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R v PMP [2020] TOSC 112; CR 284 of 2020 (3 December 2020)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY


CR 284 of 2020


REX

-v-

PMP

(a pseudonym)


Description: page1image57912384


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr J. Lutui DPP with Mrs Aleamotu’a for the Prosecution

Mr S. Fili for the Defendant

Date of sentence: 3 December 2020


Introduction

  1. On 27 October 2020, the defendant pleaded guilty to unlawful possession of 2.12 grams of methamphetamine and 0.91 grams of cannabis, contrary to ss 4(a)(iii) and (i) of the Illicit Drugs Control Act.

The offending

  1. On or about 29 March 2019, police received reliable information that the defendant was supplying and using illicit drugs from his residence at Pili. They attended the defendant's residence and conducted a search without warrant. Police found two packets of what was later tested to be methamphetamine and one packet of cannabis outside the defendant’s shed. They also found a bag containing empty packets. Inside the shed, police found a number of other packets of methamphetamine, a test tube used for smoking methamphetamine, other bongs, empty packets, a scale and $915.
  2. Upon his arrest, the defendant co-operated with the police and admitted to the offending. He told police that he was contacted by another person to buy the drugs for $250. He did so and then returned to his residence to test the quality of the methamphetamines before then purchasing another 2 grams. When he returned to his residence the second time with the methamphetamines, he was apprehended by police.

Crown’s submissions

  1. The Crown submits that the aggravating features in this case are the seriousness of the offence of unlawful possession of methamphetamines and that the offending was premeditated. It submits that the mitigating features are that the accused is a first-time offender, that he co-operated with police and that he admitted to the offending at the earliest opportunity. By a subsequent letter dated 1 December 2020, the Crown recanted on its earlier submission that the defendant had no previous convictions and provided details of convictions for driving under the influence of alcohol on 2 November 2016 for which the defendant was fined $250 and on 5 June 2019, he was convicted of one count of assault and fined $100 and one count of domestic violence and fined $150. He has no previous drug-related convictions.
  2. The Crown referred to what it considered to be three comparable decisions.
  3. In Viliami Mangisi (CR 10 of 2018, unreported), Cato J referred to the decision of the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507 as providing useful guidelines for sentencing in methamphetamine cases. The Court of Appeal there provided different sentencing ranges by different bands representing different weights of methamphetamine. Relevantly, in band 1, for less than 5 grams, the suggested sentences range from community-based orders to 4 years imprisonment.
  4. In R v Afu [2020] TOSC 69, the defendant pleaded guilty to possession of 0.11 g of methamphetamine. He was 35 years of age and a first-time offender. He was sentenced to 6 months imprisonment fully suspended on conditions.
  5. In Master Tome Suasau (CR 120 of 2020,Unreported), Acting Judge Langi set a starting point for possession of 0.48 g of methamphetamine of 12 months imprisonment. From that, she deducted four months in mitigation leaving a net sentence of eight months imprisonment. That term was fully suspended on conditions including 70 hours community work.
  6. In the instant case, the Crown submits that:

Presentence report

  1. According to the presentence report, the defendant is the eldest of six siblings, most of whom reside overseas. Due to family financial hardship, he only completed form 3 at Tupou College. He still lives with his parents, his de facto partner and five children as well as his youngest brother who suffers from a mental condition.
  2. When he was 17, he travelled to New Zealand, found a job, married and had three children. Due to overstaying, he had to return to Tonga to lodge a formal application for permanent residency in New Zealand. Not long after returning to Tonga, he met the woman with whom he now lives. They have had children together. He no longer intends to return to New Zealand. He plans to marry his de facto partner but has not yet divorced his wife in New Zealand.
  3. The pressures of unemployment and trying to support his parents, his partner and children eventually led the defendant to trying cannabis and then to further illegal activities for financial gain. He admitted to the probation officer that his offending here was "purposely to get money to feed all the people at home that he looked after". Although he knew the risks of such activity, he is said to now regret his involvement in it.
  4. Then, the summary to the report included the following:
"... Also the accused shares that he has verbal agreement with police task force team on drugs. They (Police) allowed him to continue using illicit drugs and his path was to set other drug users to be apprehended by police. The police officers’ part was only apprehending drug users that he has set up. It was him that has put himself to risky situations so that police officers easily apprehended drug abusers. The accused shares that he has set up more than 20+ people for police to be apprehended. That verbal agreement was done when he was apprehended on this case. He was told that this case would not be taken to court if he helped them apprehend others. He has done his part but he was much surprised when he found out that police officers did not comply with their part."

