R v Vakapuna [2018] TOSC 81; CR 133 of 2018 (14 December 2018)

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

CR 133 of 2018

BETWEEN: REX

- Prosecution

AND: SIOSIFA VAKAPUNA

- Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mr. T ‘Aho for the Prosecution
The Accused in person

Date of Hearing: 14 December 2018
Date of Ruling: 14 December 2018

SENTENCING REMARKS

The offences

[1] On 6 November 2018 Mr. Vakapuna pleaded guilty on indictment to:

(a) One count of unlawful possession of illicit drugs, namely 36 grams of cannabis, contrary to ss. 4(a) and (b)(ii) of the Illicit Drugs Control Act for which the maximum penalty is a fine not exceeding $50,000 or imprisonment for a term of not exceeding 7 years or both;

(b) One count of possession of a .22 gun without a licence contrary to ss. 4(1) and (2)(b) of the Arms and Ammunition Act for which the maximum penalty is imprisonment for a term not exceeding 5 years; and

(c) One count of possession of ammunition without a licence contrary to ss. 4(1) and (2)(b) of the Arms and Ammunition Act for which the maximum penalty is imprisonment for a term not exceeding 5 years.

The facts

[2] Mr. Vakapuna was in Police custody following an incident where he was shot. Police undertook a search of his home on 10 May 2018 and found a modest quantity (36 grams) of cannabis leaves, seeds and very young plants under cultivation. They also discovered in the attic a hidden firearm along with ammunition for which Mr. Vakapuna does not hold a licence.

[3] Mr. Vakapuna co-operated with the Police and admitted that the cannabis, firearm and ammunition belonged to him. When arraigned he pleaded guilty to the offences. Mr. Vakapuna is not represented by Counsel but I have heard all he wishes to say in respect of the matter. I called for a pre-sentence report which has been provided.

[4] Mr. Vakapuna is 26 years old. By his own account he came from a stable family but left school in Form 4 to help his father in the bush to support the family. He married in 2013 and has a 3 year old daughter. He is separated from his wife and his daughter is cared for by his maternal aunty. His marriage was problematic, apparently as a result of both him and his wife taking drugs. He is in good health and is employed working in a restaurant.

[5] He is not a first time offender. In March 2018 he was convicted of possession of cannabis in the Magistrate’s Court and fined. He paid the fine but within the space of less than two months committed these offences.

[6] Mr. Vakapuna claimed to Probation that the cannabis was for his personal use but acknowledged to me this morning that he also gives it to his friends. He says he found the firearm and ammunition in the bush and the firearm was for protection and was hidden because he knew it was illegal to possess it. He also claims to be remorseful and seeks a further chance to enrol in a rehabilitation course and continue working to support his daughter. The pre-sentence report recommends a custodial sentence suspended on conditions.

Discussion

[7] I consider the lead offence is possession of cannabis (count 1). In arriving at an appropriate starting point for sentencing purpose I have had regard to a number of previous decisions. In Tuita v R [1999] Tonga LR 152 the Court of Appeal said:

In our view, a conviction for growing any significant amount of marijuana should carry a sentence within the range of three to five years imprisonment. That sentence would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation, along the lines of the judgment of this Court in R v Misinal0;(CA 13/A 13/99, 23 July 1999). Further, we consider that similar sentences should be imposed on persons convicted of possession for supply of amounts of uana that indicate a commercial scale operation...

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[8] That statement was approved by the Court of Appeal in Vea v R [2004] TOCA 7 but in addition the Court of Appeal said:

[15] The Court in Tere> identified thed three categories of offending. The first related to the growing of marijuana or as it is called here Indian hemp in small quantities foronal The Court said that in such cases a non-custodiatodial sentence was generally appropriate.iate. A similar approach is taken in relation to charges of possession for personal use. In a case of growing for small scale commercial purposes, the Court has said that a starting point of between two and four years may be appropriate and for large scale growing for commercial purposes, a sentence in excess of four years is appropriate. A similar scale of sentencing applies to possession of cannabis. The New Zealand Court of Appeal has also made it clear on numerous occasions that personal circumstances are generally irrelevant when sentencing for drug offending.

..

