Rex v Huni [2018] TOSC 33; CR135-136 of 2017 (29 May 2018)

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

CR 135-136,139-142 of 2017

BETWEEN: R E X
- Prosecution

AND: SILIVA’AI HUNI
[CR139/2017]

SIUA FAKAHUA

[CR140/2017]

TEVITA TEALI’I FUSITU’A

[CR141/2017]

SIAOSI BROWN

[CR142/2017]

SATIO MATAKAIONGO

[CR135/2017]

SIONE ‘ATUPUHA LATU

[CR136/2017]
- Defendants

BEFORE THE HON. JUSTICE CATO

Mr Finau for the Prosecution
Defendants unrepresented

S E N T E N C E

1. These prosecutions arise out of two operations which took place in Nuku’alofa on the same day, the 4th May 2017. In relation to the prosecution, CR139-142/2017, four men were arrested in connection with the offending involving a substantial plantation containing a very large number (3894) cannabis plants, the weight being, after amended particulars were requested by the Crown in relation to the trial of Mr Huni, 1698.92 grams at Matahau, Tongatapu. Also, located secreted at the plantation was a.22 semi-automatic rifle and 6 ammunition for a .22 calibre long rifle.
   
2. Three of the four men, Siua Fakahua, Tevita Fusitu’a, and Siaosi Brown pleaded guilty to charges of possession and cultivation of cannabis contrary to section 4(a) of the Illicit Drugs Control Act. Their role was as guards and assistants at the plantation.
   
3. The principal offender was Siliva’ai Huni, who defended charges of possession and Control Act, possession of a firearm without a license contrary to section 4(2)(b) of the Arms and Ammunition Act and possession of Ammunition without a licence contrary to section 4 (2)(b) of the Arms and Ammunition Act. After about a five day Judge alone trial, he was found guilty on all charges. He and his accessories appeared for sentence where, on the 25th May 2018, submission from the Crown were heard and the prisoners were given the opportunity also to make submissions.
   
4. I was referred to a number of authorities by Mr Finau for the prosecution but the most important is that of Vea v R [2004] TOCA 7. There, the Court of Appeal upheld an appeal against a sentence for cultivation of cannabis adopting the approach of the New Zealand Court of Appeal in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 where it was said that there were three general categories of cannabis drug offending; small quantities for personal use with sentences up to two years imprisonment, more serious being small scale commercial cultivation with sentences up to 4 years imprisonment and a more substantial category being large scale cultivation for commercial purposes where sentences over four years were appropriate. The Court also observed that similar considerations should apply in relation to those convicted of possession for supply of amounts of marijuana that indicated a commercial scale operation. In New Zealand, at the time of the offending, the maximum sentence for offences of this kind was ten years although this has been increased. In Tonga, the maximum sentence for possession and cultivation of cannabis is 7 years imprisonment.
   
5. I have noticed more cases of drug offending coming before this Court in the last couple of years. Not only is this apparent for cannabis related offending but even more serious methamphetamine offending. It may be that this is the result of the police concentrating more resources on drug investigation but whatever the reason, this Court is experiencing an increased number of drug prosecutions.
   
6. The present offending is serious. Although Police intervened in a timely way, the plantation consisting largely of seedlings or small plants which had been recently planted out, the plantation appearing to be substantial and well organised. Some seedlings still had to be planted out and were found by police in containers. The plantation showed the presence of fertilizer and there were, in all, a very large number of seedlings or small plants which, if they had grown to maturity, would have yielded a very significant commercial amount of cannabis. As well, police located Siua Fakahua, Tevita Fusitu’a, and Siaosi Brown, who were employed as guards or caretakers on the plantation which included a camp. Mr Huni lived in separate accommodation with his family in the area. Of importance in the case against Mr Huni was the fact that police located an unlicensed firearm which had been secreted under plant material inside the plantation and unlicensed ammunition was found at the camp. Mr Huni was found guilty of possession of these unlicensed items. The inference I draw with their presence at the plantation was that they were available for use by the accused to protect the site and deter unwelcome visitors. The plantation was a professional operation being conducted by Mr Huni with the assistance of the other prisoners, and was capable of developing into a significant commercial cultivation within the third category in Vea. The starting point for sentence in the case of the principal, Mr Huni, must be one that reflects this and emphasizes the seriousness of the criminality of his offending. The starting point, in my view, is five years imprisonment and this is increased to five years and nine months imprisonment because of the presence of the firearm and ammunition at the plantation. Sentences for this kind of offending as I have said must be sufficient to be viewed as a real deterrence and also protect society from those who are prepared to flout the law and deal in cannabis for commercial gain, in a substantial way.
   