  1. The probation officer considers the defendant's risk of reoffending to be low. He recommends that any inevitable sentence of imprisonment be fully suspended on conditions including attendance at an alcohol and drugs awareness program at the Salvation Army and community service work.

Starting point

  1. In R v Ali [2020] TOSC 94, it was observed that:
“[26] Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply and use of insidious illicit drugs like methamphetamines. Part of that role is to ensure that sentences imposed for such offending are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.”

  1. In R v Afu, ibid, referred to in the Crown’s submissions, the Court referred to R v Maile [2019] TOCA 17 in which the Court of Appeal endorsed the view expressed by Cato J in R v Ngaue[1] summarised as:
  2. The comparable sentences submitted by the Crown on this occasion are of limited assistance. A recent and somewhat more comparable decision may be found in R v Ali [2020] TOSC 94. There, the defendant pleaded guilty to possession of methamphetamines and cannabis. On the first occasion, he was arrested with 0.86 grams of methamphetamine. Some seven months later, whilst he was on bail for the first offence, the defendant was again arrested for being in possession of 1.04 grams of methamphetamine and 0.4 grams of cannabis. Relevant comparable sentences referred to by the Crown in that case included:
  3. For Ali, the starting points were set at nine months imprisonment for count one, 18 months on count two and one month on count 3 to be served concurrently with count two. After discounts for the defendant’s co-operation, early guilty plea and relatively good record, the resulting sentences were six months and 12 months for the methamphetamine charges. Because the defendant committed the second offence whilst on bail for the first, the sentences were ordered to be served cumulatively. Of the resulting 18 months imprisonment, the final nine months was suspended on conditions.
  4. Having regard to the amount of methamphetamine in the present case, that the defendant procured it for supply for financial gain, and the above comparable sentences, I agree with the Crown’s submission that the appropriate starting point is two years imprisonment for the methamphetamine charge. I also impose a sentence of two months imprisonment for the cannabis charge, to be served concurrently.

Mitigation

  1. For the Defendant’s co-operation with police (as described in the Crown’s written submissions), early guilty plea and relatively (and relevantly) good record, I reduce the starting point on the head sentence by one third or eight months, resulting in a sentence of 16 months imprisonment.

Suspension

  1. The defendant is 44 years of age. He is unemployed but has effectively eight dependents. His offending here is said to have been driven by the need to support his large family. Notwithstanding, since at least the decision in Vea v R [2004] TOLawRp 28, the Tongan Court of Appeal has cited with apparent approval the approach of the New Zealand Court of Appeal that “personal circumstances are generally irrelevant when sentencing for drug offending”: e.g., see Huni [2018] TOSC 33 at [7]; Taulua [2018] TOSC 80; Wolfgramm [2020] TOSC 78 and Totau [2020] TOSC 95.
  2. For that reason, too, the probation officer places reliance on the so-called ‘breadwinner submission’ as a basis for a fully suspended sentence. Recently, in Wolfgramm & ors [2020] TOSC 78, it was observed that:[2]
“The Courts have repeatedly stated, most recently in Rex v PF [2020] TOSC 30, that the "breadwinner submission" is one that is constantly raised in the courts of the Kingdom, but which carries little weight in determining whether a Defendant should be sent to prison. Imprisonment will fall hard on the family the Defendant should be supporting, but this Court has commented more than once that such a factor is not the responsibility of the Court: Tukuafu v Police [2001] Tonga LR 151.[3] Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7.[4] Further, the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. It may be accepted that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending: R v Motulalo [2000] Tonga LR 311 at 314.[5]
For my part, I would echo the sentiments and stance taken by the courts as expressed above in this way. Whenever a ‘breadwinner’ decides to commit serious crime, he or she must be regarded as doing so in the knowledge that they will:
(a) usually be harming others (and possibly themselves) in the commission of the crime/s;
(b) be exposing themselves, if and when caught and convicted, to a risk of incarceration; and
(c) in that event, also be sentencing their loved ones, for whom they are responsible, to likely hardship and suffering during any period of incarceration.
Any such hardship is not due to the sentence per se which the courts must impose. That is but the result of a decision by the breadwinner to commit serious crime. Even where, as here, the majority of the Defendants joined in the illegal enterprise, reportedly, to make “quick cash” and to “help their families”, their decision to do so by means of known illegal conduct had the effect of gambling with their families’ lives and livelihoods, abrogating their responsibilities to those innocents and breaching their trust. Therein lies the root cause for the avoidable misery for family members which all too often follows the fall of their ‘breadwinner’.”

