R v 'Otuhouma [2020] TOSC 100; CR 61 of 2020 (11 November 2020)

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

CR 61 of 2020

BETWEEN: R E X
-Prosecution

AND: LISIATE ‘OTUHOUMA
-Accused

SENTENCE

BEFORE: JUSTICE CATO

Counsel: Mr Tu’utafavia for the Prisoner

Mr Lutui, DP, for the Crown

Date of sentence: 11 November 2020

1. The prisoner, Lisiate ‘Otuhouma, appeared before me for sentence after being found guilty by me in a Judge alone trial and convicted on the 29th September 2020 of one count of possession of an illicit drug contrary to section 4(a) (iii) of the Illicit Drugs Control Act . I remanded him in custody for sentence today. Particulars of the offending were that on or about the 17th April 2019 at Fahefa he did knowingly and without lawful justification possess a class A drug namely methamphetamine when he had in his possession 3000.4 grams of methamphetamine, that is about three kilos of methamphetamine.
   
2. The facts and findings are set out in my verdict of the 29^th September 2020. The prisoner at the time of the offending was aged 28. On the 17th April 2019, the police received reliable information that drugs, suspected to be methamphetamine, were being stored at the accused’s residence at Fahefa. At about 9.21, the police went to search the residence, and found a taped bucket containing several packets of methamphetamine known as ice weighing in total 3,090.4 grams. I rejected the accused’s explanation that he was the recipient of the bucket but did not know it contained drugs. My reasons are set out in the verdict. I expressly said in para 11 that I, would unless advised otherwise, approach the sentencing on the basis that the accused, being in possession of 3kgs of methamphetamine, an amount that was capable of being distributed by him personally or on behalf of another for very considerable financial gain. I said that I did not accept on his uncorroborated evidence alone that he was merely holding it for another temporarily. I invited further response.
3. Mr Lutui for the prosecution in his sentencing submission said that the methamphetamine found was clearly for commercial supply either by the prisoner or someone associated with the prisoner for considerable financial gain. The Crown submitted there is no evidence of pressure or naivety. Rather the Crown submits that the prisoner knew what he was doing when he possessed such a large quantity of methamphetamine, and must have been aware that the intention was to sell it and profit from the sale. He further submitted that but for the Police finding this large cache of drugs, this would have caused significant damage to the Kingdom and its people.
4. I agree. For several years now, this Court has denounced methamphetamine in the Kingdom and repeatedly said that those who chose to possess large quantities of methamphetamine do so at their peril and can expect condign punishment to follow if apprehended and convicted. Methamphetamine has the potential to do great harm to the Tongan community, in terms of addiction, and the consequent causation of collateral crimes in order to fund a habit. Unlike the experience in other countries, until the last few years, methamphetamine, was slow to gain traction but it is plain that it now, despite our condemnation of this kind of offending and the Police arresting this development, it appears to have gained a more significant presence in Tonga. There are limited remedial facilities available to address drug abuse, here and those facilities that do exist are likely to be placed under much greater pressure unless this trend is reversed.
5. Tonga will punish those severely who possess large amounts of methamphetamine. New Zealand cases such as Fotu [2005] NZCA 278; [2006] 2 NZLR 72(CA) and Zhang v R [2019} NZCA 507 are useful guidelines for sentencing here. Band 5, namely amounts over 2 kilograms are in New Zealand said to involve sentences of 10 years to life. The maximum sentence of imprisonment in Tonga is thirty years. In this case, I accept the Crown submission that the prisoner was involved in possession for distribution either as a principal or as a trusted confederate and that the amount involved here was likely to cause great damage to Tonga if the police had not located the drug in time to prevent its distribution.
6. In an earlier sentence, R v Mangisi Cr 10/2018, I sentenced the prisoner who was 60 years of age and was a first offender to 12 years and six months imprisonment backdated to the date of his remand in custody for possession of nearly two kilograms of methamphetamine. He had unsuccessfully defended the charges, and was a first offender. I also recognized that his life in prison would be made harder by the fact that it would be difficult for his wife and family to visit him, in Tonga. In his case, I set a starting point of 14 years imprisonment to reflect the large amount of drug he was found in possession of and had tried to export out of Tonga, before he had been arrested at the airport.
7. In this case, the Prosecution mentioned a starting point of 15 and a half years. I am content to adopt a slightly higher starting point of 16 years to represent an uplift from Mangisi for the increase in drug of a kilo. Mr Tu’utafaiva candidly informed the Court, when asked about what he would submit was an appropriate starting point, that 16 years was the starting point that he had advised to which he had advised his client he would be exposed.
8. I have read the probation report which indicated that the prisoner is aged 29 and is married with a son in Faheva. He works as an engineer in a plantation, but has no formal qualification. He has no previous convictions. He is said to express remorse for his offending, which I find surprising given his decision to defend the proceedings and it seems disinclination to co-operate further with the prosecution. I allow him one year’s imprisonment by way of mitigation for his previous good character. I see no other factors that would warrant any further mitigation. The sentence I impose upon him is 15 years imprisonment, backdated to the date of his remand in custody for this offending.
9. I consider that the final 2 years of his sentence should be suspended on the following terms;
   1. He is not to commit any offences punishable by imprisonment during the period of his suspension;
   2. He is placed on probation to live where directed;
   100. He is not to consume alcohol or drugs during the period of his suspension;
   4. He is to undergo a course on drug rehabilitation under the direction of Probation.
10. He has been warned that a failure to abide by the terms of his suspension may see him returned to prison to serve out the balance of his term of imprisonment.
    

C. B. Cato KC
NUKU’ALOFA: 11 November 2020 J U D G E