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R v Ali [2020] TOSC 94; CR 196 of 2020 (30 October 2020)

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

CR 196 of 2020




REX
-v-
NASIF NAUSHAD ALI

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. On 30 September 2020, the Defendant pleaded guilty to three counts of unlawful possession of illicit drugs, namely, 0.86g methamphetamine, 1.07g methamphetamine and 0.4g of cannabis.

The offending

  1. On or about 25 September 2019, police received information that the Defendant was selling illicit drugs from his residence. They carried out a search of his residence where they found, among other things:
  2. The Defendant admitted to the police at the scene that the methamphetamines belonged to him. The total weight of the methamphetamines was 0.86 g. The accused was arrested and questioned, and he cooperated with police.
  3. On 30 September 2019, the Defendant was granted bail in the Magistrates Court on the usual conditions including that he not commit any further offence.
  4. On or about 26 April 2020, police again received reliable information of ongoing drug dealing at the Defendant's residence. They again conducted a search. In his vehicle, they found empty dealer packets and cash in the sums of $1,008 Tongan, $60 New Zealand and $25 Fijian. Inside the house, the police dog identified a bag in the Defendant's bedroom. It was found to contain one pack of dried plant material and another bag contained one test tube and empty dealer packs. In another room, police found a glass bong. In the kitchen area, police found inside a shoe one white pill bottle containing two packs of white crystal substance, empty dealer packs and one steel bottle containing one pack of white crystal substance. In another shoe, they found empty dealer packs and a weighing scale.
  5. The white crystal substances were later tested and confirmed to be methamphetamine weighing a total 1.04g. The pack of dry plant material was tested and confirmed to be cannabis weighing 0.4g.
  6. The Defendant was interviewed by police and admitted to the charges.
  7. All cash and other items seized by police, other than the illicit drugs, have since been returned to the Defendant.
  8. The Defendant has a previous criminal record for uttering currency in 2008.

Crown submissions

  1. The Crown submits that the aggravating features of this case include that the offending detected on 26 April 2020 occurred while the Defendant was on bail for his offending detected on 25 September 2019. Further, the total number of packs found, the weighing scales and empty packets are indicative of commercial supply rather than personal use.
  2. The Crown relies on the following comparable sentences.
  3. In Fatu [2005] NZCA 278; [2006] 2 NZLR 72, the New Zealand Court of Appeal set out sentencing bandwidths for methamphetamines. More recently, in Zhang v R [2019] NZCA 507 at [126], the New Zealand Court of Appeal revised the guidelines in Fatu, as follows:
  4. In Mangisi (CR 10/18), Cato J noted that:
"[10] New Zealand has a maximum sentence for significant offending of this kind of life imprisonment whereas the maximum for Tonga is 30 years; however, that will mean little difference in practice in Tonga because there is ample room for courts to impose lengthy finite sentences within the Zhang guidelines for very serious offending. It is important in my view that the guidelines set out in Zhang be adopted here. Drug dealing is an international activity and, as this case demonstrates, drugs are commonly carried across borders. As such, comity with New Zealand drug sentencing for methamphetamine recognises the importance of maintaining similar sentencing regimes so that Pacific Island nations such as the Kingdom of Tonga are not seen as soft or relatively benign jurisdictions in which drug dealers can risk exporting, importing into or dealing in class A drugs and in particular methamphetamine. The prime sentencing considerations in this case are deterrence, the protection of Tongan society from the evil trade and indeed denunciation of it.”

  1. R v ‘Uhila Latu (CR 66/19) - the Defendant pleaded guilty to possession of 1.29g of methamphetamine, 5.63g of cannabis and cultivating 3.36g of cannabis plant. Cato J considered the methamphetamine charge to be the most serious and set a starting point of 18 months imprisonment. For the Defendant's guilty plea and lack of previous convictions, four months were deducted resulting in a head sentence of one year and two months imprisonment. The final six months were suspended. Sentences of two months imprisonment for the cannabis offence and two months imprisonment for the cultivation offences were also imposed to be served concurrently with the methamphetamine sentence.
  2. R v Sioeli Tapueleulu (CR 158/20) - the Defendant pleaded guilty on arraignment to possession of 0.67 g of methamphetamine. It was his first drug-related offence although he had previous convictions for violence and was then in custody on a murder charge. He was sentenced to 9 months imprisonment.
  3. R v Siu Holani (CR 65/19) - the Defendant pleaded guilty at the first available opportunity to supplying 1.58 g of methamphetamine. He was also caught with 25 dealer bags ready for distribution. He was sentenced to 2 years imprisonment.
  4. In the present case, the Crown submits that the starting point for count 1 (0.86g of methamphetamine) should be 12 months imprisonment with three months off for his guilty plea resulting in a head sentence of nine months imprisonment. On count two (1.07g of methamphetamine), the starting point should be two years imprisonment, but because it was committed whilst the Defendant was on bail for the first offence, an extra six months should be added. From that, six months should be deducted for the early guilty plea, resulting in a head sentence of two years imprisonment. On count three (0.4g of cannabis), the Crown submits a sentence of two months imprisonment to be served concurrently with the sentence to be imposed on count 2.
  5. The Crown also submits, by reference to the decision in Hokafonu v R [2003] Tonga LR 249 at 259, that the sentences to be imposed on counts 2 and 3 should be cumulative to that imposed for count 1 because they are unrelated in time, the second taking place some seven months after the first. On that basis, the Crown submits that the overall starting point should be two years and nine months imprisonment, and that if any part of that is to be suspended, it should not exceed 15 months.

