R v Satini [2020] TOSC 106; CR 227 of 2019 (27 November 2020)

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

CR 227 of 2019

BETWEEN:

R E X - Prosecution

AND:

HARRIS ISBELL SATINI - Accused

SENTENCE

BEFORE: JUSTICE LANGI

Counsel: Ms. Halaevalu Moa for the Crown Prosecution
The Accused In Person

Date of Sentence: 27 November, 2020

1. THE CHARGE
   

1. The defendant was charged with one count of possession of illicit drugs (methamphetamine) and one count of possession of illicit drugs (cannabis) contrary to section 4 (a) of the Illicit Drugs Control Act;
2. After a defended hearing the accused was found guilty of possession of methamphetamine and not guilty to possession of cannabis.
3. He stands before me this morning to be sentenced.
   

2. THE OFFENDING
   

4. On 05 October 2018 the police executed a search warrant at the accused’s residence at Vaini. When they arrived at the accused’s house they were informed by occupants in the house that the accused was doing some construction work at the next-door neighbours’ house.
5. The police went to look for the accused and one of the police officers saw the accused trying to hide something inside a packet of Winfield cigarettes. The police officer ran over and took the packet of Winfield off the accused. The police officer opened the packet of Winfield and found a plastic bag of methamphetamine inside.
6. The police searched the rest of the house and found other illicit drugs in various places inside house. He was arrested and charged accordingly.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

7. The Crown submits two comparable cases to assist me in determining the appropriate sentence:
   1. R v Vilimoa Afu CR 177/2020 – the accused pleaded guilty to 0.11 grams of methamphetamine. He had no previous convictions and had cooperated with the police. The Crown had recommended a non-custodial sentence by suggesting good behaviour bond but this was not accepted by the Lord Chief Justice Whitten who reinstated the view of the Court of Appeal in R v Maile [2019] TOCA 17, whereby they endorsed the view expressed by Cato J in R v Ngaue CR 6/2018 that:
      1. Methamphetamine is a scourge to societies everywhere that has affected a great deal of harm and misery; and
      2. The distribution and use of methamphetamine in Tonga is a significant government and community concern;

The Court of Appeal in Maile further commented that in prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed and therefore those involved with methamphetamine in any capacity, and even small amounts, can expect to receive a custodial sentence. LCJ Whitten further opined that the prime pre-requisites for the imposition of a good behaviour bond under section 198 of the Criminal Offences Act is where the offence ‘is of a trivial nature’ and that in light of the Court of Appeal’s remarks in Maile above, possession of methamphetamine will rarely ever be regarded as a trivial offence. The accused was therefore sentenced to 6 months imprisonment which was fully suspended for 12 months on conditions.

2. R v Master Tome Suasau CR 120/2020, Unreported – the accused in this case pleaded guilty to possession of 0.48 grams of methamphetamine. The mitigating factors were that he pleaded guilty at the first available opportunity, was a first-time offender and he had cooperated with the police. I had set a starting point of 12 months imprisonment after consideration of the comparable cases submitted by the Crown with similar amounts of methamphetamine. I deducted 4 months off the starting point for the mitigating factors and sentenced the accused to 8 months imprisonment. The sentence was fully suspended on conditions.
   

4. AGGRAVATING FACTORS
   
   8. The Crown submits the aggravating factors as follows:
      1. Possession of methamphetamine is a serious offence;
      2. The accused did not cooperate with the police;
      100. The accused is not a first-time drug offender;

9. I consider the fact that the accused has previous convictions for possession of illicit drugs a serious aggravating feature in this case. However, whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing the accused twice for the same offences on which he had previously been convicted and sentenced. In R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 Sir Michael Meyers CJ stated at 597

“The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that he previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and the prisoner’s previous convictions are involved in the question of his character. Further the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly”.

