R v Moli [2020] TOSC 107; CR 215 of 2020 (27 November 2020)

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

CR 215 of 2020

BETWEEN:

R E X - Prosecution

AND:

SIONE MOLI - Accused

SENTENCE

BEFORE: JUSTICE LANGI

Counsel: Mr. Joe Fifita 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 namely 0.25 grams of methamphetamine, contrary to section 4 (a) of the Illicit Drugs Control Act and one count of possession of a Class B drugs namely 0.24 grams of cannabis;
2. On 06 October 2020 he was arraigned and pleaded guilty to both counts.
3. He now appears before me for sentencing.
   

2. THE OFFENDING
   

1. On or about 14 September 2019 at around 3.45am the Drugs Enforcement Taskforce (DET) together with the police Tactical Response Group conducted a search without a warrant at the accused’s residence at Nukunuku.
2. When they arrived, the police saw the accused and the co-accused Muimui He Lotu ‘Amaka trying to run from them but they were caught and brought back into the house.
3. When the house was searched the police found two small plastic bags of cannabis on a table inside the house and a test tube containing methamphetamine on a mattress in the living room;
4. The accused and Mr. ‘Amaka were both arrested and the accused admitted to being in possession of the illicit drugs found inside his residence.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

5. The Crown submits the following as aggravating factors:
   1. The seriousness of the offending (being in possession of a Class A and Class B drug);
   2. Concern for the rapid increase of drug cases in the Kingdom and the need for a deterrent sentence;
6. They submit the following as mitigating factors in support of a reduction of sentence:
   1. The accused pleaded guilty at the first available opportunity;
   2. The accused is a first-time drug offender;
   100. He is remorseful for his actions;
7. The Crown also submits two comparable cases to assist me in determining the appropriate sentence:
   1. R v Maile AC 23/2018 – in this case respondent pleaded guilty to possession of 0.52 grams of methamphetamine. He was discharged without a conviction by the sentencing judge. The Court of appeal allowed the Crowns appeal on sentence and imposed a sentence of 9 months imprisonment which was fully suspended on conditions;
   2. R v Fainga Lavulo Tengange (Unreported, Supreme Court, CR 231 of 2020, 6 March 2020, LCJ Whitten) – the accused pleaded guilty to possession of 0.38 grams of methamphetamine. He had no previous convictions. He was sentenced to 6 months imprisonment which was fully suspended for 1 year on the following conditions:
      1. Not to commit any further offence punishable by imprisonment;
      2. Be placed on probation and to live where directed by the probation officer;
      3. Not to consume any alcohol or drugs;
      4. Complete the Salvation Army drug awareness program;
      5. Perform 30 hours of community work.
         

4. PR-SENTENCE REPORT
   

8. Mr. Moli is 34 years old and is the second of three children born to the late Henele Moli and Fane Moli.
9. He was born in Australia while his father was undertaking studies at Perth University. After the accused’s father graduated they returned back to Tonga.
10. When the accused was 11 years old his family migrated to New Zealand where he began fall into trouble. He was then imprisoned for fives years in the Spring Hill Prison in New Zealand for drug related offences. He was required to complete treatment for drug and alcohol problem at the Drugs Treatment Unit inside prison. When that was completed he was then deported back to Tonga in 2012.
11. The accused is married with 2 children who are all in New Zealand.
12. In relation to his education, he completed Primary education in Tonga before they migrated to New Zealand. He then attended Cashmere High School in New Zealand where he passed the Form 5 level but did not pass Form 6.
13. In relation to the offending, the accused confessed to taking illicit drugs for his own personal use. He told the probation officer that he agrees to the summary of facts submitted by the Crown. He says that he is truly remorseful and wishes for an opportunity to reform.
14. Two reference letters were submitted on behalf of the accused. The town officer of Nukunuku speaks highly of the accused as an active member of the community who often assists in all community projects.
    

5. DISCUSSION
   

15. As I have often stated in previous cases sentenced by me, the courts attitude to drug offending has been well publicised and everyone in our community should be aware of it by now. It is no secret that our small island Kingdom is currently feeling the effects of the insidious nature of methamphetamine and the danger it poses. It is a grave concern to the courts to see such an increase in the number of cases coming before us involving methamphetamine. This drug seems to be the flavour of the moment for those who can afford it. A dangerous and alarming trend which has been commented on by the courts in previous cases such as R v Ngaue [2018] TOSC 38; Criminal Case 6 of 2018 (2 August 2018), R v Maile AC 23/2018, R v Vilimoa Afu CR 177/2020, to name only a few. As a result, the courts have quite properly taken a tough stance in relation to people coming before it involved in the use or distribution of methamphetamine.
16. The unequivocal message that must be sent out to the youths and the people who use or deal with illicit drugs 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 position of the Court of Appeal in Maile which was emphasized and re-instated by LCJ Whitten in Afu.
17. The Crown submits a starting point of 12 months imprisonment for the methamphetamine count. I agree that 12 months is an appropriate starting point. In previous cases sentenced by me I have set the starting point for possession of any amount of methamphetamine under 1 gram at 12 months imprisonment.
18. For his early guilty plea and the fact that he is a first-time drug offender I deduct 6 months from the starting point leaving a total of 6 months imprisonment. For the aggravating factor of using his home to conduct the unlawful activities I add three months to the starting point. This leaves a total of 9 months imprisonment.
19. For the second count of possession of a Class B drug (cannabis) the accused is sentenced to 3 months imprisonment to be served concurrent with count 1.
20. Turning to the question of whether I should suspend any part of the sentence, the Crown submits a full suspension of any sentence given on conditions.
21. 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.
22. I also accept that the accused is remorseful and that the possession of the illicit drugs were for his own personal use. A rehabilitation course on drugs and alcohol could assist in giving him the right tools to fight his addiction and become a law-abiding citizen.
23. All these circumstances support a suspension and I consider it appropriate and in line with recent authorities to fully suspend the accused’s sentence subject to conditions.
    

6. SENTENCE

24. On the count of possession of a Class A drugs the accused is convicted and sentenced to 9 months imprisonment;
25. On the count of possession of a Class B drug the accused is convicted and sentenced to 3 months imprisonment to be concurrent to count 1;
26. 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. He 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 Monday 30 November 2020.
27. I further order that all illicit drugs seized from the accused is destroyed.
    

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