R v Maile [2021] TOSC 69; CR 132 of 2021 (13 May 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 132 of 2021

REX

-v-

KELIKUPA MAILE

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr J. Fifita for the Prosecution

Ms A. Kafoa (for Mr S. Tu’utafaiva) for the Defendant

Date: 13 May 2021

The charge

1. The Defendant appears today for sentencing following guilty pleas at the commencement of his trial for:
   • (a) count 1: possession of 11 packets of methamphetamines totaling 0.5 grams;
   • (b) count 2: possession of three packets of methamphetamines totaling 2.5 grams; and
   • (c) count 3: possession of 47.89 grams of cannabis, 1.46 grams of cannabis seeds and 1.97 grams of cannabis plant (a total of 51.32 grams).

The offending

2. On or about 3 May 2019, Police received information that four occupants of a vehicle parked at Longolongo were smoking illicit drugs. When the Police arrived, the Defendant, who was the driver, attempted to drive off but was stopped by the Police. The police saw a bag of cannabis and a black bag on the Defendant’s lap. A search of the vehicle revealed methamphetamines, packets of cannabis, cannabis seeds, cannabis plant, cannabis residue, test tubes, a weighing scale, cash, utensils for smoking and a gas tank used to make utensils for smoking methamphetamine. When Police subsequently searched the Defendant’s home, they found 14 test tubes, a portable gas cooker and five conical flasks.
3. The Defendant was arrested and did not co-operate with the police.

Crown’s submissions

4. The Crown submits the following as aggravating features:
   • (a) the substantial amount of methamphetamines;
   • (b) a moderate amount of cannabis;
   • (c) indications the Defendant is a drug supplier due to the packaging of the drugs;
   • (d) test tubes and cash found;
   • (e) the test tubes and flasks found at his residence; and
   • (f) illicit drugs continue to be a “huge issue in Tonga”.
5. The Crown submits that the only mitigating factor is the Defendant’s guilty pleas.
6. The Defendant has previous convictions for serious housebreaking and theft (CR 133/19) for which he was sentenced, on the head count, to 3 years and 3 months imprisonment with the final 12 months suspended on conditions.
7. The Crown referred to the following comparable sentences:
   • (a) Paletu’a (CR 27/2021) – the Defendant pleaded guilty to possession of 3.16 grams of methamphetamines and other drugs as well as test tubes, empty dealer bags and weighing scales. A starting point of 3 years and 3 months was set, reduced by 13 months for mitigation with the final 12 months of the resulting 26 month sentence suspended on conditions.
   • (b) Ali (CR 196/2020) – the Defendant pleaded guilty to possession of 0.86, 1.07 and 0.4 grams of methamphetamine. He was sentenced to 18 months’ imprisonment with the final 9 months suspended on conditions.
8. Here, the Crown submits the following as an appropriate sentence formulation:
   • (a) the head sentence is count 2;
   • (b) a starting point of 3 years’ imprisonment;
   • (c) reduced by no more than 9 months for mitigation;
   • (d) partial suspension; and
   • (e) these sentences be served cumulatively to the sentence the Defendant is currently serving in CR 133/19.

Defence submissions

9. Mr Tu’utafaiva did not dispute the Crown's submitted starting point of 3 years’ imprisonment with 9 months off for mitigation. However, he submitted that:
   • (a) since the Defendant has served 1 year and 8 months of his sentence in CR 133/19, the sentence in this proceeding should be served from the date of sentencing, resulting in an overall sentence of 4 years’ imprisonment for both proceedings; and
   • (b) to the conditions of the suspended sentence in CR 133/19 should be added a condition that the Defendant attend a drugs and alcohol awareness program.

Presentence report

10. The probation office filed a supplementary presentence report with the report filed in CR 133/19.
11. The Defendant is 34 years of age. He is the eldest of five children. He is married with four children. He grew up in a good family. Both his parents were unemployed and so the family was financially supported by overseas remittances. He was educated to Form 5 and enrolled into Fokololo Technical Institution in 2006.
12. As noted above, the Crown's submissions only referred to serious housebreaking and theft as being the Defendant’s only previous convictions. However, somewhat confusingly, the probation report for CR 133/19 states "The accused has Previous Convictions Record on drug-related matters". No further information has been provided in that regard.
13. The probation officer notes that the Defendant regrets what he did and is remorseful. The officer recommends that any sentence imposed by the Court include an alcohol and drug awareness course.

