R v Toluta'u [2021] TOSC 154; CR 100 of 2020 (15 September 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 100 of 2020

REX

-v-

KALAFITONI TOLUTA’U

BEFORE HON. JUSTICE NIU

Counsel : Mr. F. Samani for the Crown.

Mrs. A. Tavo Mailangi for the accused.

Plea : Not guilty but convicted on 21 July 2021.

Report : by Probation Officer, Kelela Tu’itupou on 18 August 2021.

Submissions : by Mr. Samani on 26 August 2021.

by Mrs. Tavo Mailangi on 2 September 2021.

Sentencing : 15 September 2021.

SENTENCING

Offence

[1] Kalafitoni Toluta’u, you possessed 2.8 grams of methamphetamine (meth) at ‘Utulau on 28 July 2018 knowingly and without lawful justification contrary to S.4 (a) (iii) of the Illicit Drugs Control Act.

[2] You denied that you possessed it and you pleaded not guilty, but I found, on the evidence given at your trial, that you did possess it, knowingly and without lawful justification, beyond any reasonable doubt, and I convicted you of that offence.

[3] You now appear for sentence for that offence.

Report

[4] The probation officer says that you are 42 years of age. You and your 6 siblings migrated to Hawaii with your parents whilst you children were still young and you attended school there. She does not say how you did at school or what if any work you did after you left school but she says that you got married to a Tongan girl there in 2003 and you had 3 children. But in 2009, you were deported back to Tonga because of some traffic offence which you told her you committed there.

[5] I have to say straight away that I do not understand why you would be deported for such an offence. If the offence was so serious, it would have warranted an imprisonment sentence, which sentence would have been served at a prison to which your wife and children would have ease of access to visit you there. It would not have warranted deportation. But if your offence had involved illicit drugs, then I can well understand why you were deported. No country wants drug offenders.

[6] The officer says that when you returned, you lived with your uncle at ‘Utulau and that you helped him with his crops at his tax allotment. She says that you told her that you were a self-employed farmer and that you made an income from farming of about $24,000 per year. I find that hard to believe because if you were making that much money from farming you would have had no need to sell and seek income from drugs instead or be involved in unlawful activities such as armed robbery for which offence you were convicted in 2018. You were sentenced on 21 September 2018 for that offence to 4 years imprisonment, but with the last year being suspended.

[7] Your present offence was committed on 28 July 2018, and you said in your evidence in the trial of your present offence that you defaulted to attend the Court for the robbery offence and that a warrant was issued to arrest you for that default.

[8] You have therefore finished serving 3 years of your 4 years sentence for the robbery and that you are now on suspension of the fourth year. This present offence does not affect that suspension because it was committed prior to your sentence for the robbery offence.

[9] The officer says that you and your wife are now divorced and that your wife has remarried, and that your children are grown up, their ages being, 18, 16 and 14 and are in the U.S (Hawaii).

[10] You therefore have no family here in Toga, other than your uncle at ‘Utulau and you appear to have no job or livelihood or property or allotment or house or place to call your home.

[11] It is also clear that you had no home and no job after you came out of prison and you went and lived at Navutoka but you became suspected of involvement with drugs and you were asked to leave and you did.

[12] The officer says that, “nevertheless, there is a positive sign from you in that you conducted plantation for exportation, as means of income, instead of drug dealing. Importantly, the accused critically needs to be rehabilitated because there’s prospect of an effective rehabilitation”. She therefore recommends that your sentence be partially suspended on conditions that you refrain from alcohol and drugs and to complete the rehabilitation programs in life skills and drug awareness as may be directed.

Crown submissions

[13] Crown counsel does not agree with that recommendation. He says that there is no mitigating factor in your favour and that you do not qualify under the guidelines laid down in the Mo’unga Case for full or partial suspension.

[14] He says that your sentence is governed by the large amount of meth which you possessed and for which you have been convicted, namely, 2.8 grams, and with sentences imposed in 3 cases he refers to, namely:

(a) R v Uasike (CR161/2019) where Uasike pleaded guilty to possessing 3.48 grams of meth and 0.87 gram of cannabis, and to bribery of a policeman. He had a starting point of 3 years which was reduced by 6 months for his guilty plea. He was given no sentence for the cannabis offence but he was given a 14 months sentence for the bribery offence, 11 months of which were to be concurrent with his remaining sentence of 2 years 6 months, so that he served a total of 2 years 9 months imprisonment only.

(b) R v Satini (CR277/2019) where Satini was found guilty after trial of possessing 1.32 grams of meth and he had previous drug offences. The starting point was 2 years and it was increased to 2 years 6 months because of his previous drug offences, and 3 months were deducted for mitigation leaving a sentence of 2 years 3 months. Because the Court considered that the accused was only an user not a supplier, and that there was prospect of rehabilitation, the sentence was fully suspended to allow for access to treatment.

(c) R v Puloka (Cr256/2020) where Puloka was sentenced for 2 separate offences after 2 separate trials, for possessing 0.2 gram of meth and 1.48 gram of cannabis in one and for possessing of 2 lots of meth, namely, 4.34 grams and 2.17 grams. For the 4.34 grams of meth he was sentenced to 3 years, for the 2.17 grams he was sentenced to 1 year 6 months, both sentences to be concurrent, and without suspension.