[18] We are also aware of the reported sentencing remarks made by Ward CJ in June 2001 with which we agree. The Chief Justice made it clear that possession of any drug including cannabis in a small quantity for personal use will in future result in a sentence of imprisonment although that sentence will be suspended for a first offender. He also said that in every case where there is evidence of supply to others the sentence will inevitably be a longer term of imprisonment and suspension of the sentence in any such case would not be appropriate. He said that anyone who sells drugs can expect to go prison for a very substantial length of time.

[9] In R v Le’ota (CR124 of 2016) the offender was in possession of 52.42 grams of cannabis plant, he had no previous convictions and pleaded guilty at the first opportunity. He was sentenced to 2 years imprisonment which was suspended subject to conditions.

[10] In R v Helu (CR 83 of 2017) the offender had prior convictions but not in relation to illicit drugs. He was found in possession of 39.65 grams of cannabis and was found guilty of the offence of possession only after a defended trial by jury. He was sentenced to 1 year and 6 months imprisonment but no part of the sentence was suspended.

[11] Had Mr. Vakapuna only been charged with possession of cannabis the appropriate starting point for sentencing purposes would in my view be around 2 years imprisonment. But in this case the offending is aggravated by the fact that Mr. Vakapuna is not a first offender, he acknowledged giving cannabis to friends (although I do not infer he did so on a commercial basis) and that he had in his possession an unlicensed firearm and ammunition for his protection. He considered that he required protection from an associate involved with drugs being the same person who had previously shot him. This created a very dangerous situation. The potential for offending involving serious injury or even loss of life is obvious. I therefore consider that the appropriate starting point for sentencing purposes is 3 years imprisonment.

[12] In terms of mitigation I regard with a degree of scepticism Mr. Vakapuna’s expression of remorse. However he is entitled to credit for his full cooperation with the Police, his early guilty plea and also for his honesty in answering questions put to him by the Court. I discount his sentence by 1 and 3 months for these factors and arrive at a sentence of 1 year and 9 imprisonment on count 1.

[13] On counts 2 and 3 of the indictment (possession of unlicensed firearm and ammunition) having regard to the authorities (see particularly R v Talia’uli [1997] Tonga LR 7, 8) Mr. Vakapuna shall be sentenced to 1 year and 6 months on count 2 and 6 months imprisonment on count 3 which shall be served concurrently with count 1.

[14] I must now consider whether to suspend all of some part of these sentences. Based on the principles in R v Mo’unga [1998] Tonga LR 154 I consider there are grounds to exercise my discretion because there is the potential for Mr. Vakapuna’s rehabilitation. He has held paid employment and it appears he is genuinely wishing to do the best for his daughter’s future. I believe that he should be given a final chance to rehabilitate himself.

[15] Initially I had not been minded to fully suspend the sentence but Mr. ‘Aho has impressed upon me that it is the Crown’s position the sentence should be fully suspended subject to conditions, including that Mr. Vakapuna be required to undertake community work. Mr. Vakapuna advises me that he is able to undertake community work. With some reluctance I have decided to accept the Mr. ‘Aho’s submission.

Result

[16] Mr. Vakapuna is convicted on each of the three counts in the indictment and he is sentenced as follows:

(a) On count 1 to 1 year and 9 months imprisonment;

(b) On count 2 to 1 year and 6 months imprisonment;

(c) On count 3 to 6 months imprisonment;

(d) All sentences shall be served concurrently;

(e) The sentences of imprisonment are fully suspended for two years subject to the following conditions:

(i) Mr. Vakapuna is not to commit any offence punishable by imprisonment during the period of suspension;

(ii) He is to be placed on Probation during the period of his suspension;

(iii) He is to complete 100 hours of community work undertaking general cleaning of public places on such days and at such times as directed by the Probation Service but no less than 4 hours on each occasion. He is to report to the Probation Service no later than 4pm on Tuesday, 18 December 2018 to make arrangements for the performance of the community work;

(iv) He is ordered to undergo an alcohol and drug abuse programme under the direction of Probation and the Salvation Army.

[16] The cannabis, firearm and ammunition are forfeit and are to be destroyed.

O.G. Paulsen

NUKU’ALOFA: 14 December 2018. LORD CHIEF JUSTICE