R v Moimoi [2020] TOSC 102; CR 54 of 2020 (25 November 2020)

IN THE SUPREME COURT OF TONGA

CRMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 54 of 2020

REX

-v-

DANIEL BRUNO MOIMOI

BEFORE : HON. JUSTICE NIU

Counsel : Mrs Lute Fakatou Aonima for the Crown

Mr Siosifa Tu’utafaiva for the Accused

Probation Report: by Tito Kivalu on 28 October 2020

Submissions : by Mrs Aonima on 4 November 2020

by Mr Tu’utafaiva on 20 November 2020

Sentencing : 25 November 2020

SENTENCING

[1] Daniel Moimoi, you now appear before me for sentence on 3 charges of which I have found you guilty on 30 September 2020, namely –

(a) possessing 225.67 grams of cannabis,
(b) cultivating 4 cannabis plants, and
(c) possessing 500 .22 rifle bullets and 52 .45 bullets without licence,

all at Tofoa on 29 April 2019.

[2] An informer informed the police that a person had just purchased some large size bullets from a container at your place at Tofoa. The police carried out a search of your place without warrant right away, as a result of which the above 3 things were found there. The 225.67 grams of cannabis were found in a compartment of the car you were using, and in a bag which was also in the car. The 4 cannabis plants were found growing in home made pipe pots (similar to empty pots found in the container as well) which were placed amongst the saafa bush near the container. The bullets were found in boxes on a shelf inside the container as well.

Probation Report

[3] The probation officer, Tito Kivalu, spoke with you, your wife and your mother and he has outlined the information he has received and from the letters which he has received from six people who have spoken in your favour and which he attached to his report.

[4] He says you were born in 1985 and that you have a sister but your parents broke up in 1994 and your mother had to bring you two up herself. He says that you attended Tonga College up to form 5 which you successfully completed. You then worked for Nuku’alofa Electronics in 2002 and at the same time took a correspondence course with Ashworth College in Georgia, U.S.A from which you attained a Diploma in Electronic in 2005. You also took short term training courses in Computer and Business Management at the USP Tonga Campus.

[5] He says that you went to New Zealand in 2012 and worked for about a year and that in 2013 you married your wife there and that you have returned and have been together up to now.

[6] He says that you are now the marketing and operation manager of the company, PAO Plumbing Services Ltd and that you earn $700 per week to support yourself and your wife, who takes care of your home.

[7] He says that you do not have your own house or motor vehicle, and that you and your wife are only occupying the dwellinghouse of your sister and her husband at Tofoa for them whilst they are overseas and that you have been using other people’s vehicles as well.

[8] He says that you told him that you had used drugs before but that you have stopped and are no longer taking them. He says that you have mental health problems for which you are taking medications. In a letter from Dr. Pita Pepa which was attached to the report, Dr. Pepa says that you have anxiety-depression (ICD10 coding – F41.8) since 2016, and that you were taking prozac and clonazepam but that now you are only on prozac.

[9] The probation officer says that you show little remorse for your actions concerning these present offences.

[10] He however recommends that this Court may consider a fully suspended imprisonment sentence on conditions, one of which is that you serve 80 hours community service and to attend and complete the alcohol and drug awareness course of the Salvation Army.

[11] The office manager of PAO Plumbing Services speaks very highly of you and your indispensable service to the company and to the customers. Your sister speaks of your help to her to look after her home for her and to keep up the mortgage payments to the bank for the house for her during her absence in the US.

[12] Your town officer from Fasi says you are trustworthy and hardworking in the village activities and projects. Your town officer from Tofoa says that you are well behaved and are a good member of the village.

[13] The Fasi community police president says that you are the vice president and that you are most reliable and most helpful to the village.

[14] Finally there is a letter from Manfred Schuster, 88 years of age who speaks very highly of your care and attention to him and his bed-ridden wife who has had a stroke. He says you regularly attend and do their shopping and house repairs for them and are most grateful for your kindness to them.

Crown submissions

[15] Mrs Aonima, Crown counsel, says that there are 4 aggravating factors against you:

(a) you did not plead guilty, but have been convicted after trial,
(b) seriousness of your offences – 225.67 grams of cannabis and 552 bullets found in your possession,
(c) you have shown no remorse for what you have done, and
(d) you did not cooperate with the police.

Against that, you only have one mitigating factor, namely, that this is your first offence.

[16] She refers to the following cases:

(a) Fa’aoa (CR 79/16) pleaded guilty to having 116 grams of cannabis in 224 small plastic packs and cash of $2,194, first time offender. Sentenced to 18 months imprisonment but fully suspended on condition, inter alia, to undertake drug and alcohol awareness course and serve 60 hours community work.
(b) Latu (CR 109/17) – 21.33 grams of cannabis and 4.53 grams of meth. In respect of the cannabis, he was sentenced to 8 months imprisonment.
(c) Tupou (CR 57/17) – 264 grams of cannabis – pleaded guilty. Sentenced to 18 months imprisonment but fully suspended on conditions, 70 hours community service.
(d) Ta’ufo’ou (CR 62/17) – 635.54 grams of cannabis – pleaded guilty – sentenced to 2 years 3 months imprisonment, with last 12 months to be suspended.
(e) Taulua (CR 73/18) – 1,150.34 grams of cannabis – pleaded guilty. Sentenced to 2 years 3 months imprisonment with last 15 months suspended for 2 years.
(f) Talia’uli [1997] Tonga LR7 – possession of pistol and bullets without licence – sentenced to 2 years for the pistol and 6 months for the bullets but both suspended for 3 years.
(g) Liou [2010] Tonga LR181 & AC 21/2010 – possession of arm and bullets – pleaded guilty. Sentenced to 12 months imprisonment but fully suspended and fined $3,000 to be paid in 30 days.
(h) Vakapuna [2008] TOSC 18 (CR 133/18) – 24 .22 bullets – cooperated, pleaded guilty – previous offence – sentenced to 6 months imprisonment but suspended to serve 100 hours community.

