocaine both to protect his family (his daughter was married to Mr Motuliki), to disassociate himself from the criminal activity and to avoid the possibility that the Police might consider that the cocaine belonged to him. That is the basis on which we consider the Crown’s sentence appeal. Although expressed differently in the Sentencing Remarks, our assessment is not materially dissimilar to the basis on which Cooper J sentenced Mr Tamo’ua.[31]

Analysis

[25] We have concluded that the Judge did err in his sentencing methodology and in his decision to suspend fully the term of imprisonment that would otherwise have been imposed on Mr Tamo’ua. In our view, those errors led the Judge to provide an inadequate sentencing response to the totality of Mr Tamo’ua’s offending. It is necessary for us to re-sentence Mr Tamo’ua. In undertaking our own analysis, we explain why we have decided that the Judge fell into error.
[26] In any jurisdiction, determination of an appropriate sentence to reflect an offender’s culpability will be guided by the community’s views (as manifested in the legislation creating the offence and providing maximum penalties) about the seriousness of particular offending. In Tonga, the maximum penalty for possession of a Class A controlled drug, such as cocaine, has been increased significantly in recent times. In sentencing Mr and Mrs Cox, the Lord Chief Justice provided a pithy explanation for that increase:[32]
  1. Since December 2020, the statutory maximum penalty in Tonga for possession of 1gm or more of a Class A drug is a fine of $1 million, life imprisonment or both. The intended increase from the previous maximum period of imprisonment of 30 years was part of Parliament’s response to the growing scourge of such drugs in the Kingdom, most commonly methamphetamine. Prior to the recent [cocaine cases from Vava’u] ... drug offending involving cocaine has been relatively rare before the courts.

[27] We consider that the Crown’s complaints about sentencing methodology are justified. So far as the final starting point is concerned, there is an issue over the extent of the assistance that may usefully be obtained from the UK Guidelines, given the adoption of the Zhang approach in Tonga.[33] For the reasons that follow, we consider that the Judge placed too much emphasis on the two-stage approach set out in the UK Guidelines. That led, in our view, to an error in assessing the appropriate starting point.
[28] Under the UK Guidelines, as applied by Cooper J, there is a two-stage approach to fixing a relevant starting point. The first is to consider a starting point that responds to the quantity of the Class A drug possessed. Cooper J’s starting point of 15 years imprisonment reflected that used in the United Kingdom for possession of 3kgs of cocaine. The second step is to identify the level of criminality involved, and to reduce the starting point to take account of that. That two-stage approach was unnecessary in the context of the present case.
[29] In Zhang, the Court of Appeal highlighted the need for a sentencing Judge to assess the seriousness of the conduct and criminality as part of a single exercise. In summarising the New Zealand approach, Kós P and French J, delivering the judgment of the Court, said:[34]

[10] In this judgment we conclude:

(a) Sentencing must achieve justice in individual cases. That requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed in this and similar judgments.

...

(d) In particular, we hold that the role played by the offender is an important consideration in the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending.

(e) A more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role. Diminished role in methamphetamine dealing offending may result in an offender moving not only within a band – as currently happens or is supposed to happen under Fatu – but also between bands.

(f) Although we do not adopt the two grid matrix (involving quantity bands and role categories) devised by the United Kingdom Sentencing Council, we record that, in assessing role, sentencing judges may find it helpful to have regard to the Council’s categorisations of role (into “leading”, “significant” and “lesser”). In considering the individual appeals before us, we make use of those categorisations.

...

(Emphasis added)

