R v Hufanga [2010] TOLawRp 34; [2010] Tonga LR 206 (9 December 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 81/2009

R

v

Hufanga

Scott CJ
9 December 2010

Sentencing – possession of illicit drugs – small amount – fine

The police executed a search warrant at the accused's home and found a bin containing 1.5 grammes of leaves, seeds and flowers fragments. In a motor car further fragments of cannabis were found weighing 0.32 grammes. The accused was found guilty after trial by a judge and jury of one count of possession of an illicit drug, namely cannabis plant, contrary to section 4(a) of the Illicit Drugs Control Act 2003. The maximum penalty was a fine of $120,000 or a term of imprisonment of 25 years, or both. The accused had one previous conviction for indecent assault for which he was sentenced to 9 months imprisonment, suspended for two years. The present offence was committed within the operation period of the suspended sentence.

Held:

1. In a press release dated 1 June 2001 (reported at [2001] Tonga LR 333) the former Chief Justice indicated that henceforth possession of even small amounts of cannabis would attract a sentence of imprisonment. The maximum penalties for this offence were very substantial. The court agreed that in most cases possession, even of cannabis, would attract a sentence of imprisonment, however, it also took the view that the personal circumstances of the offence may occasionally indicate a different result.

2. The court declined to activate the suspended sentence imposed in October 2009 because the offences were of an entirely different character and were separated by a period of three years. Given the tiny amounts of cannabis found in his possession a sentence of imprisonment was not warranted. He was fined $1000 and was given 3 months to pay, in default 3 months imprisonment.

Case considered:

Anders v Police Department [1974-80] Tonga LR 60

Statute considered:

Illicit Drugs Control Act 2003

Counsel for the Crown : Mrs Moala
Counsel for the accused : Mr Tu'utafaiva

Sentence

[1] Felise Hufanga you have been found guilty after trial by a judge and jury of one count of possession of an illicit drug, namely cannabis plant, contrary to section 4(a) of the Illicit Drugs Control Act 2003.

[2] The maximum penalty for this offence is a fine of $120,000 or a term of imprisonment of 25 years, or both.

[3] The brief facts are that the police executed a search warrant at your home. A bin was found containing 1.5 grammes of leaves, seeds and flowers fragments. In a motor car in your compound further fragments of cannabis were found weighing 0.32 grammes.

[4] The details of your family background are set out in a probation report filed on 8 December, 2010. You are aged 37, a farmer and fisherman and you support a de facto partner.

[5] You have one previous conviction for indecent assault for which you were sentenced to 9 months imprisonment, suspended for two years. The present offence was committed on 20 March, 2009 and is therefore within the operation period of the suspended sentence. On the other hand, as pointed out by Mr. Tu'utafaiva, the actual offences were committed some 3 years apart and are of an entirely different nature.

[6] In a press release dated 1 June, 2001 (reported at [2001] Tonga LR 333) the former Chief Justice indicated that henceforth possession of even small amounts of cannabis would attract a sentence of imprisonment. Only a few months before that press release Mr. Justice Ford, as he then was, imposed a fine of $500 on a man who was found in possession of a small amount of the drug. In the conclusion of his remarks Ford J discussed and declined to follow sentencing guidelines laid down by Hill J in Anders v Police Department [1974-80] Tonga LR 60.

[7] As already noted the maximum penalties for this offence are very substantial indeed. While agreeing that in most cases possession, even of cannabis, will attract a sentence of imprisonment, I also take the view that the personal circumstances of the offence may occasionally indicate a different result.

[8] In the present case, the offences being of an entirely different character and being separated by a period of three years, I decline to activate the suspended sentence imposed in October, 2009. Given the tiny amounts of cannabis found in your possession I do not think a sentence of imprisonment is warranted.

[9] You are fined $1000. You are given 3 months to pay, in default 3 months imprisonment.