7. I do not find in the probation report anything which suggests that Mr Huni, who is aged 34, will be a candidate for rehabilitation. He had little education and has a wife and family of three children. He is said to be the breadwinner. Be that as it may, the fact that he has a family is not something I can take into account in any significant way in mitigation, and personal circumstances amount to little when it comes to drug offending. One child is said to be in poor health. Mr Huni went into this with the knowledge that there were serious risks associated with the development of an illegal enterprise of this nature, and not long after he had completed a suspended sentence for drug offending. Also, he was instrumental in corrupting the other young men to assist him at the plantation. He persisted in this when he called, two of them, Mr Fakahua and Mr Fusitu’a who having plead guilty earlier then told the Court that Mr Huni was not involved, evidence which I rejected. He was also convicted of having the unlicensed firearm and ammunition at the property and I have already observed that, this, in my view, was to at least deter unwelcome visitors. In his probation report, Mr Huni continued to deny involvement which I find unrealistic and supportive of the view that he is not a particularly likely candidate to be rehabilitated. Indeed in 2014, as I have indicated, he was convicted of being in possession of cannabis and sentenced by me as a first offender to a fully suspended two year sentence on conditions which included community work and a course on drug abuse. So soon after this, he embarked on this unlawful enterprise suggesting he has little regard for the law. He also defended the proceedings and has displayed no remorse or regret for his offending. His calling of other defendants to swear that he was not involved I found cynical. I do not see any basis for mitigating his sentence at all other than allowing him a few months discount because he has a family and one child is in poor health. The sentence I impose is one of 5 years and 5 months imprisonment backdated to the date of his remand in custody.
   
8. I do not consider him a likely candidate for rehabilitation as I have said and he has done nothing to justify any further leniency by way suspension of any part of his sentence.
   
9. In so far as the other three prisoners are concerned, the starting point for their involvement is three years. They pleaded guilty on indictment to being involved with cannabis of the same weight as that originally alleged in the case against Mr Huni but their roles were very different. At trial, the Crown reduced the weight of the cannabis in the case of Mr Huni and I approach their sentence on the same basis as Mr Huni in terms of the weight of the cannabis which is reflected in the presence of a very large number (3894) small plants. Without their presence and assistance, Mr Huni would have been unlikely to have planted the plantation to the extent he did or have protected it. They were an important part of the enterprise but plainly their responsibility is much less than that of Mr Huni who I am satisfied was the principal and was much older, being aged 34. All three young men have pleaded guilty. One of the men, aged 17, Mr Fakahua, at the time of the offending, was a first offender. None of them have probation reports which suggest they had achieved much at school or in employment and all seem to have come from difficult backgrounds. I consider that in giving what I regarded as false testimony for Mr Huni, Mr Fakahua and Mr Fusitu’a diminished any credit they might expect for remorse but I do accept Mr Siaosi Brown when in his short statement to me on sentence he indicated that he had come to see the error of his ways and would not reoffend.
   
10. The sentences I pass individually on these prisoners are;
    
    1. Mr Siliva’ai Huni
       

He is sentenced on each of the counts of possession and cultivation of cannabis to five years and five months imprisonment to be served concurrently backdated to the date of his remand in custody.

On the charge of possession of an unlicensed firearm, he is sentenced to two years and six months imprisonment to be served concurrently also.

On one count of possession of unlicensed ammunitions, he is sentenced 6 months imprisonment to be served concurrently also.

I also order that the cannabis be forfeited and its destruction take place under the Illicit Drugs Control Act, and the rifle and ammunition is forfeited to the Crown under the Arms and Ammunition Act.

2. Mr Siua Fakahua
   

He is sentenced, after taking into account his guilty plea and the fact he is a first offender to two years imprisonment on both offences of possession and cultivation of cannabis (both sentences to be concurrent) backdated to the date of his remand in custody on this offending. He gave evidence for Mr Huni which I found unconvincing and rather adversely affected any credit he might get for contrition. He is a first offender, however, and was aged only 17 at the time of the offending. The final 9 months of his sentences are suspended on the following conditions;

1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
   
2. He is placed on probation for the period of his suspension and is to live where directed;
   

100. He is to attend a course on alcohol and drug addiction under the direction of his Probation officer and the Salvation Army.
     

