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R v Ngaue [2018] TOSC 38; Criminal Case 6 of 2018 (2 August 2018)
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 06 of 2018
BETWEEN: R E X - Prosecution
AND: JOHN THORN NGAUE - Defendant
BEFORE THE HON. JUSTICE CATO
Counsel: Mr Finau for the Prosecution
Mr Fili for the Prisoner
S E N T E N C E
- The prisoner, aged 28, John Ngaue, was charged with one count of possession of illicit drugs (methamphetamine) and one count of illicit
drugs (cannabis) contrary to section 4(a) of the Illicit Drugs Control Act. He pleaded guilty to both counts.
- On the 1st June 201,7 the police executed a search warrant at the accused’s rental premises in Kolomotu’a. The police found a considerable
sum of cash $1831.80 and a black bag hidden in the prisoner’s room containing cannabis and methamphetamine. In total the methamphetamine
weighed 14.5 grams and cannabis 43.89 grams. A weighing apparatus was also located.
- The accused was co-operative with the police. He has a previous conviction of abetment of common assault and housebreaking and one
in 2016 for possession of illicit drugs. This was a conviction in the Magistrates Court which involved a fine.
- His probation report indicates that he is married with three young children. He was a low achiever at school, not attending high school.
He had a deprived upbringing, and his only work appears to have been in plantation work. He served a term of imprisonment in 2008
for housebreaking and assault.
- This judgement will serve as a warning to those who engage in Tonga with the drug methamphetamine, whether it be for possession only
of small amounts or larger amounts, trafficking or supplying it to others, manufacturing, importing, exporting or dealing, in any
way, with this extremely dangerous and addictive drug that the courts will sentence offenders to severe punishment. Even for possession
of small amounts, offenders can expect to be sentenced to terms of imprisonment.
- Methamphetamine is a scourge and has effected a great deal of harm and misery on society in countries such as Australia and New Zealand
where it has become prevalent in the last couple of decades. It is highly addictive for users, is mind altering and is often accompanied
by acts of serious violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for
the user to fund the acquisition of the drug. Significant markets are to be found for those who chose to manufacture or import the
drug and large profits can be made by criminals who chose to engage in such activity. The courts have responded by imposing very
significant penalties on those who engage in this kind of activity.
- The maximum sentence in Tonga for offending involving possession of methamphetamine under the Illicit Drugs Act in respect of an
A class drug such as methamphetamine is a fine not exceeding $1,000,000 or imprisonment for a term not exceeding 30 years or both.
- For a class B drug such as cannabis, section 4 (a) (ii) provides that in respect of a drug in the quantity of one ounce or more to
a fine the maximum penalty is a fine not exceeding $50,000 or imprisonment for a term not exceeding 7 years or both.
- In this case, the amount of methamphetamine located was significant being 14.5 grams and the circumstances plainly indicated that
the prisoner was dealing this drug and selling it to others. The same is true probably for the cannabis which was also a significant
amount.
- The methamphetamine is plainly the more serious offending. It has become more noticeable in recent times, that methamphetamine is
featuring more commonly in these courts, generally, however, offenders being involved in small amounts of the drug. The drug has
the potential to cause society in Tonga immense damage. This Court, like others elsewhere, will impose severe penalties on those
who engage with this drug to deter this kind of offending and to protect Tongan society from the ravages of it. This court proposes
to adopt the approach taken in the New Zealand case of Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA), as a guide when sentencing for offending involving methamphetamine In both New Zealand and Tonga, legislation has been enacted containing
heavy penalties with New Zealand having a maximum sentence of life imprisonment and Tonga a sentence of 30 years for the most serious
offending. The level set in New Zealand by the Court of Appeal falls into four general bands. Although being involved with supply
offending, the bands remain useful guides for all manner of dealing in this drug.
- The band levels are;
- Band one; less than 5 grams, presumption low level supply; starting points 2-4 years imprisonment;
- Band 2; 5-250 grams, presumption supplying commercial quantities, 3-9 years imprisonment;
- Band 3; 250-500 grams or more, presumption supplying large commercial quantities, 8-11 years imprisonment;
- Band 4; 500 grams or more, supplying very large commercial quantities, 10 years to life imprisonment.
In Tonga, the maximum sentence for a band four sentencing would be thirty years.
- In the present case, the starting point for 14.5 grams is in my view about 4 years and 6 months imprisonment. The only mitigating
factors are his guilty plea and professed remorse. The sentence I impose for possession of methamphetamine is 3 years and 6 months
imprisonment. I suspend 9 months of this sentence on the following conditions;
- He is not to commit any offences punishable by imprisonment for the period of his suspension;
- He is not to take alcohol or consume drugs during the period of his suspension;
- He is to attend, under the direction of Probation, a course on drug abuse.
His sentence is backdated to the date he was remanded in custody for this offending.
He is warned that a failure to abide by the conditions of his suspension may mean he has to return to prison to serve out the remainder
of his sentence of imprisonment.
- On the charge of possession of illicit drugs (cannabis), after consideration of mitigating factors, he is sentenced to 18 months imprisonment
to be served concurrently with the count of possession of illicit drugs (methamphetamine).
C. B. Cato
DATED: 02 AUGUST 2018 J U D G E
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