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R v Pangi [2021] TOSC 118; CR 74 & 76 of 2021 (14 July 2021)
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 74 & 76 of 2021
REX
-v-
[1] ‘ATAPANI PANGI
[2] MANU HUNI
SENTENCING REMARKS
BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms T. Kafa for the Prosecution
The Defendants in person
Date: 14 July 2021
The charges
- ‘Atapani Pangi (CR 74/21), Matangi Fetu’u’aho (CR 75/21) and Manu Huni (CR 76/21) were all charged jointly with
possession of 183.33 g of cannabis (count 1). Pangi and Fetu’u’aho were also charged with possession of 37.7 g of cannabis
(count 2). Huni was charged with possession of utensils and knowingly permitting his house to be used for the possession of cannabis
by the other two (counts 3 and 4). Fetu’u’aho was also charged with possession of 1.16 g of cannabis (count 5).
- On 26 April 2021, Fetu’u’aho pleaded guilty to all counts against him. On 1 June 2021, he was sentenced for those offences
as well as other drug offences in CR 58/21.
- The present defendants pleaded not guilty to all charges against them. Following a trial on 8 and 9 June 2021, Pangi was found guilty
of the two counts against him and Huni was found not guilty on count 1 but guilty on counts 3 and 4. They appear for sentencing
today on those counts.
The offending
- On 28 December 2020, Police received information that Fetu’u’aho was selling drugs from his residence. While driving to
his residence, Police were informed that Fetu’u’aho had gone to Huni’s residence at Fo’ui. When they arrived
at Fo’ui, police saw Fetu’u’aho and Pangi with a sizeable amount of cannabis being placed into smaller packs in
the middle of the lounge room floor (count 1). Huni was sitting on a bed nearby watching them. When police entered the house, Fetu’u’aho
and Pangi picked up some of the cannabis and attempted to escape by running out the back door. They were intercepted by police and
several packs of cannabis fell from their hands (count 2). During the ensuing search, police found numerous packs of cannabis,
cannabis leaves, 415 empty plastic packs and bongs in the form of aluminium cans shaped for use in smoking drugs, two of which were
found in Huni’s bedroom and another in his outdoor kitchen (count 3). When questioned at the scene, Fetu’u’aho
admitted to the offending. Huni blamed Fetu’u’aho and Pangi. Pangi said that the cannabis belonged to him and Fetu’u’aho.
During their records of interview on 4 January 2021, Pangi did not admit to the offending and Huni chose to remain silent.
‘Atapani Pangi
Crown’s submissions
- In relation to Pangi, the Crown submits the following as aggravating features:
- (a) drugs are a serious issue in Tonga;
- (b) the packing of the cannabis indicates it was for the purpose of a small commercial supply; and
- (c) he attempted to flee the scene with drugs.
- The only mitigating factor is Pangi’s lack of any previous criminal convictions.
- The Crown referred to the following comparable sentences:
- (a) Vea [2004] TOCA 7 – the Defendant was convicted of possession and growing Indian hemp comprising 20 branches, a total of 125 seeds and one joint.
While on bail, he was found with another 8 plants and dried branches and leaves. He was sentenced to 9 months for the first possession
charge, 2 years for the second and 3 years for growing the marijuana. The last two sentences were to be served concurrently but cumulative
on the first making a total of 3 years 9 months. The last 1 year and 9 months were suspended for 2 years.
- (b) Fetu’u’aho [2021] TOSC 83 – the co-accused referred to above had no previous convictions. On the head count of possession of 183.33 grams of cannabis,
a starting point of 2 years and 9 months (33 months) was set, which was reduced by 11 months for mitigation, resulting in a sentence
of 22 months’ imprisonment. On the count of 37.7 grams of cannabis, he was sentenced to 12 months’ imprisonment. For
possession of utensils in CR 58/21, he was sentenced to 12 months’ imprisonment.
- Here, the Crown submits the following sentence formulation:
- (a) a starting point of 33 months imprisonment for the head count 1;
- (b) 12 months imprisonment for count 2;
- (c) reduced by 5 months for mitigation; and
- (d) no suspension.
Presentence report
- ‘Atapani Pangi is 33 years of age. He is the youngest of four children. He had a good upbringing. He dropped out of school in
Form 3. He has been responsible for taking care of his mother who suffers from serious health issues. He works in construction where
he has been earning $350 per week. His employer describes him as a competent employee. He also works in a plantation and owns a small
piglet farm which helps support his family’s needs. He has a long history of alcohol addiction and illicit drug use.
