R v Kaufusi [2021] TOSC 100; CR 324 of 2020 (15 June 2021)

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

CR 324 of 2020

REX
-v-
KALATONI KAUFUSI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr J. Fifita for the Prosecution
The Accused in person
Date: 15 June 2021

1. At the conclusion of a trial spanning five days, the Defendant was found guilty of unlawful possession of 0.12 grams of methamphetamine.
2. I proceeded with sentencing immediately thereafter.
3. The facts of the offending may be shortly stated. On 13 August 2020, after receiving reliable information that the Defendant was selling drugs in the area, police intercepted the Defendant near Rodney’s liquor store in Fanga. He was approaching a vehicle on the other side of the road with something in his hand. As he was being apprehended, the Defendant threw an empty match box and two smalls packs of methamphetamine on the ground nearby. He pretended to not know what the items were or to whom they belonged. The matchbox was identical to a number of others found in his car nearby together with a number of loose matchsticks found in the console of the car. After alleging that police planted the drugs or staged the photographs of them that were tendered during the trial, the Defendant then gave evidence that he dropped a different matchbox in a different location. That evidence was rejected as recent invention.
4. During submissions on sentence, the Defendant admitted the offending.
5. The Crown informed the Court that the Defendant has no previous convictions and submitted a starting point of 12 months imprisonment.
6. I then heard from the Defendant. He is 59 years of age. He was raised in San Francisco, California. He worked for 36 years as a member of the Teamsters Union, truck driving and working on the docks. It was during that period that the Defendant started using prescription medication for staying awake while truck driving. That led to drug abuse and his involvement with methamphetamines over the past 10 years. He has never received treatment for his drug problem. He is married with four children, aged 20 to 14. They are still in the United States. In 2014, the Defendant was deported to Tonga due to a 1981 conviction for grand theft auto, and for which he served a year in prison. His only family in Tonga is a brother. He is officially retired here but still does construction work from time to time with his brother and his landlord.
7. I have considered a number of recent comparable sentences. In Talia’uli Fatongiatau (CR 216/20, 2 February 2021), the defendant pleaded not guilty to possession of 0.09 grams of methamphetamine. He was 34 years of age and had previous convictions. Langi AJ sentenced him to 21 months’ imprisonment with no suspension. In Vainikolo Selu (CR 202/20, 14 December 2020), the defendant was convicted of possession of 0.1 grams of methamphetamine. He too had previous convictions. Langi AJ sentenced him also to 21 months’ imprisonment without suspension. In ‘Inoke Hu’akau (CR 247/20, 27 November 2020), the 39 year old defendant pleaded guilty to possession of 0.1 gram of methamphetamine. It was his first offence. He was sentenced to six months, fully suspended, on conditions including 40 hours community service. A similar result obtained in Vilimoa Afu (CR 177/20, 10 September 2020). The 35 year old defendant there pleaded guilty to possession of 0.11 grams of methamphetamine. He had no previous convictions. He was also sentenced to six months imprisonment, fully suspended. In Kalolaine Fainga’a (CR 276/20, 3 December 2020), the 30 year old defendant pleaded guilty to possession of 0.13 grams of methamphetamine and 2.4 grams of cannabis. Lord Tupou AJ sentenced him to 12 months’ imprisonment, fully suspended on conditions.
8. In this case, having regard to all the above matters, I consider the appropriate starting point to be nine months imprisonment. On account of the Defendant’s clean record, here in Tonga at least, I discount that by one month. Had the Defendant pleaded guilty when arraigned, he could have expected a discount of three months.
9. The resulting sentence is eight months imprisonment.
10. On the question of suspension, most of the considerations in Mo’unga v R [1998] Tonga LR 154 at 157 do not favor suspension here. The Defendant is not young. He has a good previous record here in Tonga but has a conviction in the United States, albeit for an unrelated offence. He did not cooperate with the police. There was an obvious degree of premeditation in the offending. He has shown no remorse until now, at the last minute, during the sentencing phase. That was clearly demonstrated by his not guilty plea, the fact that he had no real defence to the charge in the face of clear and overwhelming evidence, and the preposterous allegations he made against the police seeking to impugning their integrity and that of the investigation. Further, as indicated in the reasons for verdict, the facts of this case strongly support an inference that the methamphetamine in the matchbox was intended for the purpose of supply.
11. Those factors leave me ambivalent about whether Mr Kaufusi would respond to a suspended sentence in terms of rehabilitating himself. I am also reminded that deterrence in cases such as the present is a very important consideration, not just for the defendant himself but for the community as a whole and those within the community who might be considering getting involved or staying involved with illicit drugs.
12. In all those circumstances, I consider it appropriate to suspend the final four months of the eight month sentence, for a period of 12 months, from the date of the Defendant’s release from prison, 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 of being released;
    • (d) reside where directed by his probation officer; and
    • (e) complete a drugs and alcohol awareness course as directed by his probation officer.
13. Failure to comply with those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence.
14. Pursuant to:
    • (a) s 32(2)(b) of the Act, the drugs the subject of this proceeding are to be destroyed; and
    • (b) s 33, the cash seized is to be forfeited to the Crown.
      

NUKU’ALOFA	M. H. Whitten QC
15 June 2021	LORD CHIEF JUSTICE