R v Liiv [2020] TOSC 115; CR 56 of 2020 (18 December 2020)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 56 of 2020

REX

-v-

TOOMAS LIIV

BEFORE : HON. JUSTICE NIU

Counsel : Ms H. Aleamotu’a for Prosecution

Mr Doomas Livi (Toomas Liiv), Puke, Accused

Probation Report: by ‘Ilaisaane Fifita, Probation Officer filed 30 September 2020.

Submissions : by Ms Aleamotu’a filed 6 October 2020

By the Accused filed 15 October 2020

Sentencing : 18 December 2020

SENTENCING

[1] Toomas Liiv, you have pleaded guilty to, and I have convicted you, of three offences:

(a) possession of 67.12 grams of cannabis at Puke on 12 April 2019.
(b) cultivation of 4 cannabis plants at puke on 12 April 2019.
(c) possession of 2 .12 rifle bullets without licence at Puke on 12 April 2019.

[2] What happened was that the police got information that you had drugs at your home at Puke and so they carried out a search there and found the abovestated things. They said that when they asked you whose they were, you told them that they were yours. You have confirmed that by pleading guilty to these 3 offences.

Probation Report

[3] The probation officer has interviewed you and your partner and the town officer of Puke and she has filed and served her report. She says that you are from Estonia and that you had come with your father to Tonga in about 2003 when you were only 18 years old. After 6 months, your father returned to Estonia while you stayed on on your own, because you said that you liked Tonga.

[4] The officer does not say what happened between 2003 and 2005 but that in about 2005 you and your partner, Senitima Tahaafe, began living together and that you had your eldest daughter, ‘Ela, born and that in 2007 you had your second daughter Etivina born. Both daughters are now in St Andrew School, in form 4 and form 2 respectively. She says that you also have an adopted son, now aged 3.

[5] She says that you make your living by doing plumbing and mechanical jobs in people’s house and motor vehicles, and that your partner does weaving of mats and ta’ovala. You thereby support yourselves and your children and your children’s education. She says your children are both doing well at school.

[6] She says that you told her it is true that you had had previous convictions for possessing cannabis and that you had not had any drug offending since 2007. She says you told her that you have had aching and pain in your back for which you needed tablets from the hospital, and because you are not a Tongan, you have had to pay for those tablets which you told her were expensive and you did not have the money for them. You said that you then found that smoking cannabis relieved the pain in your back just as the tablets did and so you had to grow your own cannabis for that purpose, because you did not have the money to buy the cannabis.

[7] However, she did not investigate that claim of yours of sore back by asking your doctor if that was true, that is, that you have a backache and that you were prescribed tablets for it, the costs of such tablets and whether or not cannabis smoking does relieve the pain in your back as the tablet does. You could have provided her with a letter from the doctor to prove your claim but you did not.

[8] Also, you could have been naturalized as a Tongan subject because you have lived in Tonga for over 5 years. You could then have had those tablets for free, but you did not do that. You have chosen to break the law instead.

[9] However, she says that you have truly shown remorse for what you have done because you have brought shame on you and your family, and especially your 2 teenage daughters. That is shown by your admission of your offence to the police and by your guilty pleas to these charges. She says that you have now realized your error because you may now go to prison again and leave your partner and your two daughters to fend for themselves again, but that only now your daughters’ safety and studies would be adversely affected. You would not be there for them and they may not have the money to pay for their school fees and books and uniform, as well as for their lunch at and transport to school.

[10] She therefore recommends that your imprisonment sentence be partly suspended so that you are able to return and carry on your responsibility, but that you take the course of the Salvation Army on drug and alcohol awareness.

Crown submissions

[11] The Crown counsel has referred to your previous convictions which show that

(a) In CR 16/2005 you were sentenced to 3 months imprisonment for possession of illicit drugs but suspended for 6 months and supervised by the Probation Service.
(b) In CR 186/2005 you were sentenced to 1 year imprisonment for possession of drug instruments, 6 months imprisonment for being found by night in enclosed premises, and 1 year imprisonment for conspiracy, all of which sentences were concurrent and were suspended for 3 years.
(c) In CR 287/2007 it would appear that you breached the 3 years suspension of your 2005 sentence by being convicted for possession of cannabis and you were sentenced to enroll with the Salvation Army drug and alcohol awareness programme, and to produce your air ticket back to Estonia by a specified date (29 May 2008) otherwise you would serve a custodial sentence.
(d) In CR 181/2012, you were sentenced to 12 months imprisonment for theft.

[12] The Crown has also referred to 3 drug offence cases:

(a) Taulua (CR 73/2018) where that accused pleaded guilty to cultivating cannabis which weighed 1,150.34 grams which he admitted he was growing for sale. He was sentenced to 2 years 3 months (27 months) imprisonment but that the last 15 months be suspended for 2 years on condition he attended and completed the Salvation Army course and did not commit another offence during the 2 years.
(b) Vea [2004] TOCA 7 where that accused pleaded guilty to growing cannabis. He was a first offender but he had a small scale commercial cannabis operation. He was sentenced to 2 years 9 months (33 months) but that the last 18 months be suspended for 2 years.
(c) Finau (CR 46/2020) where that accused pleaded not guilty but was convicted by jury for growing 54 cannabis plants. He was a first offender. He was sentenced to 2 years imprisonment but suspended for 3 years and that he served 80 hours community service.