- To the probation officer, ‘Atapani admitted to the offending and expressed remorse. The town officer (who provided a letter
of support) reported that ‘Atapani has demonstrated positive behaviour through his involvement in community activities.
- Contrary to the Crown’s submission, the probation officer reported from the court case management system that ‘Atapani
has previous convictions in the Magistrates Court for drunkenness (2010 and 2019), wilful damage to property and conspiracy to commit
wilful damage to property (2009). All those matters resulted in fines.
- The probation officer recommends partial suspension on conditions.
Starting point
- The maximum statutory penalty for possession of 28 grams or more of a Class B drug a $50,000 fine, 7 years’ imprisonment or
both. Section 4(2)(a)[1] of the Illicit Drugs Control Act now deems possession of 7 grams or more to be supplying.
- Recently, in R v Finau [2021] TOSC 96, I referred to the Court of Appeal decision in Vea [2004] TOCA 7, where that Court referred to the guidelines for cannabis offences provided by the New Zealand Court of Appeal in R v Terewi [1993] 3 NZLR 62 as follows:
“[14] The decision ... provides guidance, although this Court immediately acknowledges that consideration must be given to the
different social conditions in Tonga and to the different maximum penalties that apply here compared with those which apply in New
Zealand. Having said that we note the following matters referred to by Court of Appeal in the above case.
[15] The Court in Terewi identified three categories of offending. The first related to the growing of marijuana or as it is called
here Indian hemp in small quantities for personal use. The Court said that in such cases a non-custodial sentence was generally appropriate. A similar approach is taken in relation to charges of possession for personal use. In a case
of growing for small scale commercial purposes, the Court has said that a starting point of between two and four years may be appropriate and for large scale growing for commercial purposes, a sentence in excess of four years is appropriate. A similar scale of sentencing applies to possession of cannabis. The New Zealand Court of Appeal has also made it
clear on numerous occasions that personal circumstances are generally irrelevant when sentencing for drug offending.”
- The Court of Appeal in Vea also referred to its decision in Tuita v R [1999] Tonga LR 152 at 156, where the Court opined:
“In our view, a conviction for growing any significant amount of marijuana should carry a sentence within the range of three
to five years imprisonment. That sentence would not normally be suspended in whole or in part unless there are good reasons relating
to rehabilitation, along the lines of the judgment of this Court in R v Misinale (CA 13/99, 23 July 1999). Further we consider that
similar sentences should be imposed on persons convicted of possession for supply of amounts of marijuana that indicate a commercial
scale operation.”
- As noted in Finau [17], on the distinction between sentences for personal use and for supply, the Court of Appeal agreed with the remarks of Ward CJ
in June 2001, where His Honour made it clear that:
“[18] ... possession of any drug including cannabis in a small quantity for personal use will in future result in a sentence
of imprisonment although that sentence will be suspended for a first offender. ... in every case where there is evidence of supply
to others the sentence will inevitably be a longer term of imprisonment and suspension of the sentence in any such case would not
be appropriate. ... anyone who sells drugs can expect to go to prison for a very substantial length of time.”
- Almost 20 years on, those views, particularly in relation to supplying, remain reflected in decisions such as R v Latuselu [2021] TOSC 19, in which this Court opined:[2]
“13. .... Supply is to be regarded as a more serious and insidious crime than mere possession for personal use. Apart from the
minority of cases involving self-production for personal use, illicit drug use leading to almost universal and inevitable addiction
is not possible without the supply of those drugs. It is also suppliers who facilitate and spread the destruction caused by drug
use and abuse, usually for their own financial gain, in return for the eventual, and often irredeemable, suffering of drug users
and often their innocent family members.”
- Thus, in R v Kalonihea [2020] TOSC 68 at [19], in acknowledgment of the superadded evils committed by those who supply drugs, the Court stated:
“ ... for first offenders on possession charges, the court should endeavour to afford Defendants a chance of rehabilitation.
The same may not be said for those who engage in trafficking or supply of any amounts, even if they are first offenders.”
