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R v Pouono [2021] TOSC 106; CR 285 of 2020 (24 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 285 of 2020

CR 59 of 2021


REX

-v-

SIONE POUONO


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr J. Fifita for the Prosecution

The Defendant in person

Date: 24 June 2021


The charges

  1. On 14 January 2021, in proceeding CR 285/20, the Defendant pleaded not guilty to possession of:
  2. On 18 May 2021, the Defendant was found guilty on both counts.
  3. That same day, in proceeding CR 59/21, the Defendant pleaded guilty to two counts of grievous bodily harm, contrary to s 106(1), 2(b) and (2)(c), respectively, of the Criminal Offences Act.

The offending

  1. In CR 285/20, on 16 December 2019, Police received information about drug dealing at Tomasi Pouono’s residence at Lapaha. When they arrived, several officers covertly observed a vehicle turn into the residence. They then saw the Defendant switch off the exterior lights and walk over to some tanetane trees on the fence line of the property beside the house. The Defendant retrieved something from that location and gave it to the person in the vehicle. The police then raided the property and conducted a search. They found the methamphetamines and cannabis, the subject of the charges, where the Defendant had gone to the tanetane trees and $210 in cash on the Defendant. The Defendant did not co-operate when questioned.
  2. In CR 59/21, on 7 November 2020, only four days after he was granted bail by this Court in respect of CR 285/20, the Defendant was drinking alcohol with others when he got into an argument and ensuing fight with one of the males. After they calmed down, the victim went to purchase another bottle of alcohol while the Defendant went home, grabbed a chopping knife and returned to the drink up with it. Without warning or any further provocation, the Defendant then struck the victim with the knife on his nose. Then, as the victim grabbed his bleeding nose, the Defendant struck again, this time severing the victim’s right index finger from his hand. The victim was taken to hospital for treatment. The Defendant was arrested and admitted to the offending.

Previous convictions

  1. The presentence report reveals that in Magistrates Court proceeding CR 326/2016, the Defendant was convicted of a ‘minor offence’ and sentenced to 50 hours community service.
  2. Further, on 5 October 2019, in proceeding CR 122/2019, the Defendant was convicted in the Magistrates Court of possession of illicit drugs. He was sentenced to 6 months’ imprisonment. That sentence was fully suspended for 1 year. That means that the offending the subject of CR 285/20 was committed during that period of suspension.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The Crown submits that in relation to CR 285/20, there are no mitigating factors and in CR 59/21, the only mitigating factor is the Defendant’s early guilty plea.
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown’s submits the following sentence formulation:

Presentence report

  1. The Defendant is 20 years of age. He is the eldest of 12 children. He was educated to Form 3. The family’s main source of income was from fishing and their plantation. The Defendant was described as well-behaved growing up. Both his parents have convictions for drug-related offences. They exposed the Defendant to drugs at a very young age. The Defendant went on to mix with the wrong crowd and joined in their all-too-common abuse of alcohol and drugs.
  2. The Defendant continues to deny responsibility for the offending in CR 285/20, has shown no remorse and maintains that he was wrongfully accused.
  3. In relation to the offending in CR 59/21, the Defendant told the probation officer that he reacted violently because he was ‘fed up’ with the victim ‘bullying’ him and, because he had been drinking, he was not in a ‘right state of mind’ at the time. For that crime, the Defendant has shown remorse.
  4. The Defendant told the probation officer that he hopes to rehabilitate himself and change his life around. His mother reports that, since quitting alcohol, her son has ‘changed’.
  5. The probation officer opines that, without ‘extensive intervention’, the Defendant poses a high risk of reoffending. He therefore recommends that any sentence of imprisonment be only partly suspended and subject to conditions including abstention from alcohol and drugs and courses on life skills, alcohol abuse and anger management.

Magistrates Court CR 122/19

  1. Section 24(3) of the Criminal Offences Act governs suspended sentences. It provides, relevantly:

(c) In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence.

...

(e) In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year.

  1. As the offending in CR 285/20 was committed during the 12 months in which the 6-month sentence in Magistrates Court proceeding CR 122/19 was ordered to be suspended, s 24(3)(c) is engaged. There being no special circumstances to enliven subsection (5), I order that the suspension of that sentence be rescinded, and the term of imprisonment activated, to take effect with the sentences to be imposed on CR 285/20 and CR 59/21 as further detailed below.

CR 285/20

  1. The statutory maximum penalty[2] for possession of methamphetamine at the time of offending is a fine of $1 million or 30 years’ imprisonment or both. For possession of less than 28 grams of cannabis, the maximum penalty is a fine of $5,000 or 1-year imprisonment or both.
  2. As stated in R v Ali [2020] TOSC 94:
“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...”
  1. As such, the Court’s repeated stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, has been described thus:[3]
  2. Therefore, the Court’s responsibility in addressing drug-related offending involving methamphetamine is “to ensure that sentences imposed ... 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.”[4]
  3. The head count in this proceeding is count 1, possession of 0.08 grams of methamphetamines. Recently, in Tu'itavake v Police [2021] TOSC 98 at [23], I had occasion to review other comparable sentences for similar amounts, including:
  4. In Tu'itavake, which also involved possession of 0.08 grams of methamphetamines, a primary starting point of 6 months imprisonment was set.
  5. Having regard to the seriousness of the offending, the strong evidence at trial that the possession here was for the purpose of supply and the comparable sentences and principles referred to above, I set a primary starting point for count 1 of 6 months imprisonment.
  6. However, on account of the offending occurring during the period of suspension for CR 122/19, and thereby, the Defendant’s demonstrated flagrant disregard for the law and the opportunity he was afforded by the Magistrates Court, I add another 2 months, making a total starting point of 8 months’ imprisonment.
  7. The Defendant’s refusal to accept the verdict and acknowledge his responsibility together with his previous conviction for possession of illicit drugs preclude any discount for mitigation.
  8. On count 2, the Defendant is sentenced to 1 month imprisonment, to be served concurrently with the sentence on count 1.

