R v Tupou [2021] TOSC 2; CR 212 of 2020 (15 January 2021)

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

CR 212 of 2020

BETWEEN: R E X
-Prosecution

AND: SIMILATI TUPOU
-Accused

SENTENCE

BEFORE : JUSTICE LANGI

Counsel : Mr. Samani for the Crown Prosecution
The Accused In Person

Date of Sentence: 15 January, 2021

1. THE CHARGE AND PRELIMINARY MATTERS
   

1. On 15 January 2021 I delivered an oral sentence in this case and informed the parties that a written sentence will be available at a later time. I now provide the written sentence and reasons for the outcome.
   
2. The Accused was charged with one count of possession of illicit drugs (methamphetamine) contrary to section 4 (a) of the Illicit Drugs Control Act and one count of possession of ammunitions contrary to section 4(1) (2) (b) of the Arms and Ammunitions Act.
   
3. After a contested trial the Accused was found guilty of both charges.
   
4. He appears before this Court today for sentencing.
   

2. THE OFFENDING
   

5. On or about 28 February 2020, the Police received reliable information that the Accused was selling drugs from his home at Pahu. The police carried out a search without a warrant at the Accused’s residence where they found test tubes used for smoking methamphetamine. One of those test tubes still had illicit drugs inside. The Police tested the substance using the Trunarc Analyzer and it gave out a positive reading for methamphetamine.
   
6. The Police also found a bottle containing 94 blank .22 ammunitions in an area said to be used by the Accused as a bedroom.
   
7. The Accused was accordingly charged with possession of illicit drugs and possession of ammunitions without a license.
   

100. CROWN’S SENTENCING SUBMISSIONS
     

8. The Crown submits the only aggravating factors in this case is the fact that possession of Class A drug is a serious offence and that drug offences are a problem here in Tonga. In my view, another aggravating factor is that the accused was convicted after pleading not guilty, thereby showing no remorse for his unlawful actions.
   
9. The Crown also submit the only mitigating factors in support of a reduction of sentence is that the Accused is a first-time drug offender.
   
10. The Crown also submits a number of comparable cases to assist me in determining the appropriate sentence:
    1. R v Viliami Mangisi CR 10/2018 – this case sets out sentencing bands as guidelines for determining the appropriate sentence for a drug offender. Cato J adopted the guidelines in Zhang v R [2019] NZCA 507 which had revised the earlier bands in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) as follows:
       1. Band 1 for less than 5 grams – Community – 4 years imprisonment
       2. Band 2 for less than 250 grams – 2 to 9 years imprisonment
       3. Band 3 for less than 500 grams – 6 to 12 years imprisonment
       4. Band 4 for less 2 kilograms – 8 to 16 years imprisonment
       5. Band 5 for more than 2 kilograms – 10 years to life
          
    2. R v Vilimoa Afu CR 177/2020 – the accused pleaded guilty to possession of 0.11 grams of methamphetamine. He was a first-time offender and had cooperated with the police. The Crown had recommended a non-custodial sentence but this was not accepted by LCJ Whitten who was of the view that the imposition of a good behaviour bond under section 198 of the Criminal Offences Act is where the offence is of a trivial nature and possession of methamphetamine will rarely ever be regarded as a trivial offence. His Honour emphasized the views of the Court of Appeal in Maile where it was stated that in prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed, therefore those involved with methamphetamine in any capacity, and even small amounts, can expect to receive a custodial sentence.
       
    100. R v Master Tome Suasau CR 120 of 2020, Unreported – the accused pleaded guilty to possession of 0.48 grams, contrary to section 4 (a) of the Illicit Drugs Control Act. He was a first-time offender, remorseful and had co-operated with the Police. This court began with a starting point of 12 months imprisonment. Four months was deducted for the mitigating factors. The accused was sentenced to 8 months imprisonment fully suspended for 2 years on conditions not commit further offence during period of suspension, undertake drug and alcohol course with the Salvation Army and complete 70 hours of community work as directed by the probation office.
         
    4. R v Lelei Vaiangina CR 231 of 2020, Unreported – The Accused was convicted after a contested trial of possession of 0.04 grams of methamphetamine. He was a first-time offender. He was sentenced to 9 months imprisonment, fully suspended on conditions.
       

4. PRE-SENTENCE REPORT
   

11. The Accused is the youngest of three children. He grew up with his parents at Ha’apai and they later moved to live in Vava’u in 1992. That is where he met his first wife, Pele Tupou, and they married in 1998. That same year, his parents and two siblings migrated to the United States. The Accused was unable to go with them because of his marital status.
    
12. The Accused has 6 children with his wife. He had an affair with his wife’s younger sister which resulted in his wife leaving him. He later married his sister in law and had 5 more children with her. He now lives with his wife and their five children plus four of his sons from his first marriage.
    
13. The Accused is employed as a mechanic where he earns approximately $200 a fortnight. His wife is also employed but the pre-sentence report does not state what type of employment she is involve in.
    
14. The Accused and his family are members of the Mormon church. The Bishop of their church informed the probation officer that he is working with the Accused to assist him in changing his life around for a better future.
    
15. The Accused’s wife informed the probation officer that she has frequently been a victim of domestic violence at the hands of the Accused. She told the officer that the Accused would often beat her when he is under the influence of alcohol and drugs.
    
