R v CKC (a pseudonym) [2021] TOSC 32; CR 204 & 233 of 2020 (26 February 2021)

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

CR 204 & 233 of 2020

BETWEEN: R E X

- Prosecution

AND: CKC (a pseudonym)

- Accused

SENTENCE

BEFORE : JUSTICE LANGI

Counsel : Mrs. ‘Aholelei for the Crown Prosecution
The Accused in Person

Date of Sentence: 26 February, 2021

1. THE CHARGE
   

1. The Accused is charged in CR 204/2020 with one count of possession of illicit drugs contrary to section 4 (a) (iii) of the Illicit Drugs Control Act;
   
2. The Accused is charged in CR 233/2020 with one count of possession of illicit drugs contrary to section 4 (a) (iii) of the Illicit Drugs Control Act;
   
3. On 21 October 2020 the Accused was arraigned and pleaded not guilty on both matters. A trial date was set for the matters to be heard on 16 December 2020;
   
4. On 16 December 2020 the Accused informed the Court that he wished to change his plea. He was re-arraigned on both matters and he pleaded guilty as charged;
   
5. He now appears before me for sentencing.
   

2. THE OFFENDING
   

CR 204/2020

6. On or about 30 November 2019, the police were patrolling the Nuku’alofa district when they received a call from the central police station informing them of a vehicle that was parked at the Popua park conducting suspicious activity;
   
7. The police went to Popua and saw a rental car and another white vehicle. The police saw a woman walking from the white vehicle to the rental car. The police also noticed a male person inside the rental car quickly passing a box of cigarettes and a bundle of cash to the woman who was standing next to the driver’s seat. The police approached them and saw that it was the Accused sitting inside the rental car and the woman was his wife.
   
8. The police recognized the Accused as a he was known to them for previous drug offending. The Accused and the rental car were taken to the police station. A search of the vehicle resulted in police finding a packet of methamphetamine inside a Winfield packet of cigarette. Police also found a scale, six empty packs and one test tube. The packet of methamphetamine was later weighed and amounted to 0.07 grams of methamphetamine.
   

CR 233/2020

9. On or about 21 March 2020, the police received reliable information that the Accused was selling drugs from his vehicle at the Nuku’alofa area. The police located his vehicle in town and saw that the Accused’s wife was driving and the Accused was sitting in the front passenger seat.
   
10. The police followed the car and eventually stopped it on the road. When the police approached the Accused’s car, they saw the Accused breaking something on the dashboard. The searched the vehicle and found two broken test tubes with white residues suspected to be illicit drugs. The white residue was collected and taken to the police station. The police also found $1000 cash inside the glove compartment and $541 on his wife.
    
11. The white residue was tested and was positive for methamphetamine. It weighed a total of 0.04 grams.
    

100. CROWN’S SENTENCING SUBMISSIONS
     

12. The Crown submits the following as aggravating factors in this case:
    1. Drug offending is an issue in Tonga;
    2. The Accused is a repeat drug offender;
    100. Information received by police was that the Accused was selling drugs. They found a scale, empty sachets and a test tube in his vehicle.
         
13. The mitigating factors submitted by the Crown as follows:
    1. Guilty plea to both counts;
    2. Amount of methamphetamine seized is minimal;
       
14. The Crown also submit a few comparable sentences delivered in this court to assist me in determining the appropriate sentence (Rex v Ue’ikaetau Tapa’atoutai (Unreported, Supreme Court, CR 195 of 2020, Langi J; Rex v Harris Satini CR 227/2019; Rex v Vainiokolo Selu CR 202/2020). In all these cases, a starting point of 12 months was set for all Class A drugs below 1 gram. In Satini, a starting point of 18 months’ imprisonment was set for possession in that case of 1.0 grams of methamphetamine.
    

4. PRE-SENTENCE REPORT
   

15. The Accused is 37 years old and resides with his family at Kahoua, Tongatapu. He is married with five children. Four of his children currently attend school.
    
16. His marriage has been unstable for some time due to his drug addiction and at one time a protection order was issued against him by his mother in law.
    
17. However, the Accused reconciled with his wife and told the probation officer that she believes that the Accused has changed and has now been drug free since being released on bail. She said that she is now happy with the Accused because he no longer associates with his peers and stays at home to take care of his family.
    
18. In terms of education he was fairly educated and attended Liahona High School from 1994 – 2000. He later entered ‘Apifo’ou College in 2001 to participate in sports and rugby.
    
19. The Accused is currently unemployed but his family receives money from operating a small business owned by his sister in law.
    
20. The Accused told the probation officer that had already quit using illicit drugs. However, he said that he had relapsed because he was requested by Officer Malolo Vi to be an informer for the police and to continue selling drugs so that the police will apprehend the buyers.
    
21. The town officer of Kahoua informed the probation officer that a member in the community had complained about the Accused because of the different vehicles that would come to his house every night. This raised concern and the complainant was worried for the safety of the community as it was suspected that the Accused was dealing in illicit drugs.
    

