R v Fa'aoso [2020] TOSC 90; CR 240 of 2020 (30 October 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY	CR 240 of 2020
REX -v- LIKAMANI FA'AOSO

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mr T. ‘Aho for the Prosecution Mr S. Taione for the Accused
Date of sentence:	30 October 2020

Introduction

1. In this proceeding, the Defendant was charged jointly with Sosiua Totau (CR 241 of 2020) with one count of possession of 165.37 g of cannabis. Upon their arraignment on 30 September 2020, the Defendant pleaded guilty to the count whereas his co-accused pleaded not guilty. Totau also pleaded not guilty to one count of offering a bribe to a police officer.

The offending

2. On 30 March 2020, the two were driving in a rental vehicle. Totau was driving. Police were carrying out routine Covid-19 inspections at a check point at Tofoa. The Defendant’s vehicle was waved over. An officer from the Drugs Enforcement Taskforce recognised Totau and walked towards the driver’s door. Totau reached for the keys which were still in the ignition. A struggle ensued and the officer removed the key.
3. With the assistance of two other officers, police conducted a search of the vehicle. They found 126 packs of cannabis, one plastic bag of cannabis leaves and seeds and another large bag of cannabis leaves. In total, the cannabis weighed 165.37 grams.
4. Upon the Defendant’s guilty plea being entered, directions were made for submissions on sentence and a presentence report to be filed by 23 October 2020. The defendant was also directed to attend the probation office within 48 hours to make arrangements for the preparation of his presentence report.
5. The Crown’s submissions have been filed. No submissions for the Defendant have been filed. The probation office has not been able to file a presentence report because the Defendant has not attended their office and they do not know his whereabouts.

Crown’s submissions

6. The Crown submits that the aggravating features of this case are the substantial quantity of cannabis and the fact that most of it was found in 126 small packs which suggests the Defendant may be a supplier. Mitigating features are the Defendant’s early guilty plea and although the Defendant has a previous conviction for assault in 2007 and housebreaking and theft in 2008, he does not have any previous convictions for drug related offences.
7. The Crown has provided the following comparable sentences.
   • (a) In Talia’ui Fatongiatau (CR 138/19, Cato J, 10 July 2020), the Defendant was convicted after trial of possession of 0.34g of methamphetamine and 159.13g of cannabis. For the latter, he was sentenced to 6 months imprisonment to be served concurrently with a sentence of 2 ½ years for the methamphetamine.
   • (b) In Sione ‘Atupuha Latu (CR 136/17, Cato J, 29 May 2018), the Defendant pleaded guilty to possession of 195.37 guilty of cannabis and 109.8g of cannabis seeds. He had no previous convictions. He was sentenced to 2 years 3 months on each count, concurrent, with the final 9 months suspended on conditions.
   • (c) In Satio Matakaiongo (CR 135/17, Cato J, 29 May 2018), the Defendant pleaded guilty to possession of 89.2g of cannabis. He was sentenced to 2 years 3 months with the final 9 months suspended on conditions.
8. The Crown also relies on the reference in Vea v R [2004] TOCA 7 to the New Zealand Court of Appeal decision in R v Terewi [1999] NZCA 92; (1999) 3 NZLR 62 in which three categories or scales of offending involving cannabis, from person use to large scale commercial operations, were identified with corresponding penalty ranges for each. For small scale commercial purposes, a starting point was suggested of between two and four years.
9. Based on those ranges and the above comparable sentences, the Crown submits that an appropriate starting point in this case is 3 years imprisonment. Mitigation for the early plea and relevant good record should reduce the starting point by 12 months. The Crown also submits that the Defendant is eligible for some suspension of the sentence.

Starting point

10. Pursuant to s.4(b)(ii) of the Illicit Drugs Control Act, the maximum penalty for possession of cannabis, a Class B drug, weighing 28 grams or more, is a fine of $50,000 or imprisonment for 7 years or both.
11. I am satisfied that the offending here is to be characterised as small commercial, attracting a starting point of between 2 and 4 years imprisonment, and at the lower end of that range. Having regard to the above comparable sentences, I set the starting point at 2 years imprisonment.

Mitigation

12. For his early guilty plea and lack of previous relevant convictions, I reduce the starting point by 8 months, resulting in a sentence of 16 months imprisonment. There is no information before the court as to whether the Defendant intends to give evidence for the Crown against his co-accused, Totau, at his upcoming trial. If that were the case, a greater discount may have been available.

Suspension

13. Of the Mo’unga considerations for suspension, the available information points only to the Defendant being 29 years of age, having a lack of relevant previous convictions and having pleaded guilty early. I have no information as to his prospects of rehabilitation. Against that, the nature and scale of the offending calls for effective deterrence.
14. On balance, I consider it appropriate to suspend the final 8 months of the sentence for a period of 12 months from release, on conditions which will be set out below. Provided those conditions are met, the Defendant will be required to serve 8 months imprisonment.

Result

15. The Defendant is convicted of possession of an illicit drug and sentenced to 16 months imprisonment.
16. The final 8 months of the sentence will be suspended for a period of 12 months from the date of his release on conditions that during the period of suspension, the Defendant shall:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release; and
    • (d) attend and complete a course on drug awareness as directed by his probation officer.
17. Any failure by the Defendant to fulfil the said conditions may result in him being returned to prison to complete the balance of his sentence.
18. Pursuant to section 32 of the w, I order that the illicit drugs the subject of this proceeding be destroyed.
    

NUKU’ALOFA	M. H. Whitten QC
30 October 2020	LORD CHIEF JUSTICE