[30] As Zhang makes clear, the New Zealand approach and the UK Guidelines are not incompatible; they are complementary in nature. There is no doubt that the UK Guidelines are useful to assist identification of the nature of the role played by a particular offender.
[31] This is a most unusual case in which there are no truly appropriate comparator sentencing decisions. That being so, we prefer to adopt a sentencing approach that reflects the totality of the offending. We consider that a principled way of determining an end sentence is by reference to the maximum penalty available for the destruction of evidence offence. This case demonstrates how varied criminal activity involving possession of Class A controlled drugs can be and the need to retain a flexible approach. Save for our comments on methodology, the sentence we indicate ought to have been imposed should not be used indiscriminately in sentencing offenders in cases that are not truly analogous to this.
[32] On any view, Mr Tamo’ua’s culpability for possession of cocaine was, notwithstanding the quantity involved, at the lowest end of the scale. He was an unwilling recipient of the package of drugs and did not intend to trade, supply or otherwise profit from them. Mr Tamo’ua’s reasons for destroying the cocaine to distance its possession from himself and his family was understandable, though not excusable. We consider that his culpability for possession is so low that the destruction charge ought to be regarded as the lead offence. Mr Tamo’ua’s criminality stems from his decision to destroy the cocaine rather than from his possession of it.
[33] Section 37A(1) of the Illicit Drugs Control Act 2003 creates a maximum penalty of 15 years imprisonment for knowing destruction of a substance capable of being used as evidence in relation to the commission of an offence under that Act. The jury was satisfied beyond reasonable doubt that those elements had been proved by the Crown. That is consistent with the facts on which we are approaching sentencing.
[34] The first step is to ascertain the starting point for sentence, having regard to aggravating and mitigating factors of (on a totality basis) the offences. Given the maximum penalty of 15 years imprisonment and the purpose of the increase in the maximum penalty for possession of a Class A controlled drug, and the quantity of 3kgs that was involved, a starting point of five years imprisonment would have adequately met Mr Tamo’ua’s culpability.
[35] The second step is to consider mitigating factors personal to the offender. We consider that the sentencing Judge did not assess mitigating factors appropriately. As we have indicated, there was an element of triple-counting in the reduction of the Judge’s chosen starting point to take account of the circumstances of the offending. A credit for the lesser culpability was inherent in the adjusted starting point of seven and a half years imprisonment. The additional credits of two years and 18 months reflected the same considerations. Those were all mitigating factors of the offending and were taken into account in assessing the starting point. No additional credit should be given for the lesser role than that inherent in the starting point of five years imprisonment which we have assessed as appropriate.
[36] While generous, the additional period of one year’s credit for prior good character was within range for that type of personal mitigating factor. In our view, an end point of four years imprisonment would have been appropriate.
[37] The next question is whether any part of the sentence should be suspended. We do not need to address specifically Cooper J’s decision to suspend the whole of the sentence in the context of one of three years imprisonment being imposed. We assess this issue by reference to the leading authority on whether a sentence should be suspended and, if so, for how long.
[38] The leading judgment on the question of suspended sentences is Mo’unga v R.[35] That case involved a “purely property offence” which the Court of Appeal acknowledged ought not generally to result in a sentence of imprisonment absent “unusual circumstances”.[36] In that case, however, the Court did consider the circumstances sufficient to impose a sentence of imprisonment. It upheld the Supreme Court’s sentence of four years imprisonment.
[39] The Court then considered whether, and if so the extent to which, the sentence ought to be suspended. It said:[37]

Should the sentence be suspended?

The real issue on this appeal is whether the sentence should have been suspended in whole or in part. Section 24(3), giving the Court jurisdiction to suspend the whole or part of the sentence for any period up to three years, is silent on the criteria to be considered in deciding whether a sentence should be suspended. In New Zealand, where there also are no criteria in the relevant statutory provisions, the Court of Appeal, in R v Petersen (1994) 2 NZLR 533 (CA), in a judgment delivered by Eichelbaum CJ, said that the suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed. Apart from that, the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

We see no reason why this approach should not be followed in Tonga. ...

[40] Mr Mo’unga had been convicted on one count of housebreaking and one of theft. Mr Tamo’ua was found guilty of both possession of cocaine and destroying evidence. To recapitulate, the maximum penalty for possessing a quantity of cocaine of 1gm or more is a fine not exceeding $1 million or imprisonment for life, or both.[38] The maximum penalty for the destruction charge is 15 years imprisonment. The offending was of a much more serious type than that of Mr Mo’unga or other comparable cases in which suspended sentences have been ordered.
[41] Given the policy towards drug sentencing evidenced by the significant increase in maximum penalty for possession of Class A controlled drugs of a quantity of 1gm or more, we cannot accept that Mr Tamo’ua ought to have escaped imprisonment completely. However, his limited culpability and the likelihood that he will take the opportunity to rehabilitate himself, reflecting two of the non-exhaustive factors that Mo’unga adopted from R v Peterson,[39], together with the unique circumstances of his offending, does permit the maximum degree of suspension. In our view, an appropriate sentence would have been imprisonment for a period of four years, with three of those years being suspended. That would have left Mr Tamo’ua serving one year in prison.
[42] Were it not for the fact that this is a Crown appeal against sentence, we would have imposed a sentence of four years imprisonment, with three years suspended. In that situation, we would not have added the community service component of the existing sentence. However, for the reasons given in explaining an appellate court’s approach to Crown appeals against sentence,[40] we do not consider it would be just to require Mr Tamo’ua to serve any period of imprisonment at this time.