5. DISCUSSION
   

22. The maximum penalty for possession of a Class A illicit drug is provided for in section 4(iii) of the Illicit Drugs Control Act which states that the maximum penalty is 30 years imprisonment or $1m fine or both;
    
23. The Crown submits a starting point of 18 months imprisonment based on the comparable cases discussed above. In previous sentences for possession of methamphetamine under 1 gram I have set the starting point at 12 months imprisonment even for very minimal amounts (R v Tafuna CR 198/20, R v Angilau CR 103/20, R v Suasau CR 120/20, R v Lave CR 185/20). This is to reflect the views of the courts towards this destructive and dangerous drug and to emphasize the views stated by the Court of Appeal in Maile and Cato J in Ngaue. This starting point will then be increased and decreased depending on the aggravating and mitigating factors.
    
24. I therefore set a starting point of 12 months imprisonment for CR 204/2020 which is the offence he committed on 20 November 2019. As highlighted by the Crown, the Accused has previous conviction for possession of illicit drugs. This is particularly concerning because the Accused committed his first drug offending in April 2019 where he was sentenced to 6 months imprisonment fully suspended. Then just seven months after he was sentenced he re-offended again leading to the charges in CR 204/20. Then only four months after being charged he again re-offended only four months after being charged which gives rise to CR 233/20. This demonstrates a blatant disregard for the laws of this country and also tells me that the rehabilitation courses undertaken had no effect on him at all. However, whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing the accused twice for the same offences on which he had previously been convicted and sentenced. I am mindful that any additions made to the sentence in this case does not punish the accused twice for offences which he has been convicted and sentenced, but his previous convictions do indicate a predilection to commit drug-related offences, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly. I therefore increase the starting point in this case by 6 months’ imprisonment making a total of 18 months’ imprisonment for CR 204/2020.
    
25. For the mitigating factors of an early guilty plea, cooperation with the police and showing some remorse for his actions, I deduct 6 months. This leaves a total of 12 months’ imprisonment.
    
26. 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 in relation to suspensions and I agree with the views of the Crown that in light of the mitigating factors in this case a suspension of the sentence is warranted in this case.
    
27. I accept that the Accused is remorseful and am prepared to give him an opportunity to again undertake the rehabilitation courses, hopefully this time he will take the courses seriously in order to avoid a life of crime.
    
28. I am particularly concerned with the information that the Accused provided to the probation officer regarding assistance given to the Police. Mr. Lutui for the Crown confirmed that that the Accused did provide some assistance to the Police but only in a few instances. This association ended when the Police realized that the Accused was also using them as an excuse to further offend.
    
29. In the case of Rex v Vainikolo [2013] TOSC 16; CR 26/2009 (14 August 2013), his Honour Justice Cato took into consideration the fact that the Accused in that case was introduced to the drug scene with the Defence Force as an undercover and which was causative of his later association and apparent drug addiction. It was confirmed in that case that the Accused had an extensive association with the defence force. His Honour stated in that case that ‘it is certainly not unheard of for those exposed to undercover activity to become corrupted by their exposure to it’.
    
30. I therefore give some weight to the assistance he provided to the police. However, as I had told the Accused, this does not excuse his behaviour and the fact that he has broken the laws of this country in choosing to relapse and deal with illicit drugs again.
    
31. In light of the above, I order that the last 9 months of his sentence is suspended for 1 year and the Accused is to serve 3month imprisonment for CR 204/20;
    
32. For the possession charge in CR 233/20 I convict the Accused and sentence him to 12 months’ imprisonment to be served concurrent to the sentence in CR 204/20;
    

6. SENTENCE

33. On the charge of possession of a Class A drug in CR 204/2020, the Accused is convicted and sentenced to 12 months’ imprisonment. The last 9 months is suspended for one year on the following conditions:
    1. Not to commit any further offences punishable by imprisonment for a period of 1 year upon his release;
    2. The Accused is to be placed on probation during the period of his suspension;
    100. He is to complete the drugs and alcohol courses as directed by the Probation Office upon his release. He is to attend the Probation Office within 48 hours of his release from prison;
         
34. On the charge of possession of a Class A drug in CR 233/2020, the Accused is convicted and sentenced to 12 months’ imprisonment to be served concurrent with the sentence in CR 204/2020;
    
35. The Accused will therefore serve a total of 3 months’ imprisonment.
    
36. As requested by the Crown, I order that the drugs seized are destroyed and all items associated with drugs such as the weighing apparatus and plastic packs and cash are forfeited to the Crown.
    
37. I further recommend to the Police because of the nature of the Accused’s association with the Police as an undercover person in previous cases and the short period of imprisonment, that he serve his period imprisonment at the Nuku’alofa Police station.
    
38. Finally, and to accord with the anonymity requirements of s.30 of the Act, and the public policy or interest in protection of police informants, I order that the identity of the defendant and his evidence in this proceeding shall not be published in the Kingdom in any written publication available to the public or be broadcast in the Kingdom. At Mr Lutui's suggestion, I will also direct that publication by the Court of these remarks be deferred
    

‘E. M. L Langi
NUKU’ALOFA: 26 February 2021 J U D G E