[2007] Tonga LR 226

IN THE SUPREME COURT OF TONGA

R

v

Talia'uli

Supreme Court, Nuku'alofa
Andrew J
CR 99/2007

28 September 2007; 3 October 2007 

Criminal law – possession of drugs – guilty plea – two years imprisonment 

The 23-year-old accused pleaded guilty to a charge of possession of an illicit drug contrary to section 4(a) of the Illicit Drugs Control Act 2003. On 28 February 2007 the accused had been active in picking up imported drugs from Fua'amotu International Airport that had been brought into the country by a passenger on a flight from Fiji. The drug in question, cannabis, was in three plastic bags weighing 22.5 kg, 26.76 g and 4.99 g respectively. The court noted that the accused may have been charged with the more serious offence of abetment or conspiracy to import drugs. The accused pleaded guilty and there was evidence of remorse and a willingness to assist the authorities. 

Held: 

1. Far from being a small amount for personal use, the quantity of cannabis involved was considerable which the accused would have supplied to others and disseminated into the community. The quantity of drug involved in the case is one of the fundamental factors a court is bound to have regard to -- see Uaisele v Police [2001] Tonga LR 39. 

2. The accused was a first offender and the court accepted that he was entitled to a reduction in sentence of one third for his guilty plea and willingness to assist the authorities. 

3. The accused was sentenced to imprisonment for two years with the last six months of the sentence being suspended for a period of two years upon condition that he undertook and completed the Salvation Army Drug and Alcohol Awareness Programme. 

Case considered:
Uaisele v Police [2001] Tonga LR 39 

Statute considered: 
Illicit Drugs Control Act 2003 

Counsel for accused: Mr Fifita 
Counsel for the Crown: Mr Little 

Judgment

The accused has pleaded guilty to a charge of possession of an illicit drug contrary to section 4(a) of the Illicit Drugs Control Act 2003. 

The particulars of the offence are as follows: 

"... on or about the 7th March 2007 at Tokomololo, you did knowingly without lawful excuse have in your possession 3 plastic bags containing cannabis (plastic bag Exit 1(a) with cannabis weighing 22.52 g; plastic bag Exit 1(b) with cannabis weighing approx 26.76 gms and plastic bag Exit 1(c) with cannabis weighing approx 4.99 gm. 

An agreed Summary of Facts is as follows and I quote: 

"Summary of facts

The facts are as follows: 

The accused resides in the village of Tokomololo.

On or about the 28 February 2007, arrangement was made by a person known to be "Pangi" with the accused to pick up a bag (containing cannabis) supposed to be arriving with a passenger in an Air Fiji flight from Fiji at the Fua'amotu Airport on the same day. 

Pangi had arranged with a person namely "Naua" to take the accused to the Fua'amotu Airport. Naua would then return and wait at the village of Malapo for the accused to pick him up from the Airport once he received the bag containing cannabis.

On the said morning, Naua went in his vehicle as arranged and dropped the accused at the Airport. He then returned and waits at the village of Malapo. 

At the Airport, and as agreed with Pangi, the accused received a phone call from an unknown person in Fiji telling him the description and clothing of the passenger who was going to bring the bag. The accused was told that this person has long hair, and was wearing a white T-shirt, and black coloured shorts. He was also told that the bag would be red in colour. The accused was further told that this person will be coming out of the terminal and place the bag on a table at the cafeteria area. The accused would then pick up the bag. 

As the flight arrived, the accused watched carefully as the passengers came out. He then noticed the passenger as he came out with the bag. The passenger went to the table at the cafeteria, and left the bag there. The accused then went and picked up the bag. 

At that point in time, the accused then called Naua who was waiting at Malapo, not to pick him up, that the bag has been confiscated by the police and customs officers at the Airport. The accused then took the bag and hitched a ride from the Airport to the village of Lapaha. At Lapaha, he went to a tax allotment that belonged to his uncle. 

Once at the allotment, the accused opened the bag and inside were noodles and biscuits on top. Below the snacks was a box containing 8 large plastic bags containing cannabis. The accused would then hide out at the tax allotment at Lapaha while Pangi and Naua searched for him in respect of the bag. Whilst at the allotment, the accused smoked and gave out supplies of cannabis from the plastic bags to the local boys in the village. 

He would then stay in the tax allotment during the day, and would come out to his uncle's house in the township of Lapaha at night. 

Approximately after a week, the accused returned to Tokomololo with the bag, and at the time, there were only 3 and a half bags left on the bag. He then wrapped up the three and a half bags with a larger plastic bag and hidden it at an area Vaikeli. 

After a day or so, the accused returned to Vaikeli and got the half plastic bags and returned with it to the village. He would smoke and give out supplies of cannabis to boys at Tokomololo. On the next day, the accused went to Vaikeli and got half of the cannabis contained in one of the plastic bags. He would then smoke that cannabis and gave out supplies of cannabis to boys at Tokomololo. 

On the night of the 6 March 2007, the accused went to Vaileli and got the 2 ½ left of plastic bags and brought it to his aunt's (Mele Mama'o) residence at Tokomololo. He then put the plastic bags inside a big bottle and hid it in the ceiling of the bathroom. 

On the morning of the 7 March 2007, the Police arrived with a search warrant to search Mele Mama'o's residence in respect of the accused being suspected to be in possession of cannabis. The Police found the cannabis as hid by the accused in the ceiling of the bathroom. The accused was then arrested together with the cannabis. 

The suspected materials were then tested by the government analyst. On his report dated 13 March 2007, the analyst reported the weight of the suspected materials. In respect of the two plastic bags, cannabis in one plastic bag weighed approximately 22.52g and the other weighed approximately 26.76g. In respect of the ½ plastic bags, cannabis weighed approximately 4.99g. The analyst confirmed in his report that the suspected materials were cannabis in origin. 

At the time of the accused's arrect, Pangi and Naua had not been able to locate the accused." 

The accused is of a relatively young (aged 23) 1st offender who has pleaded guilty to the charge, but he is not a young 1st offender found with a small quantity of cannabis for personal use. The disturbing feature of this case is that the accused seems to have been immersed in the drug culture and was active in picking up imported drugs from the airport. He may consider himself fortunate that he has not been charged with abetment or conspiracy to import drugs. Far from this being a small amount for personal use, it involved considerable quantities of cannabis which the accused supplied to others and it was disseminated into the community. When it comes to sentencing the quantity of drug involved in a case is one of the fundamental factors a Court is bound to have regard to: see Uaisele v Police [2001] Tonga LR 39. 

The accused is, as stated, 23 years of age. He is one of 9 children and his father whom he is in contact with lives in New Zealand. He is married and is said to he a good husband. He left school at 15 and has been working in the bush. He claims to suffer from permanent illness causing headache and back pain but this is said to have been medically attributed to "his heavy sniffing of ados and benzene for more than 15 years."

I take into account that the accused has pleaded guilty to the charge. That is evidence of remorse and a willingness to assist the authorities. I would access that plea of guilty as deserving of a reduction in sentence of one third. I accept that the accused has shown some remorse and hopefully there are some prospects of rehabilitation. But in weighting all of the subjective and objective facts I can only conclude that the seriousness of this offence involving drugs means that a custodial sentence is called for. 

Would you stand up please: 

For this offence you would have received a sentence of 3 years. Due to your early plea of guilty that is reduced to a term of 2 years. 

You are sentenced to imprisonment for 2 years. The last 6 months of that sentence is suspended for a period of 2 years upon condition that you undertake and complete the Salvation Army Drug and Alcohol programme.