R v Hu'akau [2020] TOSC 108; CR 247 of 2020 (27 November 2020)

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

CR 247 of 2020

BETWEEN:

R E X - Prosecution

AND:

‘INOKE HU’AKAU - 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 0.06 grams of methamphetamine, contrary to section 4 (a) of the Illicit Drugs Control Act and one count of possession of a Class A drugs namely 0.04 grams of methamphetamine.
2. On 07 October 2020 he was arraigned and pleaded guilty to both counts.
3. He now appears before me for sentencing.
   

2. THE OFFENDING
   

4. On or about 6 May 2020, the Police received credible information that the accused was selling drugs from his residence at Kapeta.
5. The Police acted on this information and went to search accused’s residence. When they arrived the accused and his girlfriend were present. They searched the residence and found illicit drugs on the accused and in the living room.
6. The drugs were later tested and confirmed to be methamphetamine and cannabis.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

7. 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. The accused’s actions were premeditated;
   100. He did not cooperate with the police;
8. 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. The amount of illicit drugs is minimal (0.10 grams of methamphetamine)
9. 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 conditions. In this case Lord Chief Justice Whitten endorsed the views of the Court of Appeal in Maile where it was held that those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.
   100. R v Vilimoa Afu CR 177/2020 – the accused pleaded guilty to possession of 0.11 grams of methamphetamine. He was a first-time offender and had cooperated with the police. The Crown had recommended a non-custodial sentence similar to the sentence passed in Soakimi above but this was not accepted by LCJ Whitten who was of the view that 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 possession of methamphetamine will rarely ever be regarded as a trivial offence. His Honour emphasized the views of the Court of Appeal in Maile where it was stated that in prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed, therefore those involved with methamphetamine in any capacity, and even small amounts, can expect to receive a custodial sentence.
   4. R v ‘Alapasita Sakopo and Kisepi Haveaa CR 176 & 178/19 – in this case the first accused (‘Alapasita) was charged with possession of 0.38 grams of methamphetamine and the second accused was charged with possession of 0.11 grams of methamphetamine. They both pleaded guilty. The second accused was a first-time offender and was an engineer at the Tonga Water Board. He was sentenced to 6 months imprisonment fully suspended for 12 months on condition that he not re-offend.
   5. R v ‘Alipate Tonga’ofa CR 122/20 – the accused pleaded guilty to possession of 0.11 grams of methamphetamine and was a first-time drug offender. He was sentenced probation for one year on condition that he attends a course on drug rehabilitation with the Salvation Army.
   6. R v Semisi Fakava CR 137/2019 – the accused was charged with possession of 0.18 grams of methamphetamine and 9.82 grams of cannabis. He was sentenced by Cato J to good behaviour bond for 12 months and to be on probation for the period of the bond on the following conditions:
      1. Not to commit any offence whilst on bond;
      2. Not to drink alcohol or take drugs;
      3. Undertake a course on drug abuse under the direction of the Salvation Army;
   7. R v Mangisi CR 10/2018-- – in this case Cato J discussed sentencing bands previously applied in New Zealand under R v Fatu [2006] 2NZLR 72 (CA) 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;
      

4. PR-SENTENCE REPORT
   

10. A pre-sentence report was ordered for 3 November 2020. However, a letter was received from the probation office informing the court that a pre-sentence report could not be prepared for the accused because he has failed to show up. I proceeded to interview the accused in order for me to get some background information on him to assist me in determining a fair sentence.
11. The accused is 39 years old and resides at Kolomotu’a. He is not married but has one illegitimate child in Australia. His current girlfriend is pregnant with their child.
12. He lived in Australia where he attended school up to tertiary level where he studied carpentry.
13. He said that he is a permanent resident of Australia but that he had returned to Tonga in 2014 to help his parents with their resort at Ha’apai. He has then remained in Tonga up to the present time.
14. He informed me that on the day the police conducted a search of his house, he and his girlfriend had been out shopping. When they returned home they found other people inside the house and they got into an argument when he tried to chase them out. It was during this time that the police arrived and they found the illicit drugs in the house.
15. He said that he only pleaded guilty because it was his house but that he does not take drugs. This contention by the accused was later corrected by the Crown prosecutor who informed the court that the police had found a packet of methamphetamine inside the accused’s pockets.
    

5. DISCUSSION
   

16. 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.
17. 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.
18. The Crown submits a starting point of 12 months imprisonment for the methamphetamine count. I agree that 12 months is an appropriate starting point for the head sentence of possession of 0.06 grams (Count 1). 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.
19. 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.
20. For the second count of possession of a Class A drug (0.04 grams) the accused is sentenced to 6 months imprisonment to be served concurrent with count 1.
21. 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.
22. 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.
23. 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.
24. 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

25. On the count of possession of a Class A drugs (0.06) the accused is convicted and sentenced to 6 months imprisonment;
26. On the count of possession of a Class A (0.04 grams) drug the accused is convicted and sentenced to 6 months imprisonment to be concurrent to count 1;
27. The sentence is fully suspended on the following conditions:
    1. Not to commit any further offences punishable by imprisonment for a period of 1 year;
    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 40 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.
28. 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