R v Kalonihea [2020] TOSC 68; CR 209 of 2019 (20 July 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 209 of 2019 CR 210 of 2019
REX -v- UAI KALONIHEA LISIA FUSI KALONIHEA

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Counsel:	Mr Finau for the Crown Mr Fili for the Defendants
Date of trial:	20 July 2020

The offending

1. The two defendants before me today are married. On or about 16 April 2019, the police worked towards credible information that the Defendants were in a room at Simon’s Guesthouse and were supplying illicit drugs. The police conducted a search without warrant and found the defendants in their room. As they entered the room, the male defendant (Uai) ran to the bathroom and tried to flush some of the illicit drugs down the toilet. However, the police managed to retrieve four packets containing methamphetamine. The police found on the female defendant (Lisia) three packets methamphetamine, two in a plastic bag and one inside a maxi pad packet in her bag. The drugs and other paraphenalia were seized and the defendants were arrested for possession.
2. The drugs seized were originally weighed at:
   • (a) the four packets found inside the toilet totaled 1.21 gram; and
   • (b) the three packets found inside Lisia’s bag totaled 0.91 grams.
3. The defendants did not cooperate with the police.
4. They have no previous convictions.
5. When they were originally arraigned before this court, they pleaded not guilty to both counts. The prosecution subsequently filed an amended indictment naming both in respect of one count each. Today was intended to be the first day of their three-day trial.
6. At the commencement, Mr Finau for the Crown sought leave to amend each count on the indictment by reducing the weights by excluding the wieghts of the basg in which the methamphetamine was found. That resulted in count one (against Uai) being reduced to 0.17 grams and count two (against Lisia) being reduced to 0.01 grams. Mr Fili consented to the amendment and leave was granted.
7. Mr Fili then asked for the Defendants to be re-arraigned. They pleaded guilty to their respective amended counts.
8. Both counsel agreed (after the matter was stood down for a short period) for sentencing to take place instanter.

Crown’s submissions

9. I take into account the Crown’s submissions in relation to recent cases and sentences for methamphetamine possession, particularly, first offenders and for low or small weights. The comparative sentences referred to by the Crown suggest a range of four months imprisonment fully suspended with community service down to good behavior bonds of twelve months. I note there the significant variance between the amounts of methamphetamine in those comparative decisions and the results in sentencing.
10. The Crown points to what it considers are aggravating features of the case, namely, that:
    • (a) when the police searched the room, they also found weighing apparatus, some cash and small empty packets;
    • (b) defendants’ failure to permit the police to enter when they first arrived; and
    • (c) Uai’s attempt to dispose of some of the powder by flushing it down the toilet.
11. Mr. Finau suggested the case has ‘a hint of supply’ about it and not merely possession. I, of course, must sentence both defendants on the charges brought by the Crown to which they have pleaded guilty.
12. The Crown proposes sentences for each Defendant of good behavior bonds for 12 months with conditions of probation and attendance at a drugs awareness course.

Defence submissions

13. Mr. Fili submitted, in summary:
    • (a) Uai is 39 years of age;
    • (b) Lisia is 33;
    • (c) they have five children, the eldest being 13 years of age
    • (d) they are both first defenders;
    • (e) their late guilty pleas were due to their belief that the weights which were originally particularized in the indictment were too high and, once corrected, they agreed to plead guilty;
    • (f) they are remorseful, especially with the realization of the risk that their offending could have left their children with no one to look after them;
    • (g) they have stopped using drugs; and
    • (h) their church is providing support for their change of lifestyle.
14. Mr. Fili supported the prosecution’s proposal as to sentence.

Consideration

15. One of the difficulties faced by this court in having to deal with a significant increase in the number of cases involving class A drugs, predominantly methamphetamine, is that even when such cases involve very low weights, defendants are first offenders and plead guilty at the earliest available opportunity, the Court of Appeal in R v Maile [2019] TOCA 17 recently stated:^[1]