  1. The considerations for suspension discussed in Mo'unga [1998] Tonga LR 154 at 157, produce a mixed result here, for the defendant:
  2. Arguably, the stated motivation for his offending – to support his family while he has been unemployed - attracts some diminution in culpability, compared to those who supply illicit drugs purely for profit or greed rather than need. I am mindful, however, of the necessary limits to be applied to a plea of that nature. It is no excuse to the commission of serious crime that it was seemingly necessitated as a means of alleviating the offender’s financial difficulties. To view the matter otherwise would amount to ignoring the statute and the suffering of those who become addicted to these drugs of destruction at the hands of suppliers like the defendant here. It may, however, be accepted as part of the explanation for the offending.
  3. As to the last of the Mo’unga considerations, I am ambivalent as to whether the defendant is likely to take the opportunity offered by any suspension of his sentence to rehabilitate himself. In truth, it is at present, a matter of no more than conjecture. Apart from his professed remorse, after being prosecuted for this offending, there is no evidence by which to gauge the defendant’s genuineness and/or willingness for rehabilitation. Despite being charged in March 2019, and unlike others who are able to demonstrate real intention to rehabilitate, there is no evidence here that the defendant has, for example, undertaken any courses on drug awareness or similar in an effort to change his ways. There is also no evidence that he has been gainfully employed during the past 20 months or so.
  4. In addition to those factors, I also take into account the seriousness of the offending, likely effect on unwitting victims of drug supply and the need for effective deterrence. Unlike the approach of the New Zealand Court of Appeal but consistent with the Tonga Court of Appeal in Rex v Vake [2012] TOCA 7, I am prepared to take into account, to a very limited extent, the personal circumstances of the offender and those dependent on him.
  5. Ultimately, in my view, the overarching consideration on this issue is whether suspension is likely to aid in the rehabilitation of the defendant. If it is, his rehabilitation is, in turn, also likely to benefit the community.
  6. Upon weighing all those factors, I am prepared to give the defendant the opportunity of rehabilitation assisted through conditions attached to some suspension of his sentence.
  7. The question then is whether the sentence should be fully or only partly suspended, and if the latter, how much?
  8. It is at this stage then that I directly address the defendant’s claims through the pre-sentence report that he agreed to become, and has acted as, a police informant since his arrest on these charges, and that his assistance has led to the arrest of a significant number of other alleged drug offenders. The Crown’s submissions were conspicuously silent on this issue. But for the unusual submission that the starting point of two years should be reduced by half, for mitigating factors including the defendant’s cooperation with the authorities, the Court would not have been aware of this most important factor until receipt of the presentence report.
  9. For that reason, I directed enquiries to ascertain whether the Crown agreed with the description of the defendant’s undertaking as a police informant. At 4:25pm yesterday, I received word that it did.
  10. However, that belated concession gives rise to a far more fundamental question, namely, whether, as the presentence report records, the police also agreed not to prosecute the defendant on these charges if he agreed to be an informant?
  11. During oral submissions this morning, the Director of Public Prosecutions, Mr Lutui, clarified that the Crown agreed that the defendant had acted as a police informant and that as a result of his assistance, 11 operations had ensued which have netted seizures of methamphetamines totalling 59.68 grams, 543 grams of cannabis and $2,803 in cash. However, Mr Lutui denied that there was any agreement for immunity for prosecution in return for the defendant’s assistance. He said that the defendant approached him after his committal on the instant charges and asked for assistance. Mr Lutui made enquiries of the Commissioner of Police who informed him that police do not offer immunity to offenders as that is a matter solely for the discretion of the Attorney General. Therefore, the agreement, he said, was that in return for the defendant’s assistance, the Crown would bring that assistance to the Court’s attention on any sentence as a matter in mitigation. That those matters were not articulated in the Crown’s written submissions on sentence was due to the DPP’s office still working on appropriate procedures for presenting such information to the Court in cases such as the present.
  12. Mr Fili confirmed that his client had hoped that police may not charge him if he assisted them, but that there was no agreement for immunity.
  13. But for the defendant’s far greater co-operation with the authorities in relation to other illicit drugs investigations, I would have been minded to only suspend eight months of the 16 month sentence, thereby requiring him to serve eight months. I do not consider that full suspension, even for a first detected drug conviction, given the insidious nature of methamphetamine and its effect on the community, the weight and commercial element of the offending, would strike the right balance between an opportunity for rehabilitation on the one hand, and the sentencing objectives of punishment, denunciation, protection of the community and deterrence, on the other.
  14. However, in light of the Crown’s concession as to the extent of the defendant’s assistance, I take into account the not insignificant fact that having informed on other drug dealers and users, the defendant is very likely to be at grave risk of harm and retribution if sent to prison, well beyond the usual vicissitudes of incarceration. In that event, his experience would likely be far more onerous than had he not assisted police in the way he has.
  15. In all the circumstances, I am satisfied that it is appropriate, in this case, to fully suspend the sentence on conditions I will set out below. Given the defendant’s indirect service to the community as a police informant, I see no basis for including other community work among the conditions of suspension.