Defendant’s submissions

  1. In his submissions, Mr Taione accepted that the appropriate sentences in this case involve imprisonment. He points to the Defendant’s early guilty plea as evidence of his acceptance of responsibility for the offences and remorse for what he did and the shame and disappointment caused to his family. He also describes how following his arrest, the Defendant was cooperative with police to the point where he complied with a request to call the person from whom the Defendant purchased the drugs. From that information, the police were able to arrest that person, who is currently awaiting trial.
  2. The Defendant is married with five children ranging from 16 to 12 years of age. In 2019, he commenced a car washing business which is the main source of income for his family. He also earns money from polishing jewellery. It was submitted that the weighing scales and empty plastic packets were associated with the Defendant's jewellery polishing business (for weighing rings and packaging polishing powder and cream) and not with the drugs found at his house on the two occasions which the Defendant claims to have been for his own use and not for any commercial supply.
  3. Mr Taione accepted that an appropriate starting point for the offending is two years and six months imprisonment. Notwithstanding the remarks of Cato J in R v Huni [2018] TOSC 33 at [7] that "the fact that the accused has a family is not something that the court could take into account in a significant way in mitigation and personal circumstances amount to little when it comes to drug offending", Mr Taione submitted that such factors are relevant on the question of suspension, and in this case, any sentence should be suspended in full or in part.

Presentence report

  1. The Defendant is 55 years of age. He is a Fijian citizen and currently holds a valid Tongan residency permit.
  2. The Defendant first came to Tonga in 1997 for business purposes. After returning to Fiji for a few months and then travelling to Samoa, he and his wife eventually returned to Tonga where he originally earned a living selling jewellery.
  3. The Defendant's health is generally fine, although he suffers from asthma. He admitted to the probation officer that he purchases illicit drugs for personal use. Interestingly, the Defendant told the probation officer that financial hardship led the Defendant to become involved in illegal activities. That would tend to belie what he told the probation officer namely that his offending was only for personal use. He also claims to have completely quit using illicit drugs, presumably since his second arrest. The Defendant is reported to express remorse for the offending and for abusing his family's trust. Nothing more is said about the Defendant's criminal history other than he is not a first-time offender. His risk assessment is said to be low. The probation officer acknowledges that imprisonment is inevitable but asks that the sentence be fully suspended on conditions including community service and completion of a Salvation Army drugs awareness course.

Starting point

  1. The current maximum penalty for possession of class A illicit drugs, which include methamphetamines, of any weight, is a fine not exceeding $1 million or imprisonment for 30 years or both. The maximum penalty for possession of class B drugs, which includes cannabis, less than 28 g is a fine of $5,000 or one year imprisonment or both.
  2. Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply and use of insidious illicit drugs like methamphetamines. Part of that role is to ensure that sentences imposed for such offending are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.
  3. On the information available in this case, I consider the line between whether the drugs in the Defendant’s possession, on two occasions, were only for personal use or for supply to others (or both) to be marginal. On both occasions, police searched his residence following reports of dealing going on there. I am sceptical about his explanation for the many packets and scales as being related to his work with jewellery. There were no reports of any such packets containing any cleaning powder or cream for that purpose.
  4. Having regard to the seriousness of the offending and the ranges suggested by the comparable sentences referred to above, I consider the appropriate starting points to be:
  5. I agree with the Crown that the temporal gap between the two arrests makes the offending in count 1 unrelated to counts 2 and 3. That the second offending occurred while the Defendant was on bail for the first also warrants the sentence for count 2 (with count 3 being concurrent with count 2) being served cumulatively to the sentence to be imposed for count 1. That results in a total effective starting point of 2 years and 3 months imprisonment (or 27 months).

Mitigation

  1. For the Defendant’s early guilty plea, extended cooperation with the authorities and relatively good record, I reduce the starting point by one third or 9 months.

Suspension

  1. The main submission advanced in favour of suspension is that the Defendant is the breadwinner for his family of five dependent children. As discussed at length recently in R v Wolfgramm [2020] TOSC 78 at [47] to [49], the Court has repeatedly stated that the ‘breadwinner plea’ carries little weight in determining whether a Defendant should be sent to prison. Further, it is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. That any term of incarceration will cause suffering to the Defendant’s family is the result of the risk he took in deciding to involve himself with illicit drugs and on not one but two detected occasions.
  2. Of the Mo’unga considerations:[1]
  3. I also take into account the need for effective deterrence but also, to a very limited extent, the personal circumstances of the offender and those dependent on him: Rex v Vake [2012] TOCA 7.
  4. On balance, I consider it appropriate to offer the Defendant some opportunity for rehabilitation by ordering that the final 9 months of the sentence (i.e. another third of the starting point) be suspended on conditions. The final result is that the Defendant will be required to serve 9 months imprisonment.

Result

  1. The Defendant is convicted and sentenced to:
  2. The final 9 months of the total effective sentence of 18 months will be suspended for 2 years from the date of the Defendant’s release from prison on condition that during the period of suspension, the Defendant shall:
  3. 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.
  4. Pursuant to section 32 of the Illicit Drugs Control Act, 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

[1] Mo'unga v R [1998] Tonga LR 154 at 157.

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