CR 59/21

  1. The maximum penalty for causing grievous bodily harm is 10 years imprisonment.
  2. “Anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first-time offender. The likelihood of going to prison becomes a virtual certainty ... when a weapon is used”: Hu’ahulu v Police [1994] Tonga LR 93.
  3. Recently, in R v Fusikata [2021] TOSC 87, where the grievous bodily harm resulted in the victim permanently losing his sight in one eye, the Crown referred to the following comparable sentences:
  4. There, the Crown submitted a starting point of 5 years’ imprisonment.
  5. In that case, as here, where the victim has also suffered a permanent injury in the loss of a finger, I have also had regard to the following further comparable sentences:[5]
  6. Having regard to the seriousness of the offending, including the use of a knife and the premeditated and vengeful nature of the attack, the statutory maximum penalty and the panoply of comparable sentences considered above, I set a primary starting point for count 1 of 5 years’ imprisonment.
  7. However, on account of the offending occurring while the Defendant was on bail for CR 285/20, I increase the starting point by 1 year, producing a total starting point of 6 years’ imprisonment.
  8. For the Defendant’s early guilty plea, I reduce that starting point by 18 months, resulting in a sentence of 4 ½ years’ imprisonment.
  9. On count 2, the cut to the victim’s nose, I sentence the Defendant to 3 years imprisonment, to be served concurrently with the sentence on count 1.

Cumulation

  1. Each of the sentences or head sentences, as the case may be, for the three proceedings, should be served consecutively: R v Vi [2021] TOSC 91 at [27].
  2. However, having regard to the totality principle,[6] and the Defendant’s young age, I consider it appropriate to order that 2 months of the activated sentence in CR 122/19 and 4 months of the head sentence in CR 285/20 be added to the head sentence in CR 59/21.
  3. The net result is an effective head sentence of 5 years imprisonment.

Suspension

  1. I accept the Crown’s submission that no part of the sentence for CR 285/20 should be suspended. However, in the context of the above cumulation of the sentences for the three proceedings and resulting effective head sentence of 5 years imprisonment, the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157, favour some suspension. The Defendant is young. He co-operated with the authorities and pleaded guilty at the earliest opportunity in proceeding CR 59/21. The earlier fight in CR 59/21 arguably provides some diminution in culpability, although that is countervailed by the Defendant going home to get the knife. Further, the Defendant’s breach of his suspended sentence in CR 122/19 tends to suggest that, at present, he may not be amenable to rehabilitation. Over the past year or so, he has certainly excelled at making a menace of himself and an increasing danger to society.
  2. However, some cause for optimism may be found in his admission to, and remorse for, his most recent offending and that he has reportedly quit alcohol. I am also mindful of his unfortunate exposure, as a child, to drugs, which has clearly escalated since. He has also not had the support that the conditions of a partially suspended sentence can provide.
  3. I also place significant weight on the fact that the Defendant is only 20 years of age. As noted in Rex v Vailea [2020] TOSC 27 at [18]:[7]
“... the sentencing of young offenders raises special considerations: see for example the discussion in R v Churchward [2011] NZCA 531 at [77]- [92]. An offender’s youth may impinge on an assessment of their culpability. ... prison for any period is known to carry an enhanced risk of trauma for young people. And, as this Court recognised in Mo’unga v R [1998] Tonga LR 154, young offenders have a greater capacity for rehabilitation.”
  1. After considering all those matters, I have come to the view that it is appropriate to order that the final 2 years of the sentence be suspended on conditions as set out below.
  2. In the result, and subject to compliance with those conditions and any remissions he may be granted within prison, the Defendant will be required to serve 3 years in prison.

Result

  1. Pursuant to s 24(3)(c) of the Criminal Offences Act, the suspension of the sentence in Magistrates Court CR 122/19 is rescinded and that sentence of 6 months imprisonment is activated.
  2. In proceeding CR 285/20, the Defendant is convicted of possession of illicit drugs and is sentenced:
  3. In proceeding CR 59/21, the Defendant is convicted of causing grievous bodily harm and is sentenced:
  4. Two months of the sentence in CR 122/19 and 4 months of the sentence in CR 285/20 are to be added to the head sentence in CR 59/21, making a total effective sentence of 5 years’ imprisonment.
  5. The final 2 years of that sentence are to be suspended, for a period of 3 years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, the Defendant is to:
  6. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence.
  7. In proceeding CR 285/20, pursuant to:

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

[1] Applying a principle of ‘judicial mercy’ as discussed in R v Bernard (1997) 1 Cr App R 135.
[2] Section 4(1) of the Illicit Drugs Control Act.
[3] PMP [2020] TOSC 112 at [16], referring to Afu [2020] TOSC 69 and the Court of Appeal in Maile [2019] TOCA 17 approving statements by Cato J in Ngaue [2018] TOSC 38 at [5] and [6], as most recently recited in R v Hufanga [2021] TOSC 80; CR 211 of 2020 (28 May 2021).
[4] Ali, ibid, at [26].
[5] As referred to in R v Uasi [2021] TOSC 66, R v Helu [2021] TOSC 26 and R v Toutai'olepo [2020] TOSC 3.
[6] As discussed in R v 'Asa [2020] TOSC 72 at [44].
[7] Citing Rex v Toutai'olepo [2020] TOSC 3 and Rex v Tau'alupe [2018] TOCA 3 at [16].

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