R v Tupou [2021] TOSC 70; CR 134 of 2020 (13 May 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 134 of 2020

REX

-v-

SIONE TUPOU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mrs A. ‘Aholelei for the Prosecution

The Defendant in person

Date: 13 May 2021

The charge

1. On 6 April 2021, the Defendant pleaded guilty to possession of 0.041 grams of methamphetamine, contrary to ss 4(b)(iii) of the Illicit Drugs Control Act.

The offending

2. On or about 3 May 2019, Police received information that a number of people inside a parked vehicle at Longolongo were smoking illicit drugs. When the police arrived, one of the Defendant’s co-accused, Kelikupa Maile (CR 132/20), who was the driver, tried to drive off but was stopped by police. When the vehicle was searched, police found packets of cannabis and methamphetamine, packets of 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. Maile has since pleaded guilty to possession of the methamphetamines and cannabis, in respect of which, charges were laid.
3. The Defendant was searched and police found on him one packet of what was later tested and identified as 0.041 grams of methamphetamine.
4. When arrested, the Defendant did not co-operate with police.

Crown’s submissions

5. The Crown submits the following as aggravating features:
   • (a) even though the Defendant was found with a small amount of methamphetamine, he was in the vehicle with Maile who had a substantial amount of illicit drugs;
   • (b) test tubes were found where the Defendant was sitting in the vehicle; and
   • (c) illicit drugs are a ‘huge issue in Tonga’.
6. The Crown submits that the only mitigating factor is the Defendant’s “early guilty plea”. Elsewhere in its submissions, it also referred to the defendant’s "lack of previous conviction” [sic].^[1]
7. The Crown referred to the following comparable sentences:
   • (a) Hu’akau (CR 247/20) – the Defendant pleaded guilty to possession of 0.06 g and 0.04 grams of methamphetamine. For the head count, a starting point of 12 months’ imprisonment was set, reduced by six months for mitigation, with the resulting sentence fully suspended.
   • (b) Kumar (CR 249/20) – the Defendant pleaded guilty to possession of 0.06 g and 0.04 grams of methamphetamine and 0.39 grams of cannabis. Langi AJ set a starting point for the methamphetamines of 12 months’ imprisonment, which was reduced by six months, resulting in a sentence of 6 months, fully suspended on conditions.
8. Here, the Crown submits the following as an appropriate sentence formulation:
   • (a) a starting point of 12 months’ imprisonment;
   • (b) reduced by 6 months for mitigation; and
   • (c) full suspension, on conditions.

No presentence report

9. At his re-arraignment on 6 April 2021, the Defendant was directed to attend the probation office within 48 hours to arrange his interview for the preparation of his presentence report. That report was directed to be filed by 4 May 2021. He failed to attend the probation office as directed. As a result, on 4 May 2021, the probation office informed the court that as the Defendant had failed to attend their office, they had been unable to prepare a report.
10. Today, the Defendant told the Court that he did attend the probation office. When asked whether he had anything he wished to say in relation to his sentence, he declined to do so.

Starting point

11. The maximum statutory penalty for possession of methamphetamine is a fine of $1 million or 30 years’ imprisonment or both.
12. The Court’s stance on sentencing for illicit drugs, particularly methamphetamines, has been repeatedly recited and may be summarized as follows:^[2]
    • (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.
13. Further, 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.’^[3]
14. Unlike the approach taken in Kumar, I do not consider it appropriate to set a starting point of 12 months’ imprisonment for every offence involving methamphetamines under 1 gram. Often, such weights will involve personal use only. However, in that regard, the recent amendments to the Illicit Drugs Control Act, which came into force on 8 December 2020, and therefore do not apply to the instant case, include a new s 4(2)(b) which deems possession of 0.25 g or more of a class A drug to be supplying. In any event, I consider it appropriate to deal with each offence according to its own facts. In most cases involving illicit drugs, and until the recent amendments, the only objective metrics by which Parliament has sought to delineate between different types of offending and their relative seriousness has been the class of the drug, and in the case of cannabis, the weight or amount. Therefore, I consider that starting points should be set according to, and reflective of, the scale of weight of methamphetamine involved. In other words, the starting point for an amount of 0.01 g should logically be less than that for, say, 0.99 g. In a given case, there may be other considerations relevant to fixing a starting point but, as noted, the legislation focusses attention primarily on class and weight.
15. In this case, having regard to the seriousness of the offending, the relatively small amount of methamphetamines involved, the other aggravating circumstances, the comparable sentences, principles and approach referred to above, I set a starting point of 8 months’ imprisonment.