- Having regard to the seriousness of the offending, the amount of cannabis involved deeming the possession to be supplying, which I
consider falls within the category of a small commercial purpose described in Terewi, the comparable sentences and principles referred to above, I set the following starting points:
- count 1 – 2 years and 9 months’ imprisonment; and
- count 2 – 12 months’ imprisonment.
Mitigation
- As the present offences represent the Defendant’s first detected drug offending, and his previous convictions are quite old
and/or unrelated, I am prepared to discount the starting points by 5 months and 2 months respectively. Given his recent confession
to the probation officer, the Defendant regrettably robbed himself of a greater discount by not pleading guilty at the earliest opportunity.
- The resulting sentences therefore are:
- (a) count 1 – 2 years and 4 months (28 months) imprisonment; and
- (b) count 2 – 10 months imprisonment, to be served concurrently with the sentence on count 1.
Suspension
- Of the considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157, the Defendant:
- (a) is not particularly young;
- (b) has minor non-drug related previous convictions;
- (c) premeditated the offending;
- (d) did not fully co-operate with the Police;
- (e) maintained his innocence at trial through a very weak defence; and
- (f) has only belatedly acknowledged responsibility for his wrongdoing and expressed remorse.
- However, I give some weight to his family circumstances and responsibilities. By his decision to get involved with illicit drugs,
and to the extent of deemed supplying, the Defendant has not only betrayed his community but also his family’s trust in, and
dependence on, him. Insofar as he relies on the so-called ‘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’: R v Wolfgramm [2020] TOSC 78 at [46] to [49].
- I also take into account the reports of the Defendant having made some positive changes in his behaviour since being arrested on this
matter. From that, there are some grounds for expecting that he will take the opportunity afforded by a partially suspended sentence
to rehabilitate himself. Further, given his reported long term drug abuse, I consider it appropriate to order partial suspension
on conditions which will assist the Defendant to hopefully rid himself of drugs once and for all and provide effective deterrence.
- In those circumstances, I will order that the final 12 months of the head sentence be suspended on conditions as set out below.
- In the result, and subject to compliance with those conditions and any remissions granted within prison, the Defendant will be required
to serve 16 months in prison. I regard the differential in that outcome compared to Fetu’u’aho, whose ultimate sentence
requires him to serve 11 months, to be appropriate in light of the latter’s completely clean record and early guilty plea.
Manu Huni
Crown’s submissions
- In relation to Manu Huni, the Crown submits the following as aggravating features:
- (a) drugs are a ‘huge issue’ in Tonga;
- (b) the packs of cannabis found were for the purpose of supply; and
- (c) the presence of unlawful utensils at his residence suggested that he is a drug user.
- The Crown submits that Huni has been convicted:
- (a) in this court in 2002 for indecent assault and abduction for which the defendant was sentenced to 15 months imprisonment on each
count to be served consecutively but "suspended to 2 years";
- (b) in the Magistrates Court in 2009 and 2010 for drunkenness for which he was fined; and
- (c) in 2016 for driving under the influence of alcohol for which he was also fined.
- However, in relation to mitigating factors, the Crown notes that Huni has "no relevant criminal conviction".
- Apart from the sentence in Fetu’u’aho of 12 months imprisonment for possession of utensils, the Crown did not provide any other comparable sentences in relation to the
offences for which Huni is to be sentenced.
- Here, the Crown submits the following sentence formulation:
- (a) the head sentence is count 4;
- (b) a starting point of 15 months’ imprisonment;
- (c) 9 months’ imprisonment on count 3; and
- (d) no suspension.
Presentence report
- Manu Huni is 40 years of age. He is the third of ten siblings. He grew up in a large family. Their main source of income was their
father’s plantation. Manu left school in Form 3 to help his parents. His siblings all left to pursue further education and
have their own families while he remained with his parents. After years of looking after her, his mother passed away last year. His
sister describes him as a good person who has sacrificed much for their family, especially his siblings. He is formally unemployed
but receives $350 to $500 per week from his siblings as part of a promise they made to their mother to look after him.
- In relation to the offending, the Defendant admitted to the probation officer that he used the utensils for smoking cannabis (which
he denied at trial) and tobacco. However, he still maintains that he was not aware of his co-accused coming into his home with the
cannabis, even though the uncontradicted evidence at trial was that he was sitting right in front of Pangi and Fetu’u’aho
while they were packing cannabis. The report also records that the Defendant has no previous convictions. The source of that information
is not disclosed.
