R v Afu [2020] TOSC 69; CR 177 of 2020 (10 September 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 177 of 2020
REX -v- VILIMOA AFU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances :	Mr. F. Samani for the Prosecution The Defendant in person
Date of sentence:	10 September 2020

1. On 15 February 2019, police responded to complaints regarding drug dealing at a residence in Ngele’ia belonging to one, Langi Ta’ai. The officers saw the defendant and another person riding bicycles to the residence. As the defendant and his companion returned, the police officers intercepted them. The defendant tossed an object to the roadside. One of the officers searched that area and found a packet of what later tested as methamphetamines. He showed the packet to the defendant. The defendant apologised. The defendant was cautioned and arrested. He cooperated with police and admitted to the offending.
2. On 13 August 2020, the defendant pleaded guilty to one count of possession of 0.11g of methamphetamine.
3. That day, directions were made requiring submissions on sentence and a presentence report to be filed by 4 September 2020 and for the defendant to attend the probation office within 48 hours. On 31 August 2020, the probation office notified the court that a report had not been able to be prepared because the defendant had not made any contact with that office.
4. The defendant is 35 years of age. He pleaded guilty at the earliest opportunity.
5. The Crown’s summary of facts stated [12] that the Defendant has no previous convictions. However, the Crown's submissions on sentence set out a number of previous convictions, including in 2005 for wilful damage to property for which the defendant was ordered to serve 80 hours community service and for housebreaking and theft for which he was sentenced to two years imprisonment with the final six months suspended for one year. The Crown refers to the defendant's previous convictions as an aggravating feature. I disagree.
6. Under the Rehabilitation of Offenders Act, the defendant is eligible for a spent conviction certificate as more than seven years ("rehabilitation period") have passed since his last sentence of imprisonment. The effect of any such certificate is to deem the defendant to have no criminal record. Further, the past offences were not drug-related. He was last sentenced almost 15 years ago. In the circumstances, I do not consider that his previous record ought weigh in favour of increasing any sentence which would otherwise be imposed had he no previous convictions.
7. The Crown has helpfully provided a number of comparative sentences involving the same or similar amounts of methamphetamines. In R v ‘Alapasita Sakopo & Kisepi Havea (CR 176 & 178 of 2019), Niu J sentenced Havea, who had no previous convictions, for possession of 0.11 g to six months imprisonment fully suspended for one year on conditions. In R v ‘Alipate Tonga’ofa (CR 122 of 2020), Cato J sentenced the defendant, who only had one previous conviction for damage to property in 2010, for possession of the same amount of methamphetamines, to a good behaviour bond for 12 months plus probation and attendance at a drug rehabilitation course. In R v Semisi Fakava (CR 137 of 2019), Cato J imposed the same sentence for possession of 0.18 grams of methamphetamine and 9.82 grams of cannabis on that defendant who had no previous convictions.
8. The Crown submits that "based on the offending and the relevant authorities cited it is appropriate to impose a non-custodial sentence" and suggests a good behaviour bond pursuant to s.198 of the Criminal Offences Act. Again, I respectfully disagree.
9. Recently, in R v Maile [2019] TOCA 17, the Court of Appeal endorsed the view expressed by Cato J in R v Ngaue^[1] that:
   • (a) methamphetamine is a scourge to societies everywhere that has effected a great deal of harm and misery; and
   • (b) the distribution and use of methamphetamine in Tonga is a significant government and community concern,

and confirmed that:

(c) in prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed; and
(d) therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.

10. One of the prime prerequisites for the imposition of a good behaviour bond under s.198 is where the offence is of a trivial nature. In light of the Court of Appeal's remarks above, possession of methamphetamines will rarely ever be regarded as a trivial offence. For example, in R v Lisia Kalonihea (CR 210 of 2019, Supreme Court, 20 July 2020), a bond was imposed for possession of 0.01 grams.
11. Having regard to those principles, the defendant’s lack of recent or related previous convictions, his remorse and early guilty plea, I consider an appropriate sentence to be six months imprisonment.
12. Further having regard to the considerations for suspension in the decision of Mo’unga [1998] Tonga LR 154, in particular, his early plea and relatively long period free of criminal activity, the sentence will be fully suspended for 12 months on conditions that during the period of suspension, the Defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (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 his probation officer.
13. If the Defendant fails to comply with any of those conditions, he may be required to serve the period of imprisonment.
14. Pursuant to s.32 of the Illicit Drugs Control Act, the seized methamphetamine is to be destroyed.

NUKU’ALOFA	M.H. Whitten QC
10 September 2020	LORD CHIEF JUSTICE

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