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R v Fekau [2021] TOSC 108; CR 102 of 2021 (1 July 2021)

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


CR 102 of 2021


REX


-v-


‘OPETI FEKAU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr T. ‘Aho for the Prosecution
The Defendant in person
Date: 1 July 2021


The charges

  1. On 25 May 2021, the Defendant pleaded guilty to possession of 0.94 grams, 3.73 grams, 0.28 grams, 0.91 grams and 15.38 grams of methamphetamine.

The offending

  1. On 3 December 2020, police received information that drugs were being sold at the Defendant’s residence in Havelu. When the police arrived, the Defendant was seen running inside the house and was intercepted. Police searched the property and found numerous packs of methamphetamines, other empty packs, test tubes, straws, weighing scales, $438 in cash and books with records of weights. The Defendant partially co-operated with police by admitting to ownership of the items found inside the house, and that they included ‘ice’, but he denied any knowledge of drugs found outside the house. When later questioned by police, the Defendant chose to remain silent.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. Mitigating features are said to be the Defendant’s:
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentence formulation:

Presentence report

  1. The Defendant is 38 years of age. He is the eldest of three children. He is reported to have enjoyed a generally good upbringing. He left school during Form 6 but managed to later graduate with a Master Class 4 to become a seafarer. However, at a young age, the Defendant submitted to negative peer pressure which resulted in serious criminal activity. He admitted to being a long-time drug user.
  2. In 2015, the Defendant married. He and his wife have three children aged between 4 and 14, the eldest two being from his wife’s previous marriage. She is said to now be seven months pregnant with their fourth. The Defendant is the sole breadwinner for his family. The probation officer reported, presumably on information provided by the Defendant, that prior to his arrest on the instant offending, the Defendant earned "a lot of money from supplying and selling illegal drugs". He currently works delivering wholesale stock for which he earns $210 per week.
  3. The family is also "currently facing a very hard time" following the conviction of the Defendant's father-in-law earlier this year for incest. The Defendant's wife describes their marriage as problematic due to her husband’s involvement with illegal drugs. She said that the Defendant used and sold illicit drugs from their home and that when he was affected by drugs, he was often abusive and violent. However, the Defendant's wife also reports that since his arrest on the present matter, his behaviour has improved markedly, he has quit drugs and is now a committed and active member of the Tonga Gospel Fellowship as confirmed by Rev. Ngalu.
  4. The Defendant has expressed remorse for what he has done and asks the Court for leniency and mercy mainly because he is his family's only breadwinner.
  5. The officer recommends a partially suspended prison sentence on conditions including an alcohol and drugs awareness course while in prison with Rev. Semisi Kava and the Free Wesleyan Church Lifeline and Crisis Centre.

Defendant’s previous convictions

  1. In the summary of facts, filed 13 May 2021, the Crown stated that the accused has previous convictions [28]. However, in the Crown's sentencing submissions, it was said that "the accused is a first-time offender" [4(2)].
  2. The probation officer reported that the Defendant admitted to having one previous criminal conviction for armed robbery in 2008 for which he was sentenced to 9 years' imprisonment.
  3. In light of that apparent confusion, I have had regard to the decision in Foliaki v Rex [2015] TOCA 12, in which the Court of Appeal referred to the Defendant’s involvement in a number of charges relating to two armed robberies, for which he and his co-accused were sentenced on 7 November 2008, as follows:
“[11] Mr. Fekau was sentenced on one count of abetment of robbery in relation to the March robbery and charges of armed robbery, conspiracy to commit armed robbery and unlawful possession of a firearm in relation to the second robbery. Unlike the others he had no previous convictions. From a starting point of 15 years, the sentencing judge deducted 2 years to take account of Mr. Fekau's guilty pleas, imposing sentences of 13 years on the armed robbery charges with concurrent sentences of 5 years on the lesser firearms and robbery charges. He suspended the last 4 years for 3 years, reducing the time Mr. Fekau would be required to serve to 9 years.”
  1. The evening before this sentence was to be delivered, the Court was further informed by Crown Law that on 17 June 2018, in Magistrates Court proceeding CR 396/18, the Defendant was convicted of receiving stolen goods and sentenced to 4 months’ imprisonment, fully suspended for 12 months.

Separate counts – dilution of sentences

  1. By the terms of the indictment, the Crown determined to charge the Defendant with five separate counts of possession of methamphetamines, with count 5 being for the greatest amount, namely, 15.38 grams.
  2. However, the Crown also submits, as a circumstance of aggravation, that by aggregating the amounts in each count, the Defendant was found in possession of a total of 21.24 grams of methamphetamine.
  3. The difference in sentences for the two said amounts of methamphetamines can be significant. Yet, as all the offences occurred at the same time and place, the sentences for the lesser amounts will usually be required to be served concurrently with the head count. That means that the highest sentence must be for that count and not one reflecting the aggregate of all the counts. Therefore, separating the amounts of methamphetamines found into different counts has the practical effect of diluting the sentences to be imposed compared to the sentence that should be imposed to reflect the total criminality of the offending.
  4. Accordingly, in future, where the evidence firmly points to, for instance, no issue as to ownership of various amounts of illicit drugs found in the one location or as to any remoteness in locations between various amounts of drugs found, consideration ought be given to charging an accused with one count of possession of the aggregate amount of all the illicit drugs found. If, at trial, it transpires that the evidence only supports certain of the drugs as being within the accused’s knowledge and custody or control, an application to amend the particulars of the count could be made to align them with the evidence. Conversely, only where issues arise such as there being more than one person in the location of a search at the relevant time or where the locations of the drugs found are sufficiently distant to cast doubt on whether the accused had the requisite knowledge, custody or control of all of them, should an indictment separate into individual counts each amount of drugs by reference to where they were found.

