R v Kolofale [2020] TOSC 57; CR 166 of 2020 (7 August 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY
CR 166 of 2020
REX -v- SOSAIA LALONI KOLOFALE

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mr T. ‘Aho for the Prosecution The Accused in person
Date of sentence:	7 August 2020

The charge

1. On 2 July 2020, the defendant pleaded guilty to one count of possession of 0.75 (gross weight) or 0.48 (net weight) of a gram of cannabis. He was apprehended by police during a search of a vehicle. The other person was subsequently charged with possession of methamphetamine.
2. Section 4(a)(i) of the Illicit Drugs Control Act provides a maximum penalty for possession of less than 28 grams of a class B drug of a fine of $5,000 or one year imprisonment or both.

Crown submissions

3. I have received and considered the Crown’s sentencing submissions and a presentence report.
4. The Crown provided three comparative sentences.
   • (a) In Vea v R [2004] TOCA 7, the appellant pleaded guilty to possession of hemp leaves, 20 branches of Indian hemp and 125 Indian hemp seeds and growing cannabis. He was sentenced to 9 months imprisonment for the first possession charge and two years imprisonment for the second. He was also sentenced to 3 years for the cultivation. The total effective sentence was three years and nine months. The last one year and nine months was suspended. The Court of Appeal reduced the actual prison term to be served from two years to one year and three months with the balance suspended for two years from release. The Court noted that in cases involving the growing of marijuana in small quantities for personal use, "a non-custodial sentence was generally appropriate".
   • (b) In R v Paea He Lotu Ta’ufo’ou (CR 151/2019), the defendant pleaded guilty to a number of drug-related and arms offences. On the count of possession of 4.43 grams of cannabis, he was sentenced to one month imprisonment.
   • (c) In R v Maika Maile (AC 23/2018), the defendant was sentenced on appeal for possession of 0.52 of a gram of methamphetamine to 9 months imprisonment, fully suspended on conditions including 50 hours of community service.
5. None of the above sentences are in fact comparable to the instant case. Having regard to the upper limit of weight prescribed by the relevant provision of 28 grams, the weight here is at very much the lower end of the spectrum of what can only be regarded as personal use. It is also to be noted that Parliament has clearly intended that class B illicit drugs attract far less severe penalties than class A drugs which, at present, carry a single maximum penalty, regardless of weight, of 30 years imprisonment or a $1 million fine.
6. At one point in its submissions, the Crown submitted that a non-custodial sentence is appropriate having regard to the quantity of cannabis and the decision in Vea. However, elsewhere, it submitted a sentence of one month imprisonment, fully suspended, and on similar conditions to those imposed in Maile. Ta’ufo’ou was sentenced to one month imprisonment for possession of over 4 grams of cannabis.
7. I accept that the weight of any illicit drug is not the only factor in determining an appropriate sentence. However, as the relevant legislation has set the maximum penalties by reference to the class and weight of drugs, and without differentiation as to possession, manufacture, cultivation, use or supply, weight is clearly a relevant factor in determining the appropriate sentencing option. On possession charges, it is quite often the only distinguishing feature between one case and another.
8. The defendant here was in possession of less than 1 gram. By comparison with the decision in Ta’ufo’ou alone, a custodial sentence, suspended or not, is therefore, in my view, not appropriate.

Consideration

9. The defendant is 35 years of age. His parents and older siblings migrated overseas when he was about 14 years of age leaving him and his younger sister under the care of his maternal aunt. That separation caused the Defendant significant difficulty. He received minimal financial support, and as a result, he was forced to drop out of high school during Form 3 for not being able to pay his school fees.
10. He is in a de facto relationship. He has no children. He works at the Waste Authority Ltd where he earns between $300 and $400 per fortnight. His employer has provided a reference in which the defendant is described as being very reliable, trustworthy and a pleasure to have working for the company. He is in generally good health.
11. He has a previous conviction for failing to observe the Sabbath ($50 fine) in 2002. He also volunteered to the probation officer that he has a previous conviction for drunkenness. Neither are significant for present purposes.
12. He cooperated with police from the outset and entered a plea of guilty to this charge at the earliest opportunity.
13. The defendant has expressed remorse and acknowledges a need to undertake a drugs awareness program. This appears to be the first detected occasion on which he has been involved with drugs. He told the probation officer that his involvement was a product of associating with others using drugs.
14. In those circumstances, I consider justice will be served by imposing a good behaviour bond together with probation and community service. I therefore make the following orders.

Result

15. Pursuant to section 198 of the Criminal Offences Act, the Defendant is convicted and discharged conditionally on his entering into a recognizance without sureties to be of good behaviour and to appear for sentence when called upon at any time during the next 12 months.
16. Pursuant to sections 199 and 25A, the said recognizance is subject to the following conditions, namely, that during the next 12 months, the defendant is:
    • (a) placed on probation;
    • (b) to report to the probation office within the next 48 hours;
    • (c) not to commit any offences punishable by imprisonment;
    • (d) not to consume alcohol or illicit drugs;
    • (e) to perform 40 hours of community service as directed by his probation officer; and
    • (f) to attend and complete an alcohol and drug awareness course under the direction of his probation officer.
17. Pursuant to section 32 of the Illicit Drugs Control Act, I order that the cannabis the subject of this proceeding be destroyed.
    

NUKU’ALOFA	M.H. Whitten QC
7 August 2020	LORD CHIEF JUSTICE