[15] Mr. Samani asks for an order that the drugs be destroyed and for forfeiture of the paraphernalia found.

Accused submissions

[16] Mrs. Tavo-Mailangi, your counsel, has made submissions on your behalf. She says that consideration be given to your trouble free life from the time you were returned to Tonga in 2009 until you committed these 2 serious offences in 2018, the sentence of one of which you have duly served and the other now to be sentenced. She agrees with the probation officer that there is therefore prospect for rehabilitation and that suspension is warranted for that purpose. She says that you qualify under the guidelines in the Mo’unga Case for suspension of your sentence or at least part of it.

Consideration

[17] As you can see, this Court has consistently sentenced drug offenders to imprisonment because the law concerning drugs, namely, the Illicit Drug Control Act, has provided a severe sentence for class A drug offenders of imprisonment of up to 30 years or a fine of up to a million pa’anga or both. The illicit drug that you possessed was methamphetamine which is a class A drug. And the sentences which this Court has imposed in respect of drug offences have been based upon the quantity of the drug possessed, namely the weight of the drug found. That is because the quantity indicates the purpose for which the drug was possessed by the offender. If it is a minimal amount, it indicates that it was for the personal use only of the offender. If it is a large quantity, that is, a quantity that may be able to be used by a large number of people, then it indicates that it was for the purpose of supply and sale and which is a much more serious offence. A large quantity indicates that the offender is in possession for his own financial gain at the loss, and misery, of the persons who buy the drug from him for their personal use.

[18] In your case, you had 2.8 grams of methamphetamine which is a large quantity of a class A drug. Such a quantity could be used by tens of persons and it indicates that you possessed it for the purpose of supply and sale to a large number of persons. You stood to gain financially at the loss, and misery, of those persons. You intended to continue to keep those persons addicted to the drug so they would continue to buy the drug from you so that you continue to maintain your unfair and unlawful advantage over them. You wanted to continue and make them your slaves.

[19] Your counsel says that you were released from prison, after having served your sentence for the robbery, since September 2020. That is 1 year ago. Yet, she does not tell me what you have done to show that you have changed, that you have made an honest living for yourself, that you no longer associate with persons involved with drugs, that you have rehabilitated yourself.

[20] The probation officer says that you told her that you conduct a plantation with your uncle, Keneti Toluta’u, at Navutoka, but that she could not confirm whether it was true. She says that she spoke with a reliable resident of Navutoka about you and that that person told her that you were associating with persons who were involved with drugs and so you were advised to leave the village, and that you have not been back there since. If that is correct, and I do not doubt that the reliable resident told the probation officer that, then it is not the case that you “conduct a plantation with your uncle at Navutoka” at all.

[21] That means I have no evidence, you have given me no evidence that you have made or begun to make a change in your life. You have shown no likelihood of rehabilitation at all.

[22] I have pointed this out to you because this Court has held in other cases that an imprisonment sentence may be suspended, or partly suspended, if the offender is likely to make use of the suspension to rehabilitate himself, that is to change his life into a law-abiding life so that he would not re-offend. This was so in the case of R v Fifita (CR302/2020).

[23] This Court had thought that you were likely to take the opportunity offered by a partial suspension of your sentence for the armed robbery offence which you had committed to rehabilitate your life, and it suspended the final year of your 4 year imprisonment sentence to enable you to do that.

[24] Now 12 months after you have had that suspension, you have not shown any evidence of changing your life at all. You do not appear to have a home and you do have a job and it is not known how you make a living, an honest living, for yourself.

[25] There are 3 other considerations, beside the likelihood of rehabilitation, which may allow a suspension of part of your sentence, but none of them can be applied in your case either, as laid down in the Mo’unga Case [1998] Tonga LR 154. The first is that if you were young and had a previous good record, but you are not young and you have a previous record for armed robbery. The second is that there was diminution of culpability through lack of premeditation, presence of provocation or coercion by a co-offender, but none of those was present in your case. The third and last is where there has been cooperation with the authorities, but you gave no such cooperation to the police. You never admitted to the police that you committed this offence. You never told them where or from whom the drug you had had come from.

[26] I therefore agree with Crown counsel, Mr. Samani, that you are not entitled to any suspension of your sentence.

[27] As to the period of imprisonment for your offence, I also agree with him that your sentence be 2 years 6 months imprisonment. That sentence is in accordance with the cases to which he has referred. Mrs. Tavo-Mailangi does not dispute that sentence but asks for suspension, to which I find you are not entitled.

Sentence

[28] I therefore sentence you for the offence of possessing 2.8 grams of methamphetamine at ‘Utulau on 28 July 2018, knowingly and without lawful excuse, in breach of S.4 (a) (iii) of the Illicit Drugs Control, to 2 years 6 months imprisonment.

[29] I order that the drugs and paraphernalia found in respect of this offence be destroyed by the police. Other properties found together with the drugs are forfeited to the Crown.

Niu J

Nuku’alofa: 15 September 2021. J U D G E