R v Totau [2020] TOSC 95; CR 239 of 2020 (6 November 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 239 of 2020
REX -v- SOSIUA TOTAU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mr T. ‘Aho for the Prosecution Mr S. Taione for the Defendant
Date of sentence:	6 November 2020

Introduction

1. On 30 September 2020, the Defendant pleaded guilty to one count of possession of 400.37g of cannabis, contrary to section 4(a)(b)(ii) of the Illicit Drugs Control Act.
2. Directions were made that day 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 the next 48 hours to make arrangements for the preparation of his presentence report. On 23 October 2020, the Chief Probation Officer advised that the Defendant failed to attend the probation office and that they did not know his whereabouts or have any other means of contacting him. Accordingly, no presentence report has been filed.

The offending

3. On 30 March 2020, police were conducting routine Covid-19 traffic checks. As part of that operation, they stopped a vehicle in which the Defendant and Likamani Faka’osi were driving. Police searched the vehicle and found cannabis which is the subject of other charges.
4. At the same time, police received information that drugs were being sold at the Defendant's residence. They then conducted a search of the Defendant’s residence and found a large plastic bag containing cannabis leaves and seeds. The Defendant said he had no knowledge of it. He was then cautioned and arrested. Police also found cash inside a pillow and various small plastic bags in a number of locations around the house.
5. Upon further questioning, the Defendant admitted that the cannabis belonged to him.

Crown's submissions

6. The Crown submits that the aggravating feature in this case is the substantial weight of the cannabis.
7. The mitigating features are that the Defendant cooperated with Police, pleaded guilty at the earliest opportunity and is a first offender.
8. The Crown refers to the following comparable sentences:
   • 8.1 Vea v R [2004] Tonga LR (CA) - the Court of Appeal adopted the following categorisation of offences of possession or cultivation of cannabis identified by the New Zealand Court of Appeal in R v Terewi [1999] NZCA 92; [1999] 3 NZ LR 62:
     • 8.1.1 small quantities for personal use, for which non-custodial sentences were generally appropriate;
     • 8.1.2 small scale commercial purposes, for which a starting point of between two and four years may be appropriate; and
     • 8.1.3 large scale growing for commercial purposes, for which a sentence in excess of four years is appropriate.

The New Zealand Court of Appeal also considered that personal circumstances are generally irrelevant when sentencing for drug offending.

8.2 Christopher Ta’ufo’ou (Unreported, Supreme Court, CR 62 of 2017, 17 December 2018, Justice Cato) – a 30 year old married man with children, pleaded guilty to possession of 635.54 grams of cannabis. Cato J set a starting point of three years and three months. That was reduced by 12 months in mitigation for his guilty plea, expression of remorse, previous good character and, to a limited degree, for the fact that he was the breadwinner of his family. The final 12 months of the remaining two years and three months was suspended on conditions.
8.3 Rex v Fele’unga Tupou (Unreported, Supreme Court, CR 57 of 2017, 28 July 2017, Justice Cato) - the Defendant pleaded guilty to possession of 264 grams of cannabis. He was sentenced to 18 months imprisonment which was fully suspended on conditions including 70 hours community service. The reasons for the full suspension were not included in the Crown’s submissions.
8.4 Rex v Tevita Talia’uli Fatongiatau (Unreported, Supreme Court, CR 138 of 2019, 28 August 2019, Justice Cato) - the Defendant was found guilty of possession of 159.13 grams of cannabis and of methamphetamine. He was sentenced on the cannabis charge to six months imprisonment to be served concurrently with his sentence for possession of methamphetamine (which was two years and six months imprisonment with the final 12 months suspended on conditions).

9. In the present case, the Crown submits that:
   • 9.1 an appropriate starting point of between 2 years, 9 months and 3 years imprisonment;
   • 9.2 which should be reduced by 12 months for the Defendant’s early guilty plea, previous good character and cooperation with Police; and
   • 9.3 the Defendant is eligible for partial suspension pursuant to the principles in Mo’unga v R [1998] Tonga LR 154.

Defendant’s submissions

10. Mr Taione filed very brief submissions on 29 October 2020, when the sentence was originally listed for 30 October 2020. The defendant did not appear that day, because, according to a medical certificate produced by Mr Taione, he was ill for that day. The sentence was therefore adjourned to today.
11. Mr Taione adopts the Crown's submissions on sentence.
12. He added that the defendant is 25 years of age, married with one 3 year old daughter. He works in his family's plantation with his wife and is not otherwise employed. He admitted to the possession of the cannabis when interviewed and has instructed Mr Taione that he obtained the cannabis from a person in ‘Eua.

Starting point

13. The maximum statutory penalty for possession of a Class B illicit drug of 28 grams or more, is a fine of $50,000 or imprisonment for 7 years or both.
14. The quantity of cannabis in this case clearly places it in the small commercial category referred to in Terewi for which a starting point between two and four years imprisonment is appropriate. Having regard to the comparable sentences referred to above, I consider the appropriate starting point here to be three years imprisonment.

Mitigation

15. On account of the defendant’s early guilty plea, cooperation with police and previous good record, I reduce the starting point by 12 months resulting in a sentence of two years imprisonment.
    

Suspension

16. On the question of suspension, very little is known about the defendant's personal circumstances other than that he is 25 years of age, married and has no previous convictions. Against that relatively benign background, the fact that he has been convicted of possessing some 400g of cannabis, with the clear commercial connotations attached to that quantity, is a matter of significant concern.
17. Notwithstanding any doubts about the Defendant’s remorse or propensity for rehabilitation, I am satisfied, having regard to the considerations in Mo’unga, that it is appropriate to afford him an opportunity for rehabilitation by suspending part of his sentence.
18. Therefore, I will order that the final 12 months of his sentence be suspended for a period of 18 months on conditions. The net result is that he will be required to serve 12 months imprisonment.

Result

19. The defendant is convicted of possession of cannabis and is sentenced to 2 years imprisonment.
20. The final 12 months of that sentence will be suspended for a period of 18 months from the date of his release from prison on conditions that during the period of suspension, the defendant shall:
    • 20.1 not commit any offence punishable by imprisonment;
    • 20.2 be placed on probation; and
    • 20.3 complete a course in drug awareness as directed by his probation officer.
21. The defendant is reminded that should he fail to comply with any of the above conditions, he may be required to serve the balance of his term of imprisonment.
22. Pursuant to s.32(2)(b) 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
6 November 2020		LORD CHIEF JUSTICE