16. In terms of education, the Accused only went as far as Form 5 before he enrolled in a two-year program with the ‘Unuaki ‘o Tonga Institute where he graduated with a Certificate. Again, the report does not state what field the Accused pursued to receive this Certificate.
    
17. The Accused informed the probation officer that he still maintains his innocence even after being convicted for the offences he was charged with.
    
18. The Accused told the probation officer that he has a previous conviction for theft where he was sentenced to imprisonment for 2 years at the Magistrate Court. However, after checking the records, the probation officer found that the Accused has a total of 6 criminal convictions for various theft and assault charges.
    
19. In his assessment of the Accused, the probation officer is of the view that the Accused shows no remorse for his illegal behaviour. The Accused clearly has problems caused by alcohol and drugs and a term of imprisonment is required. The probation officer is of the view that a partly suspended sentence is appropriate.
    

5. DISCUSSION
   

20. The maximum penalty for possession of a Class A drug is 30 years imprisonment or 1000000 dollars fine or both;
    
21. The maximum penalty for possession of ammunition without a license is 5 years imprisonment;
    
22. I take the fact that the accused is not remorseful and maintains his innocence even after being convicted as a serious aggravating factor. In my view, his nonchalant attitude to his offending is indicative of someone who has no respect for the laws of this country.
    
23. It is no secret that there is currently a war against illicit drugs in our small island Kingdom. This is evidenced in the alarming increase of drug-related offences coming through our courts. Of concern is the fact that the supply and use of methamphetamine is now becoming the norm and people are using it without understanding the destructive nature of the drug.
    
24. In R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 the court stated the following in relation to methamphetamine:

“Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour; and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved.”

25. Similarly, in R v Ngaue [2018] TOSC 38; Criminal Case 6 of 2018 (2 August 2018), Cato J stated that:

“methamphetamine is a scourge and has affected a great deal of harm and misery on society in countries such as Australia and New Zealand where it has become prevalent in the last couple of decades. It is highly addictive for users, is mind altering and is often accompanied by acts of serous violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for the user to fund the acquisition of the drug. Significant markets are to be found for those who chose to manufacture or import the drug and large profits can be made by criminals who choose to engage in such activity. The courts have responded by imposing very significant penalties on those who engage in this kind of activity”

26. The comments by Cato J in Ngaue were endorsed by the Court of Appeal in Maile (above) when it stated that:

“Although Mr. Maile was found in possession of only a small quantity of methamphetamine his offending was serious as this is a Class A drug. In prescribing a maximum penalty of 30 years imprisonment for possession of methamphetamine the Legislature has expressed a clear intention that significant penalties are to be imposed. The distribution and use of methamphetamine in Tonga is a significant Government and community concern...”

27. The Crown submits a starting point of 12 months imprisonment for Count 1. I agree that this is an appropriate starting point. The amount of 0.01 grams of methamphetamine is at the lowest end off the spectrum but in order to reflect the seriousness of possession of a Class A drug and to deter others from such offending, a term of imprisonment will be inevitable. For any amounts of a Class A drug below 1 gram, I have set the starting point in previous sentences to 12 months imprisonment.
    
28. I note that in the case of Afu above the Accused had been sentenced by LCJ Whitten to 6 months imprisonment for possession of the same amount of methamphetamine (0.01g). His sentence was fully suspended on condition that he complete the Salvation Army Drugs and Alcohol course. However, the Accused in Afu had pleaded guilty at the first available opportunity, showed remorse and was a first-time offender. In contrast, the Accused in this case was convicted after a defended hearing and showed little remorse for his actions.
    
29. For his lack of previous convictions for drug offending I deduct 3 months from the starting point. I would have been minded to deduct 6 months if he had shown any remorse for his actions. However, this is not the case and the total sentence for Count 1 is 9 months imprisonment.
    
30. For possession of 94 blank bullets without a license I convict and sentence the Accused to 9 months imprisonment. This sentence is concurrent to Count 1.
    
31. Turning to the question of whether I should suspend any part of the sentence, I have considered the principles in Mo’unga v R [1998] Tonga LR 154 and note that a suspended sentence may be appropriate where an offender is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities and where the accused has pleaded guilty at the earliest opportunity. Although the accused did not plead guilty and did not co-operate with the police, I believe that he should be given an opportunity to receive help for his addiction. I hope for his benefit that he takes the opportunity granted to him to make use of the tools that will be given to him through drug and alcohol courses to change his life around. I therefore suspend the whole of his sentence for 12 months on conditions.
    

6. SENTENCE

32. On the count of possession of a Class A drugs the Accused is convicted and sentenced to 9 months imprisonment;
    
33. On the count of possession of ammunitions without a license the Accused is convicted and sentenced to 9 months imprisonment. This sentence is served concurrent to Count 1;
    
34. The sentence is fully suspended on the following conditions:
    1. Not to commit any further offences punishable by imprisonment for a period of 1 years;
    2. The Accused is to be placed on probation during the period of his suspension;
    100. The Accused is to complete the Salvation Army Drugs and Alcohol Awareness Program and Life Skills Course within the first year of his suspension;
    4. The Accused is to undertake 40 hours of community work as directed by the probation officer. He is to report to the probation office on Monday 18 January 2021.
35. It is also ordered that the methamphetamine seized from the accused in this matter be destroyed and the ammunition be forfeited to the Crown.
    

‘E. M. L Langi
NUKU’ALOFA: 15 January 2021 J U D G E