3. Mr Tevita Fusitu’a
   

He was aged about 18 at the time of the offending, was not in employment and had a limited education. He has a previous conviction for drug offending for which he received a sentence of probation. He showed some indication of regret to his probation officer for his involvement but I note he gave evidence, as did Mr Fakahua, in support of Mr Huni’s non-involvement in the plantation, which I found unconvincing. He indicated they had been caretakers for about a month and he expected to be paid for his involvement. He is sentenced to 2 years and three months imprisonment after his plea of guilty backdated to his remand in custody on both offences of possession and cultivation of cannabis (both sentences to be concurrent). The final 9 months of his sentences are also suspended on the following conditions;

1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
   
2. He is placed on probation for the period of his suspension and is to live where directed;
   

100. He is to undergo a course on alcohol and drug abuse under the direction of Probation and the Salvation Army.
     

4. Mr Saiosi Brown
   

He was aged about 17 at the date of the offending. He has a history of drug abuse (and I suspect was addicted), he admits for over five years, one conviction for a drug related offence and members of his close family are in the drug and criminal milieu. He has been a patient of Dr Mapa Puloka, forensic psychiatrist, in connection with drugs. He was not in employment and has had a limited education. He is sentenced to 2 years 3 months imprisonment backdated to the date of his remand in custody on both offences of possession and cultivation of cannabis (both sentences to be concurrent) after his guilty plea and expression of a desire to reform which I accepted. Likewise, the final 9 months of his sentence is suspended on the following conditions;

1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
   
2. He is placed on probation for the period of his suspension and is to live where directed;
   

100. He is to undergo a course on alcohol and drug abuse under the direction of Probation and the Salvation Army.
     

In his case, I direct that the Commissioner of Prisons refer him to Dr Puloka for any examination and or medication should he require this when in custody.

SATIO MATAKAIONGO and SIONE LATU

11. Mr Satio Matakaiongo, aged 32, and Mr Soione Latu, aged 33, were each the subject of a separate investigation during the same operation at a different location. Mr Matakaiongo’s motor vehicle was the subject of search outside the residence of Mr Latu and this revealed 1 plastic bag containing 89.2 grams of cannabis and a number of empty small bags contained in a larger bag. Also sums of money TOP $800, NZ $1430, US $20, and $A 10.00 were located. These were seized by the police as tainted property and confiscation orders have been made. At Mr Latu’s home, police found bowls with cannabis seeds germinating in them. Other cannabis seeds were located on the property as well as a large bag the accused had hidden in bush in which were located 133 small packets containing cannabis. The second accused had a total of 195.37 grams of cannabis in the bag and 109.8 grams of cannabis seeds. I consider both offenders fell into the second category of the Vea classification for cannabis offending that is the second (but not the most serious category) justifying a sentence of between 2 and 4 years imprisonment for smaller scale commercial cultivation and possession of cannabis for commercial supply.
    
12. In the case of Mr Matakaiongo, who has two previous convictions for possession of illicit drugs in 2016 for which he was fined, the starting point, I consider is three years and three months imprisonment and, after his early guilty plea and expression of remorse, I sentence him to two years and three months imprisonment on possession of cannabis backdated to his remand in custody. I observe he has a large family and has a plantation which he uses to support his family. I suspend the final 9 months of his sentence on the following conditions;
    
    1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
       
    2. He is placed on probation for the period of his suspension.
       
    100. He is required to undergo a course on alcohol and drug abuse under the direction of Probation and the Salvation Army.
         
13. I observe this is a sentence that is comparable with that imposed by Andrew J in R v Talia’uli [2007] TLR 226 where the accused, a first offender, was in possession of 54.21 grams which the Judge considered reflected an amount for commercial dealing. As a first offender, Andrew J, after a guilty plea and his willingness to assist authorities had reduced the starting point by a third from it would seem about three years to 2 years imprisonment with the final 6 months suspended upon condition that he undertook a drug and alcohol awareness programme under the Salvation Army.
    
14. As for Mr Latu, the amount of drug he was found in possession of is a larger amount and the possession of seeds, some germinating, suggests he was in the process of commencing to cultivate. He is a first offender, although I observe from his probation report, there is some indication that he has used cannabis at least personally for some years. I am satisfied as I have said that this amount was not for his own personal use but for commercial gain, as well. He has no convictions for drug use, and has expressed some remorse for his offending. I commence also with a starting point of 3 years and 3 months imprisonment, and, with his guilty plea and lack of previous convictions, I sentence him to two years and three months imprisonment on each count of possession to be served concurrently with one another. I also suspend the final 9 months of his sentences of imprisonment on the following conditions;
    
    1. He is not to commit any offences punishable by imprisonment during the period of his suspension;
       
    2. He is placed on probation for the period of his suspension;
       
    100. He is ordered to undergo a drug and alcohol abuse programme under the direction of Probation and the Salvation Army.
         

The cannabis located at both sites is to be forfeit and destroyed under the Provisions of the Illicit Drugs Control Act.

15. In relation to all the prisoners (aside from Mr Huni whose sentences were not suspended) they are warned that a failure to perform the conditions of their suspension may see them recalled to prison to complete their sentences of imprisonment.
    

C. B. Cato

NUKU’ALOFA: 29 MAY 2018. J U D G E