Rex v Tukia [2012] TOSC 19; CR 302 of 2011 (26 April 2012)

IN THE SUPREME COURT OF TONGA
CRIMINIAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 302 OF 2011

REX

-V-

MICHELL TUKIA

BEFORE THE HON. JUSTICE SHUSTER

HAVING HEARD - Crown counsel, defence counsel Mr. Kaufusi and from the defendant in person.

The defendant appears for sentencing - having pleaded guilty on re-arraignment on 23rd March 2012 to an indictment, alleging two counts of [1] the cultivation of an illicit drug – cannabis and [2] the possession of an illicit drug – namelycannabis

These offences occurred on or about 12th August 2011 at Nualei,when according to the prosecution the defendant's house was searched as a result of a police operation- and the defendant's home and garden was also searched by the police in a police operation.

On being searched the material subject of the first count,believed to be cannabis was found in the garden of the defendants house, police found what appeared to be plants growing in 84 pots and those plants were believed to be cannabis.

A search of the defendant's home by police, produced a small bag of a substance the police believed to be cannabis. All the items were seized under warrant and later taken for analysis.

On confirmation of the fact the materials submitted to the laboratory were illicit drugs and they were in fact illicit and also prohibited drugs, under the 2003 Act, the defendant was charged by the police and bailed to attend court.

COMMENT

These are serious offences alleged to have been committed under the Illicit Drugs Control Act of 2003- because each count allows for a high penalty range of up to 25 imprisonment or fine of $750,000.00 or both.

On his first arraignment on 14th December 2011 the defendant pleaded NOT GUILTY to possession of, and the cultivation of illicit drugs, found in his possession on 12th August 2011. On a subsequent day 23rd March 2012, the defendant indicated he wished to change his pleas to guilty. He was asked if he had been placed under any pressure to change his plea he said he had not. He was re-arraignment and on entering his guilty pleas, he was convicted. The facts were opened and he agreed those facts.

On 23rd March 2012 the defendant was told he would be given full credit for his change of plea, and the matter was adjourned for the preparation of a PSR; the defendant was released on conditional bail to co-operate with the making of the reports. The court takes note of the fact the prosecution clearly accepts these drugs - were for the defendants own personal use.

Having considered the fact that the defendant pleaded guilty and, the fact he co-operated with the police and with this court –having heard from the defendant, and his counsel and noting the defendant is NOT a first time and he has a prior conviction for possession of illicit drugs - ten years ago.

I told the defendant, had he pleaded not guilty and been found guilty, after trial for possession of this quantity of illicit drugs, I would have imposed a sentence of between 40-48 months in prison on each count to run as concurrent sentences on a Not Guilty plea.

However I take into account the defendants plea of mitigation, and the fact that the defendant is now 38 years of age with five children to support and I give him credit accordingly - but these are soft drugs and their possession in such quantities requires a deterrent sentence..

The defendant is sentenced as follows:-

• Count 1 – The defendant is sentenced to THREE YEARS in prison
  
• Count 2 – The defendant is sentenced to THREE YEARS in prison
  
• He is also fined $1,000.00
  

HOWEVER – as a last chance as the defendants wife is sick, I have decided to suspend the whole of the sentence of imprisonment which I have just passed; conditional on the defendant keeping the peace and being of good behaviour and committing no further offences, during that period of time

The defendant was unable to pay the $1,000.00 fine immediately, so he is ordered to pay the sum of $40.00 per week. Each payment of $40.00 is to be made to the Supreme Court Registry by 12.00 on the Friday of each week. The first payment of $40.00TOP is due on Friday 04th May 2012 by 12.00 in default of payment the defendant will serve EIGHT months in prison. The defendants can pay more than $40.00 each week - but he cannot pay less than $40.00TOP per week, and his payments must be regular.

A Destruction Order is made for the drugs, which are to be destroyed in the presence of the Chief Magistrate. The defendant indicated he understood the effect of breaching a suspended prison sentence.

This is to be a deterrent sentence, applying the principles enunciated in the Crown –v- Cunningham – and the sentence will run from today's date

A Destruction Order is made for the drugs which are to be destroyed in the presence of a Magistrate. A Copy of this Order is to be served on the defendant as a fine notice

DATED 26th April, 2012

JUDGE