Starting points

  1. For offences occurring prior to 8 December 2020, s 4 of the Illicit Drugs Control Act provides a maximum penalty for possession of Class A drugs, such as methamphetamines, of a fine not exceeding $1 million or imprisonment for 30 years or both.
  2. Sadly, the Court’s repeated stance on illicit drugs, and the approach taken to sentencing, particularly for methamphetamines, must once again be recited as it was, most recently, in R v Hufanga [2021] TOSC 80, as follows:
  3. And 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, and 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 as well as to provide incentive and opportunity for rehabilitation of those who have succumbed.’[2]
  4. The guidelines for sentencing for possession of Class A drugs provided by the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507 have been regularly adopted by this Court: R v Moala [2021] TOSC 86. Band 2 of those guidelines, for between 5 and 250 grams, indicates a sentence of 2 to 9 years imprisonment.
  5. Apart from the significant amount of methamphetamines comprising count 5 alone, the other packs and drug-related paraphernalia seized during the search, coupled with the admission by the Defendant and corroborative statements by his wife to the probation officer, support a clear inference that he was a drug dealer: R v 'O Pangai [2021] TOSC 50 at [16]. The offending here occurred five days before the amendments came into force, which would otherwise have deemed all the counts (over 0.25 grams) to be supplying. As observed in R v Afu [2021] TOSC 61, while the Defendant has been charged with, and has pleaded guilty to, possession, the facts here strongly indicate possession for the purpose of supply. Sentences for offending of that nature must be more severe than those for possession simpliciter such as only for personal use.
  6. In addition to the comparable sentences referred to by the Crown of Fotu and Ngaue, in Afu, ibid, the starting point for possession of 14.34 grams of methamphetamine was set at 4 years imprisonment.
  7. Having regard to the seriousness of the offending, the amount involved, that it was clearly for the purpose of supply and the comparable sentences and principles referred to above, I set a starting point for count 5 of 4 ½ years (or 54 months) imprisonment.
  8. By a similar comparative process, I set the following prison terms as starting points for counts 1 to 4:

Mitigation

  1. For the Defendant’s early guilty plea, I reduce those starting points by approximately 25%: R v Selupe [2021] TOSC 47 at [27].

Resulting sentences

  1. The resulting sentences for each count are therefore:
  2. As predicted above, the sentences on counts 1 to 4 are to be served concurrently with the sentence on count 5.

Suspension

  1. Of the considerations on suspension discussed in Mo’unga [1998] Tonga LR 154 at 157:
  2. As noted recently in R v Hafoka [2021] TOSC 97, the considerations referred to in Mo’unga are not the only factors:
“Also relevant may be the seriousness of the offending, the need for effective deterrence, ... and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason, rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate".[3]
  1. Further, in relation to the Defendant’s ‘breadwinner plea’, the Courts have repeatedly explained that such a consideration attracts very little weight and ‘is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence’. For a detailed discussion, see R v Wolfgramm [2020] TOSC 78 at [46] to [49]. In short, any suffering experienced by the Defendant’s family during his incarceration will be a direct result of his decision to commit, yet again, serious crime, from which they have indirectly benefitted and those whom the Defendant has supplied have suffered. Further, there is every reason to believe that unless and until the Defendant has demonstrated an enduring freedom from drugs, his wife and children may be safer without him.
  2. I also confess to a certain degree of skepticism in relation to the accounts of the Defendant’s reform and remorse. All too often, the Courts are presented with similar claims by those, particularly drug addicts, who have been caught out, who never sought to change their ways prior to being caught, and who are versed in invoking the visages of rehabilitation prior to sentencing such as expressions of remorse, returns to the church, obtaining gainful employment and, as here, conceiving yet another child at or about the time of the offending or whilst on bail for it. Here, the Defendant’s criminal history does not engender confidence that his recent and apparent transformation is likely to be permanent.
  3. Ultimately, in my view, the scales here are tipped by the Defendant’s previous sentence for armed robbery related offences in which the final 4 years were suspended (impossibly[4] for 3 years) and, more recently, a fully suspended sentence for receiving stolen goods. Notwithstanding serving 9 years imprisonment (subject to remissions) for the armed robbery offences and the opportunities afforded by suspensions of a substantial portion of that sentence and the whole of the most recent sentence, the Defendant has gone on to engage in serious drug offending and for admittedly commercial gains. In doing so, he has demonstrated a flagrant disregard for the law and the opportunities he was offered. If, since his arrest on the instant offences, he has in fact determined to change, then that commitment may be supported and confirmed through rehabilitative courses within prison and will hopefully continue upon his release.
  4. In those circumstances, I am not satisfied that any suspension of the sentences is justified.

Result

  1. The Defendant is convicted of possession of methamphetamines and sentenced to the following terms of imprisonment:
  2. The sentences on counts 1 to 4 are to be served concurrently with the sentence on count 5.
  3. I direct that, if possible, the Defendant be permitted to attend alcohol and drugs awareness courses while in prison as conducted by Rev. Semisi Kava and the Free Wesleyan Church Lifeline and Crisis Centre.
  4. Pursuant to:

NUKU’ALOFA
M. H. Whitten QC
1 July 2021
LORD CHIEF JUSTICE

[1] 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].
[2] Ali [2020] TOSC 94 at [26].
[3] Citing Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.
[4] Rex v Misinale [1999] TOCA 12.

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