10. This view was re-affirmed in R v Ward [1976] 1 NZLR 588 where it stated that views of the court in Casey quoted above was an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders. The Court of Appeal in Ward further stated that “regard may be had to an offender’s record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles: on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences”.
11. I am mindful that any additions made to the sentence in this case does not punish the accused twice for offences which he has been convicted and sentenced, but his previous convictions for possession of illicit drugs (cannabis) do indicate a predilection to commit the particular type of offences of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
    

5. PRE-SENTENCE REPORT
   
   12. Mr. Satini is 45 years old and is the 3^rd child of 7 children born to Ma’afu Satini and ‘Akosita Satini of Vaini.
   13. He was raised in the Mormon faith where his parents were lay preachers of the church.
   14. In 2005 the accused’s parents and rest of his siblings migrated to New Zealand while he remained in Tonga to look after their home.
   15. He is married to Mrs. Mele Satini and they do not have any children. His wife is an American citizen and resides in the United States where she is employed as a teacher.
   16. In terms of education, the accused had attended Tonga High School from 1987 – 1989. He then went to Liahona High School where he completed his secondary education and passed both Form 5 and Form 6.
   17. He told the probation officer that he accepts the verdict and that he uses illicit drugs to help him with his daily work. He adamantly denies supplying or selling any drugs from his home.
   18. The probation officer recommends that an order for Alcohol and Drug Awareness course be added to any sentence that is given. The probation officer is of the opinion that the accused is truly remorseful.
       
6. DISCUSSION
   

19. The alarming increase in drug-related offences in our country is of great concern to the courts, the government and the general public. It is no secret that methamphetamine or ice as it is most commonly known is becoming increasingly common in Tonga. Our communities are starting feel the effects of this insidious drug through the commission of serious offences such as burglary by those who use them to fund their addiction. Methamphetamine has wreaked havoc in many overseas communities and as evidenced by the number of cases that have come before the courts, it has now made its way into our small island Kingdom and we are now feeling its destructive nature.
20. In R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 the court stated the following in relation to methamphetamine:

“Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour; and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved.”

21. Similarly, in R v Ngaue [2018] TOSC 38; Criminal Case 6 of 2018 (2 August 2018), Cato J stated that:

“methamphetamine is a scourge and has affected 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 serous 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 choose to engage in such activity. The courts have responded by imposing very significant penalties on those who engage in this kind of activity”

22. The comments by Cato J in Ngaue were endorsed by the Court of Appeal in Maile (above) when it stated that:

“Although Mr. Maile was found in possession of only a small quantity of methamphetamine his offending was serious as this is a Class A drug. In prescribing a maximum penalty of 30 years imprisonment for possession of methamphetamine the Legislature has expressed a clear intention that significant penalties are to be imposed. The distribution and use of methamphetamine in Tonga is a significant Government and community concern...”