[17] Mrs Aonima says that your offence comes within the category of small scale operation which has a range of 2 to 4 years imprisonment. She recommends a starting point of 3 years but with a reduction for having no previous conviction, and that the balance be suspended. She also says that as for the ammunitions conviction a fine should be appropriate. She says that the cash found in the search be forfeited to the Crown, and that all the drugs be destroyed by the police.

Your counsel’s submissions

[18] Your counsel, Mr Tu’utafaiva, has made submissions on your behalf. First, he says that the correct weight of the cannabis is as stated in the charge of which you have been convicted as 225.67, not 445.99 grams as stated in the Crown’s submissions. Secondly, he says that much of that weight would have consisted of the branches, stems and roots of the 4 plants, which although are still cannabis, do not contain tetrahydrocannabinol (THC) which is the main active ingredient of cannabis. I may also add that that weight was also of the green fresh plant and not the dried leaves of the plant and would therefore be much heavier than if only the leaves were weighed after they are dry and ready for use or sale.

[19] Thirdly, he says that two cases referred to by the Crown counsel are the relevant cases for this case, namely Fa’aoa’s case and Tupou’s case. In the Fa’aoa case, there was 116 grams of cannabis and starting point was 2¹/₂ years. In the Tupou case, there was 264 grams of cannabis. In both cases the sentence imposed were 18 months imprisonment but fully suspended in each case but on conditions.

[20] Fourthly, he points out that both the probation officer and the Crown counsel are of the view that the imprisonment sentence be suspended, but that a condition be imposed that you attend and complete the Salvation Army’s drug and alcohol awareness course.

[21] Finally, he points out that this is your first offence in your 35 years of age.

Consideration

[22] In considering all these points that have been raised by both counsel and by the probation officer, I have to balance them against the need for protection of the society against the ravages of drugs which are prevalent in Tonga today.

[23] I also have to consider that in your case you had dried cannabis leaves in an empty coffee bottle and you also had 2 “packs” of cannabis leaves in the yellow bag together with the Tongan tobacco packs. That to me indicated that you had the 2 packs of cannabis for sale. That would make your possession of the cannabis as possession for purpose of sale, albeit a small scape operation. And the range of penalty for that is 2 to 4 years imprisonment.

[24] I consider that a starting point of 3 years is appropriate for the cannabis offence. In the Tupou and Fa’aoa cases, both accused pleaded guilty and cooperated with the police. In your case you pleaded not guilty and did not cooperate with the police. The only factor in your favour is that you have had no previous conviction, for which I would deduct 6 months, leaving 2¹/₂ years imprisonment.

[25] As to suspension of that sentence, I consider that you have shown rehabilitation in your active participation in the community, especially the village police activities since the commission of these offences in April 2019. I am also impressed with your very conscientious and selfless assistance to Mr and Mrs Schuster. Not only have you shown rehabilitation you have shown kindness to others. You have thereby shown that you can be trusted not to reoffend in the future, for which purpose the enactment of suspension of sentence was intended.

[26] As for the ammunition offence, I agree with Mrs Aonima that a fine be appropriate because I consider that you can pay it and that the bullets be forfeited.

Forfeiture of money

[27] As for the forfeiture of the cash found in the search, under S.33 of the Illicit Drugs Control Act, as requested by Mrs Aonima, I agree because it is mandatory that I order it. S.33 provides as follows:

“33. Where a person is convicted of an offence under this Act all articles, goods or property if any, in respect of which the offence was committed and in the possession of such person, shall be forfeited in addition of any penalty imposed under this Act.”

[28] There were 4 sums of money found:

(a) $180.00 in the bedroom of yourself and your wife,
(b) $169.40 found inside the yellow bag in the car,
(c) $46.30 found inside the car, and
(d) $50.00 found in your trouser pocket.

[29] I consider that all the cash in (b), (c) and (d) were in your possession because you were the one using the car and you had the car locked when you got out of it that day. You had those monies in your possession. As to the $180 found in your and your wife’s bedroom, I do not think that you had it in your possession, at least alone. I consider that the words “and in the possession of such person” mean “the exclusive possession” of such person.

[30] Accordingly, I consider that the 3 sums of money, (b) (c) and (d), which come to a total of $265.70 shall be forfeited to the Crown.

Orders

[31] Accordingly, I make the following orders:

(a) For the offence of possession 225.67 grams of cannabis, you are sentenced to 2¹/₂ years imprisonment.
(b) For the offence of possession 4 cannabis plants, you are sentenced to 1 year imprisonment.
(c) Both sentences (a) and (b) shall be concurrent and shall be fully suspended for 3 years from today.
(d) For the offence of possession 500 .22 bullets and 52 .45 bullets without licence, you are fined $1,000 which you shall pay within 2 months from today, in default of which you shall serve 3 months imprisonment.
(e) The police shall forthwith destroy the cannabis which are the subject of these offences.
(f) The 500 .22 bullets and 52 .45 bullets are forthwith forfeited to the Crown.
(g) The sum of $180 found in the bedroom shall be returned to the accused and his wife. The remaining total sum of $265.70 shall forthwith be forfeited to the Crown.

Niu J

Nuku’alofa: 25 November 2020 J U D G E