R v Fatongiatau [2021] TOSC 20; CR 237 of 2020 (22 February 2021)

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

CR 237 of 2020

REX

-v-

TALIA’ULI FATONGIATAU

SENTENCE

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr. T. ‘Aho for the prosecution
The Accused in person
Date: 22 February 2021

1. The accused is charged with one count of offering a bribe to a member of the Tonga police, in the sum of $235, contrary to section 165 (1) of the Tonga Police Act; and one count of possession of 0.89 g methamphetamine contrary to section 4(a)(iii) of the Illicit Drugs Control Act.
2. At the commencement of his trial this day, the accused was re-arraigned and pleaded guilty to both counts.
3. As the defendant is currently serving one term of imprisonment with another to commence next month, I determined to proceed immediately to impose sentence in this matter.
4. Mr ‘Aho informed the Court as to the defendant's previous convictions. In 2013, he was convicted of trespass. In 2014, he was convicted of common assault for which he received a $50 fine. On 28 August 2020, in proceedings CR 138 of 2019, Cato J sentenced the defendant for possession of 0.34g of methamphetamine and 159g of cannabis to two years and six months imprisonment backdated to the date of his remand in custody with the final 12 months of that sentence being suspended on conditions. The term of that sentence to be served is expected to expire next month. In proceedings CR 216 of 2020, on 8 December 2020, Langi AJ sentenced the defendant for possession of methamphetamine and interfering with evidence to a head sentence of one year and nine months imprisonment, to be served consecutive to the current sentence he is serving for CR 138/19. The sentence to be served in CR 216/20 will, subject to any early release ordered by the Commissioner for Prisons, result in the defendant being imprisoned until about December 2022. The offending the subject of CR 216/20 was committed on 2 February 2020. The offending the subject of the instant proceeding occurred on 11 April 2020, that is, while the defendant was on bail in relation to CR 216/20.
5. Mr ‘Aho submitted that the starting point for the bribery charge should be in the order of two years. However, the previous decisions to which he referred involved far greater sums of money. Further, such a starting point would be disproportionate to the starting point for the methamphetamine charge which carries a maximum penalty of 30 years compared to the bribery charge which carries a maximum of seven years.
6. The defendant told the court that he is currently 35 years of age, married with four children ranging from four years to 14 years of age. Prior to his imprisonment, the defendant worked as a security guard for about five years. He ceased that work in 2018 because of marital problems with his wife not being happy about his work. He has not been employed since. Whilst working as a security guard at a nightclub, he commenced his involvement with illicit drugs. He candidly admitted that he started selling drugs to make money.
7. He was born in Vava'u. In the year 2000, his family moved to Tongatapu for a more urban life. His mother died when he was in Form 6. He married in 2006. He encountered problems with his marriage as described above. He expressed remorse for his actions which have led him now to two substantial periods of imprisonment. His wife and children visit him at the prison each Sunday. His brothers are providing financially for them. His wife is about to travel to Australia for work six months. He has no health issues. The defendant apologised to the court for his past misdeeds. He said that he has spent time with good people whilst in prison and has received good advice. He is a member of a prayer group there. He promised that once he gets out, he will “try to be a better person”.
8. Having regard to the nature and seriousness of the offence, I set a starting point for each count at 12 months’ imprisonment to be served concurrently.
9. By way of mitigation, for the defendant’s belated guilty plea and expressed remorse, I reduce the starting points by 3 months. Therefore, the defendant is sentenced to 9 months’ imprisonment on each count to be served concurrently.
10. The circumstances of the case, the Defendant’s repeated drug-related convictions and the fact that the instant offending was committed whilst he was on bail for the last proceeding weigh against suspending any part of the sentence.
11. In light of the extant sentences in the other proceedings being served and to be served, and having regard to the totality principle, I order that the final six months of the sentence in this proceeding be served consecutively, that is, following the end of, the sentence to be served for CR 216/20. The net result is that, again, subject to any discount for early release by the Commissioner of Prisons, the Defendant will be imprisoned until June 2023.
12. I direct that, to the greatest extent possible, the Defendant is to receive drug awareness and life skills counselling as provided by the Salvation Army or similar during his incarceration in prison. To that end, a copy of this order is to be provided to the Probation Office and the Salvation Army headquarters in Nuku'alofa.
13. Finally, I order that:
    • (a) the drugs the subject of this proceeding be destroyed; and
    • (b) the cash seized from the defendant at the time of his arrest be forfeited to the Crown.

NUKU’ALOFA	M. H. Whitten QC
22 February 2021	LORD CHIEF JUSTICE