23. The Court of Appeal in Maile went on to state that by prescribing a maximum sentence of 30 years imprisonment Parliament obviously shares the concerns raised by Cato J in Ngaue and has sent the courts a message of its own, namely get tough on drug offenders. The courts response should be message received loud and clear.
24. The unequivocal message that must be sent out to the youths and the people of this community is that if you involve yourself in drug offending you will receive an imprisonment term as a general rule and the only question for the judge is how long is appropriate. Indeed, this was the view held by Lord Chief Justice Whitten in Afu when he declined the Crown’s submission for the accused in that case to be given a non-custodial sentence for possession of methamphetamine. His Honour re-instated the views of the Court of Appeal in Maile where it was stated that even for small amounts of a Class A drug one can expect to receive a term of imprisonment.
25. In R v Mangisi CR 10/2018-- Cato J discussed sentencing bands previously applied in New Zealand under Fatu (supra) and then later revised by the Court of Appeal in Zhang v R [2019] NZCA 507. In Fatu, the sentencing band for possession of illicit drugs less than 5 grams was 2 – 4.5 years. In Zhang, this was reformed to community – 4 years’ imprisonment.
26. The Crown submits a starting point of 12 months imprisonment based on the two comparable cases discussed above. However, the comparable cases referred to by the Crown involved accused persons who had pleaded guilty at the first available opportunity and who were first-time drug offenders. Additionally, the amount of methamphetamine in both the comparable cases were under 1 gram.
27. In previous sentences for possession of methamphetamine under 1 gram I have set the starting point at 12 months imprisonment even for very minimal amounts (R v Tafuna CR 198/20, R v Angilau CR 103/20, R v Suasau CR 120/20, R v Lave CR 185/20). This is to reflect the views of the courts towards this destructive and dangerous drug and to emphasize the views stated by the Court of Appeal in Maile and Cato J in Ngaue.
28. I believe that an increase should be made to the starting point for possession of methamphetamine weighing between 1 – 2 grams to 18 months imprisonment. Given that the accused in this case was convicted after a defended hearing, I increase the starting point in this case to 2 years imprisonment.
29. I further increase the starting point by 6 months for his previous convictions for possession of cannabis as an aggravating feature relating to him and for which he was convicted twice. The starting point is therefore two and a half years imprisonment.
30. The Crown submits that there are no mitigating factors in this case. However, after interviewing the accused I am of the opinion that he is remorseful and genuinely wishes to reform himself. He told the probation officer that he regrets what he has done and accepts the verdict of the court. For his remorse I deduct 3 months from the starting point. His total sentence is therefore two years and three months imprisonment.
31. Turning to the question of whether I should suspend any part of the sentence, I have considered the principles in Mo’unga v R [1998] Tonga LR 154 and note that a suspended sentence may be appropriate where an offender is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities and where the accused has pleaded guilty at the earliest opportunity.
32. Though the accused did not cooperate with the police and was convicted after a defended hearing I am of the view that if given another chance the accused will take the opportunity offered by a suspended sentence to rehabilitate himself. I accept the probation officers view that he is remorseful. I am also mindful that the accused has not had the benefit of being part of any kind of rehabilitation programs such as that offered by the Salvation Army Drugs and Alcohol courses. If he had undertaken these programs before I would not have been convinced to suspend his sentence. However, I believe that the minimal amount of methamphetamine seized supports his contention that the illicit drugs were for his own personal use and I believe there is still hope for him with the right assistance to overcome his addiction and become a law-abiding citizen.
    

7. SENTENCE
   33. On the count of possession of a Class A drug the accused is convicted and sentenced to two years and three months imprisonment;
   34. The sentence is fully suspended on the following conditions:
       1. Not to commit any further offences punishable by imprisonment for a period of 2 years;
       2. The accused is to be placed on probation during the period of his suspension;
       100. The accused is to complete the Salvation Army Drugs and Alcohol Awareness Program and Life Skills Course within the first year of his suspension;
       4. The accused is not to consume alcohol or take illicit drugs during the period of suspension;
       5. The accused is to undertake 70 hours of community work as directed by the probation officer. He is to report to the probation office at 9.30am on Monday 30 November 2020.
   35. As requested by the Crown, I further order that all illicit drugs seized from the accused, both methamphetamine and cannabis, be destroyed. The cash seized from the accused totalling $1007.00 is forfeited to the Crown.
   36. As a final comment Mr. Satini, you are very fortunate that your sentence is fully suspended. The fact that you have previous convictions for possession of illicit drugs should require you to serve some period in prison especially since you pleaded not guilty to the current charge you have been convicted of. However, the sentence I have imposed was arrived at after much consideration in balancing the preventive purpose of punishment against treating the root of the problem (addiction) through rehabilitation and giving the offender an opportunity to reform. I regard the sentence as lenient but I am offering you a lifeline and an opportunity to reform and cease your involvement with illicit drugs. You should be aware that if you breach any of the conditions of your suspension you may be required to serve your sentence of imprisonment. If you appear before the court again on similar offences it is very highly likely that you will be sent to prison.
       

‘E. M. L Langi
NUKU’ALOFA: 27 November 2020 J U D G E