R v Kumar [2020] TOSC 109; CR 249 of 2020 (27 November 2020)

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

CR 249 of 2020

BETWEEN:

R E X - Prosecution

AND:

SHALINA KUMAR - 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 two counts of possession of a Class A drug (methamphetamine) contrary to section 4 (a) of the Illicit Drugs Control Act and one count of possession of a Class B drugs namely 0.39 grams of cannabis contrary to section 4 (a) (i) of the Illicit Drugs Control Act;
2. On 07 October 2020 she was arraigned and pleaded guilty to both counts.
3. She now appears before me for sentencing.
   

2. THE OFFENDING
   

4. On or about 6 May 2020, the Police received credible information that one ‘Inoke Hu’akau was selling drugs from his residence at Kapeta.
5. The Police acted on this information and went to search Mr. Hu’akau’s residence. When they arrived, the accused was with Mr. Hu’akau as they were living together as a couple.
6. The Police found methamphetamine in the accused’s pockets and she had also tried to swallow packets of cannabis. However, this was later retrieved from her mouth.
7. The substances seized were later tested and confirmed to be illicit drugs.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

8. 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 was found with both methamphetamine and cannabis;
   100. The accused’s actions were premeditated;
   4. The accused’s tried to conceal the illicit drugs by putting it in her mouth with the intention to swallow it but later changed her mind;
9. 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)
   4. She cooperated with the police;
10. 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 Havea 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. PRE-SENTENCE REPORT
   

11. 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 her to assist me in determining a fair sentence.
12. The accused is 23 years old and comes from Fangaloto. Her mother has passed away and she lived with her father.
13. She was previously married but they did not have any children. They are now separated and she is currently living with her boyfriend who is the co-accused ‘Inoke Hu’akau. She is now 8 months pregnant with their first child.
14. In terms of education, she had attended the Ocean of Light Primary School and later went as far as Form 5 at the Ocean of Light High School. She then left in 2017 to live in Fiji and assist her father with their spare parts shop. She returned to Tonga in 2018 and worked at her father’s hardware shop in Nuku’alofa. The shop is named ‘Ana’s Gift Shop.
15. She stated that on the day of the offending she and ‘Inoke had returned home to find her brothers at the house. They tried to chase them away but the police came and found the illicit drugs. She said that she tried to swallow the packet of illicit drugs but then changed her mind and she spat it out.
16. She stated that she is truly remorseful over what she has done and states that she had learned her lesson and will never commit such offence again. She seeks the courts mercy and says she has changed as she had been influenced by her peers but now knows the gravity of what she has been convicted of.
    

5. DISCUSSION
   

17. 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.
18. 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.
19. An unusual feature of this case however is the fact that the accused is heavily pregnant at 8 months. I believe this factor will be relevant to consideration of suspension and I will not take it as a mitigating factor to reduce her sentence.
20. 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.
21. For her early guilty plea and the fact that she is a first-time drug offender I deduct 6 months from the starting point leaving a total of 6 months imprisonment.
22. 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.
23. For the third count of possession of cannabis she is sentenced to 3 months imprisonment concurrent to count 1.
24. 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.
25. 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.
26. I also accept that the accused is remorseful and that the possession of the illicit drugs were for her own personal use. A rehabilitation course on drugs and alcohol could assist in giving her the right tools to fight her addiction but I am minded of the fact that she is about to give birth and an order for her to attend courses will be difficult with a young child to care for.
27. 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

28. On the count of possession of a Class A drugs (0.06) the accused is convicted and sentenced to 6 months imprisonment;
29. 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;
30. On the count of possession of a Class B (0.39grams) drug the accused is convicted and sentenced to 3 months imprisonment concurrent to count 1;
31. 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 her suspension;
    100. She is not to drink alcohol or take drugs during the period of her suspension;
         

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