- The probation officer reports that the Defendant is regarded as a low risk offender who is remorseful and who is trying to live a
more positive life by getting involved in community and church activities. The officer recommends a fully suspended sentence on conditions.
Starting point
- The recently introduced ss 5A and B of the Illicit Drugs Control Act provide identical statutory maximum penalties for unlawful possession of utensils and for permitting the use of premises for the
commission of an offence, namely, a $10,000 fine or 3 years’ imprisonment, or both.
- Having regard to those provisions, the seriousness of the offending, particularly, count 4, where the Defendant allowed Pangi and
Fetu’u’aho to use his house to pack cannabis for supply, and the sentence in Fetu’u’aho for possession of
utensils (which included a can for smoking cannabis and a utensil for smoking cannabis oil), I set the following starting points:
- (a) count 3 – 12 months’ imprisonment; and
- (b) count 4 – 18 months’ imprisonment.
Mitigation
- By reason only of the Defendant’s relevantly clean record, I reduce those starting points to sentences of:
- (a) count 3 – 10 months imprisonment to be served concurrently with the sentence for count 4; and
- (b) count 4 – 15 months imprisonment.
Suspension
- Application of the considerations for suspension in Mo’unga, ibid, to the present case produce a mixed result. The Defendant is not young. He is not a first time offender, although this is
his first detected drug-related offending. He did not co-operate with the police and did not plead guilty at the earliest opportunity.
I am also concerned by his refusal to accept responsibility for count 4 in the face of overwhelming evidence against him at trial
and the pitiful defence attempted by suggesting that Pangi and Fetu’u’aho were trespassers. I am also concerned by the
fact that by the amount of cannabis Pangi and Fetu’u’aho were dealing with, right in front of him, the Defendant must
have been aware that they were doing so for the purpose of supply.
- With the passing of his mother, the Defendant no longer bears the burden of looking after her. Rather, it appears he has become a
financial burden on his siblings.
- But for his relevantly clean record, long period since his only serious conviction in 2002 and the probation report assessment of
him representing (what I interpret was meant as) a low risk of reoffending, I would only have been minded to suspend part of the
head sentence. However, in all the circumstances, I am prepared to give the Defendant this, and most likely only, opportunity for
reform and abandonment of drugs. I will therefore order that the sentences be fully suspended albeit in accordance within additional
conditions as set out below.
Result
- ‘Atapani Pangi is convicted of possession of cannabis and is sentenced to:
- (a) count 1 - 2 years and 4 months (28 months) imprisonment; and
- (b) count 2 – 10 months imprisonment, to be served concurrently with the sentence on count 1.
- The final 12 months of the head sentence are to be suspended for a period of 2 years from the date of the Defendant’s release
from prison, on condition that during the said 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 his release from prison; and
- (d) complete courses on alcohol and drugs awareness and life skills with the Salvation Army as directed by his probation officer.
- Manu Huni is convicted of possession of utensils and of permitting his residence to be used for the possession of cannabis and is
sentenced to:
- (a) count 3 – 10 months imprisonment to be served concurrently with the sentence for count 4; and
- (b) count 4 – 15 months imprisonment.
- His sentence is to be fully suspended for a period of 2 years from this day on conditions that during that period, the Defendant is
to:
- (a) not commit any offence punishable by imprisonment;
- (b) be placed on probation;
- (c) report to the probation office within the next 48 hours;
- (d) complete courses on alcohol and drugs awareness and life skills with the Salvation Army as directed by his probation officer;
and
- (e) complete 50 hours of community service as directed by his probation officer.
- Failure, by either Defendant, to comply with the above conditions of their respective sentences may result in the relevant suspension
being rescinded, in which case, the defaulting Defendant will be required to serve the balance of his sentence.
- Pursuant to:
- (a) s 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs the subject of this proceeding are to be destroyed; and
- (b) s 33 of the said Act, the drug-related paraphernalia seized is to be forfeited to the Crown.
|
| |
NUKU’ALOFA | M. H. Whitten QC |
14 July 2021 | LORD CHIEF JUSTICE |
[1] Introduced by amendments which came into force on 8 December 2020.
[2] See also Wolfgram [2020] TOSC 78 at [39] to effect that supply is the progenitor to subsequent interactions such as use and addiction. In other words, (and apart from a
defendant’s own cultivation or manufacture) without supply, there could never be use or addiction.
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