Rex v Talakai [2012] TOSC 36; CR 57, 58 of 2010 (10 August 2012)

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

CR 57, 58 of 2010

REX

V

1. MALIA KATALINA TALAKAI
2. MISINALE TALAKAI
   

BEFORE THE HON. ACTING CHIEF JUSTICE CATO

SENTENCING

The accused are husband and wife. They were convicted after a jury trial on the 27th June 2012 of importation of an illicit drug contrary to s 3 of the Illicit Drugs Control Act 2003, and of dealing for the Importation of an illicit drug contrary to s 4 (b) of the Act in or about December 2009 – January 2010.

This was a strong Crown case. There was evidence of telephone communications between a third party well known to both accused who resided in Australia. There was evidence that person came to Tonga in the relevant period. During that period the accused arranged with the third party to have prohibited drugs namely steroids imported into Australia from China. The likely purchaser of the consignment was the third party. Mrs. Talakai lent her name to the importation appearing on consignment documents. She was contrary by a customs broker and said that the consignment was shampoo. Plainly, some of the documents referred to powder. Customs were suspicious and the consignment was placed under inspection and later the substances were taken to NZ for drug analysis and found to be prohibited substances.

Meanwhile, her husband Misinale became involved also with Customs. He signed documentation for the broker to proceed to clear goods. He also went with another third party to inquire when the good would be cleared. He knew they were steroids and apparently Customs were informed that this was so. Both accused made admissions from which a jury were able to conclude that both were involved in importing the drugs into Tonga, and in dealing with the third party. It would seem that this had occurred on a previous occasion, but I sentence only for this offending. The likely destination of the steroids was Australia. I do not know how much the accused received for becoming involved in the importation but the reason Mr. Talakai gave for the importation into Tonga of the steroids was that Customs here were considered to be less vigilant than elsewhere.

I have no evidence as to the value of the drugs either but I proceed on the basis that the amount of the drug must have had some real commercial value otherwise it would not have been worthwhile for the accused to have become involved or the third party to have travelled to Tonga from Australia to organise and later deal with the importation by re-exporting it to Australia. Both accused made admissions of involvement which the jury must have acted upon to find them both guilty of importing and dealing in illicit substances. Likewise, the accused must have received some real pecuniary benefit in becoming involved although I do not know how much they received.

The convictions may well serious consequences for this family and the children of it of whom I am told there are five. Mr Talakai has been a schoolteacher for many years and these convictions may well result in him having his contract terminated which means the family will lose a significant income by Tongan standards. Mrs Talakai does not work and she has a number of children to take care of as I have said. However although that is an unfortunate consequence of the offending, it is not a matter which I can take into account in sentence. When persons choose to wilfully disregard the laws on prohibited substances and engage in importing illicit substances into this country, they do so at their peril, and have to accept the consequences that may follow.

In Tonga, there is no classification as there is in many other countries of drugs or prohibited substances. The crime of importing was in 2003 increased to a maximum penalty of 30 years and or a fine of $1,000,000 which represented a threefold increase from what it had been under earlier legislation. The legislation was reviewed by Chief Justice Ford in R v Kata [2010] Tonga LR 54. The importance of the Courts upholding what was a determined attempt by the legislature to control drugs and prohibited substances in the Kingdom as reflected in these increased penalties is of paramount importance in sentencing for this kind of criminal activity. In this case, the prohibited substance was not what might be described as a hard drug such as heroin, cocaine, methamphetamine or ecstasy, the importation of which depending on amount could result in very lengthy sentences; in Kata 14 years imprisonment for a very significant methamphetamine importation.

However the actions of Mr. And Mrs. Talakai nevertheless involved a cynical disregard of the illicit substances legislation and involved a calculated attempt to avoid its application for some commercial gain. In my view, a sentence of imprisonment is required for the importation of these substances. I feel able to impose sentences that are to the lower end because they do not come within the category of hard drugs.