Starting point – count 2

14. The maximum statutory penalty for possession of methamphetamines is a fine of $1 million or 30 years’ imprisonment or both. The maximum penalty for possession of cannabis, weighing 28 grams or more, is a fine not exceeding $50,000 or 7 years’ imprisonment or both.
15. The Court’s repeated stance on illicit drugs, particularly methamphetamines, may be summarized as follows: ^[1]
    • (a) methamphetamine is a scourge to societies everywhere that has effected a great deal of harm and misery;
    • (b) the distribution and use of methamphetamine in Tonga is a significant government and community concern;
    • (c) in prescribing a maximum penalty of 30 years’ imprisonment, the Legislature has expressed a clear intention that significant penalties are to be imposed;
    • (d) therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.
16. The Court’s responsibility in addressing drug-related offending involving methamphetamine is ‘to ensure that sentences imposed ... are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders, but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.’ ^[2]
17. Band 1 of the Zhang guidelines^[3] provides a range of sentences for up to 5 grams of methamphetamine from community service to 4 years imprisonment.
18. In relation to the head count, count 2, having regard to the seriousness of the offence, the amount of methamphetamines involved, the other aggravating features which all indicate a case of possession for supply, and the comparable sentences and principles referred to above, I set a primary starting point of three years imprisonment.
19. Whilst not detailed in the Crown’s submissions, a review of the court file in CR 133/19 reveals that the offending there was committed in late December 2018, the Defendant was charged on or about 11 January 2019, convicted on 5 September 2019 and sentenced on 4 October 2019. The sentence was backdated to the date of his remand in custody. That date is not specified. According to the Crown's submissions [23], the Defendant "was imprisoned on 5 September 2019”. Therefore, using that date, and subject to any remissions available within the Prison system, the Defendant would be eligible for release on or about 4 December 2021, whereupon the 12 month suspension period for that sentence would commence.
20. That chronology also means that the Defendant committed the instant offending (on 3 May 2019) whilst on bail for CR 133/19. I consider that to be a serious circumstance of aggravation, and for which, I add another six months making a total starting point of 3 ½ years or 42 months’ imprisonment.

Mitigation

21. The Crown is responsible for presenting before the Court an accurate record of a Defendant's previous convictions. The discrepancy between the Crown submissions in that regard and the statement by the probation officer in CR 133/19 has not been explained. I therefore proceed on the basis that this is the Defendant's first detected drug-related offending.
22. For that, and his late guilty plea, I reduce the starting point on count 2 by 12 months, resulting in a sentence of 30 months’ imprisonment.

Sentences for counts 1 and 3

23. By a similar process to that applied in determining the sentence for count 2, I impose a sentence of 9 months’ imprisonment for count 1^[4] and 18 months’ imprisonment for count 3.^[5] Both those sentences are to be served concurrently with the sentence imposed on count 2.
24. Having regard to the totality principle, I agree with Mr Tu'utafaiva that the instant sentences should commence from this day. Therefore, subject to any period of suspension as discussed below, and any remissions, the result is that the head sentence of 30 months will expire in or about November 2023, that is, a total of 4 years and 2 months for both proceedings.

Suspension

25. The considerations in Mo’unga [1998] Tonga LR 154 and 157, do not readily favour suspension in this case. The Defendant is not particularly young. He did not co-operate with the authorities and he only pleaded guilty at the commencement of his trial. He is not a first time offender, although as stated above, I am proceeding on the basis that this is his first detected drug-related offending. As such, it would appear that he has not yet had the opportunity afforded by supervision and education through probation and a drug rehabilitation program.
26. In recognition of his expressed remorse, and the fact that he has now spent the last approximately 20 months in prison during which time he will have had the opportunity to reflect on his previous criminal behaviour, I am also prepared to offer the Defendant an opportunity for rehabilitation through a partially suspended sentence.
27. Weighing all relevant considerations, including the importance of sentences involving illicit drugs, particularly methamphetamines, to be effective deterrents, I will order that the final 12 months of the 30 month sentence be suspended on conditions as set out below.
28. Therefore, and again subject to compliance with the conditions for suspension and any remissions available within the prison system, the Defendant will be required to serve a further 18 months from today which will expire in November 2022. As such, the suspension period and conditions thereon in CR 133/19 will effectively be superseded by the sentence in this proceeding.

Result

29. The Defendant is convicted of unlawful possession of illicit drugs and is sentenced on:
    • (a) count 1, to 9 months’ imprisonment;
    • (b) count 2, to 30 months’ imprisonment; and
    • (c) count 3, to 18 months’ imprisonment.
30. All sentences are to be served concurrently and from this day.
31. The final 12 months of the head sentence of 30 months is to be suspended, from the date of the Defendant's release, for a period of 2 years, on the following conditions, namely, that during that period of suspension, the Defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release; and
    • (d) complete an alcohol and drugs awareness course as directed by his probation officer.
32. Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
33. Pursuant to:
    • (a) s 32(2)(b) of the Act, the illicit drugs the subject of this proceeding are to be destroyed; and
    • (b) s 33 of the Act, the cash and other drug related paraphernalia found in the defendant's vehicle and his residence is to be forfeited to the Crown.

NUKU’ALOFA	M. H. Whitten QC
13 May 2021	LORD CHIEF JUSTICE

---

^[1] PMP [2020] TOSC 112 at [16], referring to Afu [2020] TOSC 69 and the Court of Appeal in Maile [2019] TOCA 17 approving statements by Cato J in Ngaue [2018] TOSC 38 at [5] and [6].
^[2] Ali [2020] TOSC 94 at [26].
^[3] R v Zhang [2019] NZCA 507 at [126].

^[4] As imposed in R v Metui Funaki (unreported, CR 297/20, 12 November 2020, Whitten LCJ).
^[5] See Tuita v R [1999] Tonga LR and compare the sentence by Langi AJ in R v Siaosi Makaafi (unreported, CR 219/20, 10 December 2020) for 48.33 grams of cannabis of 18 months’ imprisonment, albeit fully suspended.