“The Judge also did not refer to recent cases where it has been held that those involved with methamphetamine in any capacity and even small amounts can expect to receive custodial sentences. Most recently in R v Ngaue (Unreported, Supreme Court, CV 6 of 2018, 2 August 2018) at [5] and [6] Cato J said;
‘This judgment will serve as a warning for those who engage in Tonga with the drug methamphetamine whether it will be for possession only or small amounts, or large amounts, trafficking or supplying it for others, manufacturing, importing, exporting or dealing in any way which is extremely dangerous and addictive drug that the courts will sentence the offenders to severe punishment. Even for possession of small amounts, offenders can expect to be sentenced to terms of imprisonment. Methamphetamine is a scourge that has effected a great deal of harm and misery on societies such as Australia and New Zealand where it has become prevalent in the last couple of decades. It is highly addictive to users, it is mind altering and is often accompanied by acts of serious violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for the user to fund the acquisition of the drug. Significant markets are to be found for those who choose to manufacture or import the drug and large profits can be made by criminals who choose to engage in such activities. The courts have responded by imposing very significant penalties on those who engage in these kind of activities’.
...
Although Mr. Maile was only found with a small portion of methamphetamine, his offending was serious as this is a class A drug. In prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed. The distribution and use of methamphetamine in Tonga is a significant government and community concern and we endorse the comments of Cato J made in Ngaue (supra).”

16. Having regard to those principles and the submissions of both counel, I take into account both defendant’s lack of any previous convictions and their guilty pleas albeit on the first day of trial. I accept that their resistance to that point was based on a difference in view about the weight of the drugs, and once that was effectively conceded or acknowledged by the Crown, they have entered guilty pleas. I will regard that as being as close to as early as possible as was available in those circumstances.
17. I have significant concerns about the actual nature of their involvement with these drugs. Apart from the other indicia to which Mr. Finau pointed, namely, scales, cash and other empty plastic packets found when their room was raided, a serious question arises as to what they were doing in a hotel room with these items when they were found. They have a house in which they live with five children. There must therefore have been some reason for them to be with this methamphetamine and other paraphernalia somewhere other than at their own house. However, as I have indicated, they have pleaded guilty to charges brought by the Crown for possession only.
18. Notwithstanding the Court of Appeal’s clear indication that any involvement with methamphetamine can expect to attract custodial sentences, in the case of Lisia, the amount ultimately to which she has pleaded guilty is, in my view, and to use the words adopted by Justice Niu in the Maile case, ‘infintesimally small’. It is at the lowest end of the spectrum of weights, for which, in my view, non-custodial sentences such as good behavior bonds may apply.
19. The other significant consideration is that for first offenders on possession charges, the court should endeavor to afford the Defendants a chance of rehabilitation. The same may not be said for those who engage in trafficking or supply of any amounts, even if they are first offenders.

Result

20. Uai Kalonihea, you have pleaded guilty to possession of 0.17 grams of methamphetamine. For the reasons I have outlined, I consider it appropriate to sentence you to imprisonment for six months.
21. Having regard to the considerations for suspension in the decision of Mo’unga, your sentence will be fully suspended for a period of 12 months on conditions that during the period of suspension you are to:
    • (a) not commit any offence punishable by imprisonment (which includes any illicit drug use);
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours; and
    • (d) undertake a course in drug awareness at the direction of your probation officer.
22. Lisia Kalonihea, you have pleaded guilty to the possession of 0.01 gram of methamphetamine. To the best of my knowledge, that is the lowest weight ever dealt with in this court. You are convicted and placed on a good behavior bond pursuant to s.198 of the Criminal Offences Act for a period of 12 months. You will also be placed on probation during that time on the same conditions that I have just outlined for your husband.
23. I wish to make it crystal clear to both Defendants that if you do not take this opportunity for rehabilitation, and you end up back before this Court in the not too distant future on any drug related charges for which you are found guilty or plead guilty, there is a very high likelihood that you will be imprisoned. Therefore, if, when you leave here today, you continue to live a lifestyle or associate with others that might tempt you to use drugs again, just look at your children and think what it would be to lose them. Stay away from drugs and anyone associated with them. You have a life to lead the best you can, and your children need and deserve for you to give them the best life they can have.
24. I order the destruction of the seized methamphetamine pursuant to s.32 of the Illicit Drugs Control Act.
25. The Crown also requests that the other exhibits found on the scene – scales, other packets and $1,000 in cash - be forfeited to the Crown pursuant to s.33 of the Illicit Drugs Control Act. Mr Fili submitted that the cash be returned to the Defendants. He did not specify why. In light of the observations made earlier about the fact that the Defendants were found in a hotel room with multiple packets, some containing methamphetamine, scales and cash, their initial resistance to the police entering the premises and the attempt to flush something down the toilet, I consider it appropriate that the cash, in respect of which the offences were committed, also be forfeited as an element of the overall sentencing by which both have avoided actual imprisonment today.
26. I order the return of each Defendant’s driver’s license and passport.
    

NUKU’ALOFA	M.H. Whitten QC
20 July 2020	LORD CHIEF JUSTICE

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^[1] [18]-[20]