I note that there do not seem to be many sentencing cases on steroids. My research indicates one such case of possession of a large amount of steroids in England where it is classified as a class C drug attracted a sentence of two years reduced on appeal to 18 months for inordinate delay in prosecution. R v Dalessandro 2008 EWCA Crim 1501; [2009] 1 Cr App R (S) There, the prisoner possessed a large quantity for personal use as a body builder and to share with others in his group. Importing in Tonga is regarded as a more serious offence than possession as is the offence of dealing which carries a maximum sentence of 25 years imprisonment.

The Crown also filed a useful sentencing submission which included several comparable involving steroid type substances. Of these, the most useful is R v Temmingh [2005] NSWCCA 261 where anabolic substances were illegally imported. Under the Customs Act, the penalty was a maximum sentence of 5 years imprisonment and a maximum fine of $110,000. The lower court imposed a sentence involving a good behaviour bond of three years, and a fine of $30,000 for the importation of very large amounts of steroids intended for animal consumption where considerable commercial profit could be expected. . The Appeal was subsequently allowed and a sentence of 12 months imprisonment was imposed suspended effectively on condition that the appellant was of good behaviour for three years. A pecuniary penalty of $30,000 was also imposed. The suspension in that case was ordered because the appeal had been brought by the Crown and the respondent had been at liberty.

Another case is Gill v Chief Executive officer of Customs [2009] WASC 222. There, heavy fines were imposed for effectively importing significant amounts of anabolic substances. I do not think it appropriate however to deal with this matter by way of a fine. In any event, any fine of substance is likely to be beyond the means of these offenders to pay with the family commitments that both parents have.

In my view, a sentence of two years imprisonment is called for to reflect the deterrence rationale underlying the heavy penalties set out in the Tongan legislation. It also reflects the fact that Mr and Mrs Talakai acted deceptively with a view to undermining those laws.

The issue now is whether I should partly or fully suspend the sentence. Approaching the matter from the aspect that both offenders are otherwise law abiding persons and both first offenders, and further that Mr Talakai has spent many years teaching and in that way contributing to Society and his wife is also generally a law abiding person with the responsibility for looking after a large family, I consider the public interest is advanced by fully suspending these sentences and I do this conditional upon the prisoners not being convicted of an offence punishable by conviction for a period of three years.

To fully suspend a sentence of imprisonment for importing is exceptional but in my view justified here because the drugs were steroids, the amount of the drugs whilst of a commercial value was not very significant unlike the importation in R v Temmingh, the profit unlikely to be very significant unlike that case also and both offenders are otherwise of good character. In my view the rehabilitative nature of a suspended sentence particularly for first offenders justifies the course I have taken, and outweighs the public interest that ordinarily would require a prison sentence at least in part to be served for offending of this kind. R v Motulalo [2000] Tongan Law Rep 311; R v Petersen [1994] 2 NZLR 533.

In the overall context of this offending, however, I take the view that Mr Talakai is the more culpable. He should not have allowed or encouraged his wife the mother of several children to become involved, in this kind of activity. I gained the impression that his wife although a willing participant in the scheme would be adversely influenced by her husband's support of it. In my view on the count of dealing which under Tongan law carries a maximum sentence of imprisonment of 25 years or a fine of $750,000 or both offenders should be sentenced to periods of community work.

In the case of Mr Talakai I sentence him to 100 hours community work to be supervised by the probation service and or appropriate delegate.

In the case of Mrs Talakai I sentence her to 50 hours community work to be supervised by the probation service or appropriate delegate. I am satisfied that suitable work can be obtained for both offenders. These sentences are imposed concurrently with the two year suspended sentences I have imposed, and should commence on a date as directed by the probation office with the work to be carried out also as directed by the probation office. They should also be served at separate times when one parent is available to look after the children.

The sentences of community work for dealing are a further reminder to Mr and Mrs Talakai and to others that the drug laws of the Kingdom are to be respected.

The offenders have been warning that further offending during the three years period or a failure to complete community work may mean that they be called upon to be resentenced.

DATED: 10 AUGUST 2012

ACTING CHIEF JUSTICE