[13] Crown counsel submits and recommends, considering those cases, and comparing them to your case, and that you were only growing the 4 plants for your personal use, that you be sentenced to 1 year imprisonment but that a part thereof be suspended in view of your remorse and cooperation with the police.

Court inquiry

[14] Your probation report left many questions unanswered as far as I was concerned and so I had to question you in Court myself, and to your credit, you answered my questions truthfully. I required that you be examined medically and you were. The doctor has confirmed that you do have a back problem. He says that he conducted imaging tests of your lower back and that it showed positive changes of your lumbo-sacral spine, specifically the L5-S1, which was consistent with “osteo-arthritis”. He accordingly prescribed and you have been taking analgesic medication (ibuprofen and paracetamol tablets) which have relieved your backache and pain.

[15] You told me that you had lifted a heavy weight when you were 15 years old and you had hurt your back then, and that you have been having that pain in your lower back ever since. You said that the pain might last up to 2 hours a day and that you had to lie down for a couple of hours to dissipate it. It affected your work and your life. You said that you found that when you took cannabis, it relieved the pain. And you told me that that was why you were taking cannabis. You told me that you had seen the doctor before and that he had prescribed these tablets but they were expensive to buy. You could not get them at the hospital for free because you were not a Tongan. You therefore resorted to the use of the cannabis and you told me that you had never stopped using cannabis, despite your sentences for possession of cannabis in the past, because of your need to relieve your back pain. You even resorted to growing your own cannabis because you had no money to buy it.

[16] The doctor states that it is true that cannabis does relieve your back pain but it is illegal, and irresponsible, that it be so used when lawful analgesic medication could achieve the same result, and you have told me that you are now prescribed and that you now obtain your tablets free of charge.

[17] Now that you are “relieved” of your back problem you are now “free” to work better and earn more for your family and at the same time no longer have the “need” for the use of cannabis again in your life.

[18] I have seen your 2 daughters’ school reports and I have to say, contrary to what you or your partner has told the probation officer, that they are not good, and you know it. But they both show potential to do much better. It means that you and your partner have not helped them enough at home to keep on top of their home works and assignments and to encourage them to strive to do better.

Appropriate sentence

[19] You know, and you knew, when you committed these offences for which I now sentence you, that the sentence for possession of illicit drug is imprisonment. Both the probation officer and the Crown counsel have said so. Crown counsel has stated that the sentence befitting your offences, when similar cases to yours are considered, is 1 year imprisonment, but they also both say that part of that sentence be suspended.

[20] I do not agree with the 1 year imprisonment recommended because you have had previous convictions for possession of cannabis in 2005 and 2007. I consider that your sentence be more in line with Finau’s case who was a first offender for growing 54 cannabis plants. He pleaded not guilty but was found guilty by a jury and was sentenced to 2 years imprisonment which was fully suspended and to serve 80 hours community service.

[21] I therefore consider your sentence should be 2 years imprisonment and that a full suspension is warranted. This is because, in none of the cases referred to or in other cases which have come before the Court, was the possession of cannabis for medicinal purpose, such as in your case. Of course it is still illegal and it is still a criminal offence and it is deserving of punishment, but it is not the normal possession for consumption for the “high” one gets from it. In your case it was for the relief of pain from “osteo arthritis”.

[22] Accordingly, I consider that the 2 year imprisonment sentence be suspended in full, but that I would hang that imprisonment over your head for as long as the law allows, that is, 3 years, in order that you do not touch cannabis ever again. If you commit another offence that is punishable with imprisonment with those 3 years, you will have to serve the suspended sentence of 2 years imprisonment in addition to the sentence for that subsequent offence.

[23] As for the cultivation of cannabis, I consider a sentence of 1 year imprisonment is appropriate but which is to be concurrent with the possession charge.

[24] As for the possession of the 2 rifle bullets, I consider a sentence of one month imprisonment is appropriate but that it is to be concurrent with the possession charge.

Sentence

[25] Accordingly, I sentence you as follows:

(a) For the offence of possession of 67.12 grams of cannabis, you are sentenced to 2 years imprisonment.
(b) For the offence of cultivation of 4 cannabis plants, you are sentenced to 1 year imprisonment.
(c) For the offence of possession of 2 .12 rifle bullets, you are sentenced to 1 month imprisonment.
(d) All imprisonment sentences in (a), (b) and (c) above are to be concurrent and all suspended for a period of 3 years from today in pursuance of the provisions of S.24(3) of the Criminal Offences Act.
(e) All the cannabis in respect of these offences shall forthwith be destroyed by the Police.
(f) The 2 .12 rifle bullets are forfeited to the Crown.

Niu J

Nuku’alofa: 18 December 2020 J U D G E