Result

  1. The defendant is convicted of unlawful possession of illicit drugs and sentenced to:
  2. The said sentences are to be fully suspended for a period of two years on condition that, during the period of suspension, the defendant is to:
  3. The defendant is advised that he if does not take this opportunity for rehabilitation and/or he fails to comply with the aforementioned conditions, he will likely be required to serve the full 16 months imprisonment and without any repeated consideration for his role as a police informant.
  4. The Crown advises that the methamphetamines the subject of this proceeding have already been destroyed by ESR. Pursuant to s.32 of the Illicit Drugs Control Act, I order that the cannabis, the subject of this proceeding, be destroyed.
  5. Further, pursuant to s.33 of the said Act, I order that the $915 cash seized upon the defendant’s arrest, be forfeited to the Crown.
  6. Finally, and to accord with the anonymity requirements of s.30 of the Act, and the public policy or interest in protection of police informants, I order that the identity of the defendant and his evidence in this proceeding shall not be published in the Kingdom in any written publication available to the public or be broadcast in the Kingdom. At Mr Lutui’s suggestion, I will also direct that publication by the Court of these remarks be deferred.

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NUKU’ALOFA
M. H. Whitten QC
3 December 2020
LORD CHIEF JUSTICE

[1] Unreported, Supreme Court, CV 6 of 2018, 2 August 2018 at [5] and [6]

[2] [47] to [49].

[3] 'Eukalite v Police [1994] TLR 80 per Ward CJ.

[4] Referred to by Paulsen LCJ in Rex v Fainga'anuku [2018] TOSC 16 at [33].

[5] Referred to in Rex v Vake [2012] TOCA 7 at [20] and Fainga'anuku at [32].

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