Result

[43] For those reasons, the appeal is dismissed. Mr Tamo’ua will continue to serve the sentence imposed by the Supreme Court, including community service. On delivery of this judgment, the stay granted by Lord Chief Justice Whitten on execution of the sentence shall cease.
[44] For the avoidance of doubt, we make it clear that, in a future case truly analogous to this, it would be rare that a sentencing court could justify imposing a sentence that did not involve at least a relatively short period in custody.

Harrison J


Heath J


Dalton J

[1] Illicit Drugs Control Act, ss 4(1)(a)(iv) and 37A(1) respectively.

[2] R v Tamo’ua (Supreme Court, CR 148/21 30 March 2023) at para 394. The sentences were imposed under s 24(1)(b) and (e) of the Criminal Offences Act 1988.
[3] Court of Appeal Act, ss 17B and 17(3) respectively.

[4] Generally, see R v Urlich [1981] NZCA 54; [1981] 1 NZLR 310 (CA) at 311 and R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 (CA) at para [31].

[5] R v Naidu [2001] Tonga LR 229 (CA) at para 18. As to the identical approach taken in Australia and New Zealand respectively, see by way of illustration R v Yaroslavceff [2022] SASCA 123 at paras 69 and 70 per Doyle JA (dissenting as to the application of the principle) and R v Donaldson (1997) 14 CRNZ (CA) at 549.
[6] See para [25] below.
[7] Sentencing Remarks, at paras 22–29.
[8] Ibid, at paras 22 and 23, by reference to R v Cox [2022] TOSC 90.
[9] Ibid, at para 24.
[10] Ibid, at para 25, by reference to Zhang v R [2019] 3 NZLR 648 (CA).
[11] Ibid, at paras 26 and 27.
[12] Ibid, at para 27, by reference to R v Cox [2022] TOSC 90 at para 55, and Cavallo v R [2022] NZCA 276.
[13] Ibid, at para 28.
[14] Ibid, at para 29.
[15] Ibid at paras 376–381.
[16] Ibid, at paras 375 and 378.
[17] Ibid, at para 378.
[18] Ibid, at para 378 and 379.
[19] Ibid, at para 379.
[20] Ibid, at para 380.
[21] Ibid, at para 381.

[22] Ibid, at para 382. Mr ‘Ahovelo had also been charged with both possession of cocaine and destroying evidence: see para [9] above.
[23] Ibid, at para 338.
[24] Ibid, at para 380.
[25] Ibid, at paras 326, 328, 331 and 332.
[26] Ibid, at para 328, by reference to s 37A(1) of the Illicit Drugs Control Act.
[27] See para [14](a) above.
[28] See para [14](b) and (c)(i) and (ii) above.
[29] See para [14](c)(iii) above.
[30] Mo’unga v R [1998] Tonga LR 154 (CA).
[31] Sentencing Remarks, at paras 370, 371 and 377.
[32] R v Cox [2022] TOSC 90, at para 53.

[33] See para [13](c) and (f) above.
[34] Ibid, at para [10](a) and (d)–(f).
[35] Mo’unga v R [1998] Tonga LR 154 (CA) (Burchett, Tompkins and Beaumont JJ).
[36] Ibid at 156.
[37] Ibid, at 157.

[38] Section 4(a)(iv) of the Illicit Drugs Control Act, as amended by s 4 of the Illicit Drugs Control (Amendment) Act 2020.
[39] R v Petersen [1994] 2 NZLR 533 (CA).
[40] See paras [4] and [5] above.

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