R v Angilau [2020] TOSC 116; CR 103 of 2020 (24 November 2020)

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

CR 103 of 2020

BETWEEN: R E X
Prosecution

AND: PENISIMANI ANGILAU
Accused

AMENDED SENTENCE

BEFORE : JUSTICE LANGI

Counsel : Mr. Joe Fifita for the Crown Prosecution
The Accused In Person

Date of Sentence : 24 November, 2020

1. THE CHARGE
   

1. The defendant was charged with one count of possession of illicit drugs namely 0.75 grams of methamphetamine, contrary to section 4 (a) of the Illicit Drugs Control Act;
2. On 25 May 2020 he was arraigned and pleaded not guilty and the matter was referred to me for trial.
3. On 23 September 2020 the defendant informed me that he wished to change plea. He was re-arraigned and pleaded guilty as charged.
   

2. THE OFFENDING
   

1. On or about 1 September 2019, the Police received reliable information that the defendant was selling illicit drugs from his residence at Hauloto.
   
2. The police went to the defendant’s residence to execute a search without a warrant. They saw the defendant reversing in his vehicle and they stopped him. After informing the defendant of why they were there they proceeded to search his person. They found two packets of methamphetamine on him.
   
3. The methamphetamine was weighed and the weight came to 0.75grams.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

4. The Crown submits the only aggravating factors in this case is the fact that possession of Class A drug is a serious offence and the accused’s actions were premeditated.
5. They submit the mitigating factors in support of a reduction of sentence is that the accused is a first-time drug offender, his early guilty plea, the minimal number of illicit drugs seized and the accused had co-operated with the police.
6. The Crown also submits a number of comparable cases to assist me in determining the appropriate sentence:
   1. R v Kitione Finau CR 33/2019 – the accused was charged with possession of 0.03 grams of methamphetamine. He was a first-time drug offender, pleaded guilty and had cooperated with the police. He was sentenced to four months imprisonment which was fully suspended on the following conditions:
      1. Not to commit any offence punishable by imprisonment;
      2. Not to drink alcohol or take drugs;
      3. Undertake a course on drug abuse under the direction of the Salvation Army;
      4. 40 hours of community service.
   2. Rex v Ma’ulupe Soakimi CR 130/20 – the accused pleaded guilty to one count of possession of 0.054 grams of methamphetamine and possession of 0.41 grams of cannabis. He was sentenced by Cato J to good behaviour bond and 12 months’ probation and to undertake a drug rehabilitation course under the direction of the Probation office.
   100. 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. 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;
   5. 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. PR-SENTENCE REPORT
   

7. A pre-sentence report was ordered for 16 November 2020. However, on 19 November 2020 a letter was received from the Senior Probation Officer informing the court that they have been unable to prepare the pre-sentence report because the accused has failed to contact them.
   
8. After many unsuccessful attempts by the court staff to contact the accused he appeared before me for sentencing without a pre-sentence report. However, given that he is unrepresented and in the interests of justice, I interviewed the accused in open court to gather some background information about him in order to assist me in reaching a just and fair sentence.
   
9. The accused informed me that he was born in Tonga but left for the United States in 1969 where he lived up until he was deported to Tonga in 2010. He said that he was married with 5 children but has been estranged from his wife for over 15 years. His children are all in the United States.
   
10. He said that he was deported to Tonga because of Domestic Violence offences committed in the United States. When he returned to Tonga he did not have any relatives to live with and eventually went to live at Veitongo on his father’s land.
    
11. In terms of education, he had gone as far as Grade 12 in the United States before dropping out of school. He said that since returning to Tonga, he has found odd jobs doing construction work and brick-laying jobs with the Alovili Home Best Contractor.
    
12. In relation to the offending, the accused says that a friend of his moved in with him who is a supplier of illicit drugs. His friend had asked him to deliver some of the drugs for him which consequently led to his arrest. He insists that he does not use drugs but that his only wrong move was in agreeing to deliver the drugs for his friend.
    
13. He informed me that since this offending he has been unable to find a place to live and that he now lives in his car. He said that his older brother has taken over their father’s property at Veitongo and he is now homeless and lives in his car. He said that his car broke down and is currently at the mechanic to be fixed but that he continues to live inside the car whilst it is being fixed.
    
14. He said that he has now distanced himself from friends who have negatively influenced his life and is looking for an honest job and is determined to live a life free of crime. He says that he values his freedom and no longer wishes to commit anything that will get him into trouble.
    

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 8 months imprisonment. In the recent case of R v Suasau CR 120/20 the accused had pleaded guilty to possession of 0.48 grams of methamphetamine. I had set a starting point in that case of 12 months imprisonment after considering the view of the Court of Appeal in Maile and the views of LCJ Whitten in Afu. A starting point of 8 months imprisonment will be inconsistent with my approach in Suasau and I therefore set the starting point in this case to 12 months imprisonment.
    
18. The accused in this case did not plead guilty at the earliest available opportunity. He had been arraigned before Cato J in May 2020 and his trial was set to run before Niu J in July 2020. He still maintained his innocence until his matter was called before me on 23 September 2020 where he changed his plea to not guilty. However, I will give him some discount for his late guilty plea as he has consequently saved the courts time and resources in having to run a full trial. For his late guilty plea and the fact that he is a first-time drug offender I deduct 3 months from the starting point leaving a total of 9 months’ imprisonment.
    
19. 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.
    
20. 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.
    
21. I also accept that the accused is remorseful and his personal circumstances in having no place or family to stay with may have influenced his choice to commit this offence. I believe that there is still room for him to change and turn his life around.
    
22. 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

23. On the count of possession of a Class A drugs the accused is convicted and sentenced to 9 months’ imprisonment;
    
24. 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. Mr. Angilau is to complete the Salvation Army Drugs and Alcohol Awareness Program and Life Skills Course within the first year of his suspension;
    4. Mr. Angilau is to undertake 70 hours of community work as directed by the probation officer. He is to report to the probation office within 48 hours.
       

‘E. M. L Langi
NUKU’ALOFA: 24 November 2020 J U D G E