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R v Funaki [2021] TOSC 122; CR 272 of 2020 (29 July 2021)
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 272 of 2020
REX
-v-
Tipiloma FUNAKI
SENTENCING REMARKS
BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. T. ‘Aho for the Prosecution
Defendant in person
Date of sentence: 29th July 2021
- On 15th February 2020 at approximately 0400 hrs police, acting on information, followed the defendant’s car to a residential
address.
- The defendant was arrested inside and recovered from throughout the address were a total of 43 individually sealed packets of cannabis,
a test tube and $450 and a single packet of methamphetamine.
- The methamphetamine weighed 0.25 g and the cannabis 108.33 g.
- The defendant appeared before me 1st July 2021 on a warrant on having failed to attend his trial listing on 28th June 2021, where upon he pleaded guilty to the counts on the indictment.
- I have taken into account all matters of mitigation before me and the pre-sentence report.
- At this point I should note that he was sentenced on 27th July 2021 in the Magistrates’ Court as follows :
Count 1 - Possession of a Class A Drug - 8 months’ imprisonment;
Count 2 - Possession of a Class B Drug - 3 months’ imprisonment;
Count 3 - Possession of Utensils - 1 month imprisonment.
- All sentences concurrent, and the final 2 months suspended for 9 months on conditions.
- The totally principle demands I must therefore take into account the sentences passed in the Magistrates’ Court very recently
when I sentence Mr. Funaki today.
- Given the weight of Methamphetamine involved in the present case, mindful that this case pre-dates the amendment to the Illicit Drugs
Act, I bear in mind R v Metui Funaki 297/2020; Chief Justice Whitten of Queen’s Counsel; a 9 month sentence of imprisonment fully suspended upon a guilty plea;
R v Taufa Latuselu, 0.70 g methamphetamine and a trifling quantity of cannabis; Chief Justice Whitten QC, again upon a guilty plea 9 months’ imprisonment
fully suspended.
- From the evidence there is nothing to show that methamphetamine was possessed with the purpose of supply in this case.
- I therefore sentence him to 8 month’s imprisonment concurrent to the term imposed in the Magistrates’ Court on that count.
- Turning next to the possession of the Cannabis possession.
- Given the presence of the cash, the quantity of dealer bags, I infer that this was possession with the purpose of supply.
- In R v Likamani Fa’aoso 240/2020 Chief Justice Whitten considered a sentence of 24 months, for possession with the purpose of small commercial supply when
the amount was 165.37 g Cannabis.
- This is in line with and follows from the case of Terewi [1993] 3 NZ 62 which set a band of up to 4 years for small commercial cultivation, as adopted in the case of R v Vea [2004] TOCA 7.
- R v Likamani Fa’aoso 240/2020 is the most recent comparable sentence in terms of date of offence and weight.
- To my mind what should follow is a starting point of 14 months in this case to reflect the fact that it was 108.33 g and that I infer
it was possession for the purpose of supply.
- For a guilty plea at the day of trial the only discount that can be available is 10%; effectively 1 ½ months.
- That would give a starting point of 12 ½ months’ imprisonment. This Court would have imposed an overall sentence of 12
½ months concurrent on all counts. Given the sentence already imposed, I sentence Mr. Funaki to 4 ½ months’ imprisonment
on the possession of the Cannabis to be served consecutively to the sentence of the Magistrate on 27th July 2021.
- Overall, as between these two cases, he is to serve 12 ½ months’ the last 2 months suspended for 9 months on the conditions
imposed in the Magistrates’ Court.
- The money is to be forfeited and drugs and any mobile phones seized and any such other paraphernalia to be destroyed.
NUKU’ALOFA N. J. Cooper
29 July 2021 J U D G E
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URL: http://www.paclii.org/to/cases/TOSC/2021/122.html