Rex v Palanite [2007] TOSC 15; CR 161-2006 (16 October 2007)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR 161 of 2006

REX

-V-

‘ALEKI PALANITE

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr. Sisifa for the Crown and
Mr. Tu’utafaiva for the accused

Dates of Hearing: 12 October 2007
Date of judgment: 16 October 2007

SENTENCING

The accused pleaded guilty to an offence of possession of an illicit drug contrary to Section 4(a) of the Illicit Drugs Control Act.

The particulars of that offence were that on or about 17th January 2006 at ‘OHONUA/’EUA, you did knowingly without lawful excuse have in your possession 7 plastic bags, containing cannabis.

A summary of facts is as follows and I quote:

"At the time of the offence, the accused was residing in ‘Eua.

On or about the month of January 2006, the accused had arranged with one namely: Nuti to deliver some cannabis to his sister: ‘Aholotu who was residing at Sopu, Tongatapu.

On the morning of the 17 January 2006, the accused then phone called ‘Aholotu from ‘Eua and arranged to expect Nuti with the cannabis. The arrangement was that once receiving the cannabis, ‘Aholotu would then send the cannabis on the MV. ‘Alaimoana Vessel which was to sail from Nuku’alofa to ‘Eua on that afternoon.

‘Aholotu received 7 plastic bags containing cannabis from Nuti. She then packed the 7 plastic bags into a large white plastic bag. ‘Aholotu then went to the Faua Wharf and arranged with the Bursar of the vessel: Siueni Afu to take the plastic bag with him. Siueni was told that the accused would pick up the plastic bag upon arrival.

During the voyage, Siueni was suspicious of the plastic bag so he opened it. He was suspicious that the contents of the 7 plastic bags were cannabis. Siueni then contacted his brother in ‘Eua to contact the Police and expect the accused to pick up the plastic bag. The Police were informed, and they were waiting at the wharf for the arrival of the vessel.

When the vessel arrived the accused picked up the plastic bag from Siueni. Once receiving the plastic bag, the Police arrested the accused together with the plastic bag, and were taken to the Police Station.

The accused was interviewed, and admitted that the items contained in the 7 plastic bags were cannabis.

The cannabis was then examined by the Government Analyst. On his report dated: 21 January 2006, the Analyst reported that all items contained in 7 clear plastic bags weighed approximately 15.48g in total. Each plastic bag (packs) measures approximately 6.0x4x0cm, and contained suspected items weighing approximately 2.21g each (average). The Analyst after the investigation concluded that all suspected items were cannabis in origin."

The accused is aged 25. This is his first offence. He was born in Vava’u and is the youngest of 8 children. His father died some years ago and his mother remains with the rest of the children at Vava’u. He attended Tonga College and reached Form 6. He got married recently and has a 6 month old child. It is reported that there are some problems in the marriage although it appears that they have now re: united.

The accused has pleaded guilty to the offence at the first opportunity which is deserving in my view of a reduction in sentence of 25%. That is some evidence of remorse and in fact he has expressed remorse for his actions.

A probation report is however less favourable and expresses some doubt that the accused has amended his life style and desisted from using drugs and alcohol. He claims that the marijuana was for his personal use.

I consider that the amount of cannabis involved here means that this is an offence which is close to deserving a term of imprisonment. But I take into account that the accused is a first offender and more importantly if take into account the fact that the accused’s sister received a sentence of 1 month suspended for 1 year on condition that she perform community service work. I think that a sentence of full time custody might in these circumstances create a feeling of injustice and on the principle of parity, I propose to pass a sentence but suspend that sentence upon certain conditions.

For this offence you would have received a sentence of 18 months imprisonment. For your early plea of guilty that is reduced to a term of 12 months.

You are sentenced as follows:

Sentenced to a term of imprisonment of 12 months. The whole of that sentence is suspended for a period of 2 years upon condition that:

(1) You are of good behaviour for 2 years.
(2) You undertake and complete 100 hours of Community Service work.
(3) You undertake and complete the Salvation Army drug & alcohol programme within the next 12 months.

NUKU'ALOFA: 16 October 2007.

JUDGE