Mitigation

16. In relation to mitigation, I proceed on the assumption as indicated by the Crown submissions that the Defendant does not have any previous convictions.
17. The position in relation to the Defendant's guilty plea, however, requires clarification. Contrary to the Crown's submission [10] and [21], the Defendant did not plead guilty early to the charge nor had he "already pleaded guilty to the indictment" prior to his re-arraignment on 6 April 2021.
18. The court file indicates that the Defendant was first arraigned before Cato J on or about 25 June 2020. The fact that trial dates were set clearly indicates that he must have pleaded not guilty that day. On 1 October 2020, His Honour issued a warrant for the Defendant's arrest consequent upon his failure to appear. On 23 October 2020, new trial dates were set. On 6 April 2021, the date on which the trial was to commence, the Defendant changed his plea to guilty. That may also have been a result of Maile changing his plea to the bulk of the counts on the indictment and the Crown then entering a nolle prosequi in respect of those counts to which the other co-accused had pleaded not guilty. On any view, the Defendant’s guilty plea was not an early one.
19. I further wish to indicate that, contrary to the Crown's submissions, it will be extremely rare for any drug case to involve a discount for mitigation of 50% of the starting point. As I stated recently in R v Selupe [2021] TOSC 47:

“[27] ... As a general proposition, but not any rigid or inflexible rule, the authorities support an approach whereby an early guilty plea and a clean record may attract a discount in mitigation between a quarter (25%) and a third (33.3%) off. Other circumstances peculiar to each case and offender may inform where within that range the discount may be set. Recognition of the acceptance of responsibility and remorse demonstrated by admission to police and/or a plea of guilty at the earliest opportunity is an important aspect of sentencing. The usual resulting discount also serves as an incentive to other offenders to admit their guilt as a first step towards rehabilitation.”

20. To that may be added that the precise point between that stated range will usually be determined by considerations including how early the plea was entered and how clean the record. At the other end of the spectrum, and as a guide only, a very late guilty plea (such as during trial) and without a good previous record is unlikely to attract a discount of any more than 10%. This part of the Court’s sentencing exercise should never be reduced to any strict mathematical formula which may risk fettering the Court’s otherwise broad discretion in relation to sentencing generally. Nonetheless, as with all principled decisions, the approach taken and the reasons for the result must be explained, in objective terms, and in accordance with established principles including parity of sentences across sufficiently similar cases. Such an approach is intended to foster confidence and a reasonable degree of certainty and predictability in ascertaining the range of appropriate sentences from case to case, notwithstanding that each case must be decided on its own facts and other relevant circumstances.
21. In this case, on account of the Defendant’s lack of any previous convictions (i.e. an entirely clean record) and late guilty plea, I reduce the starting point by 2 months, resulting in a sentence of 6 months’ imprisonment.

Suspension

22. The considerations in Mo’unga [1998] Tonga LR 154 at 157 favour suspension. The Defendant is only 29 years of age. He has no previous convictions. While he did not initially co-operate with police, I suspect he and the others may have been influenced by Maile, who is both older, and given the amount of drugs he eventually admitted to owning in the car that day, was the apparent ringleader of the group. I also take into account the Defendant’s guilty plea, albeit late, as a sign of remorse and acceptance of responsibility.
23. On the assumption, borne of the relatively low weight of methamphetamine found on the Defendant, that his possession was for personal use only, and that this is his first offence, I consider it appropriate to offer the Defendant a chance of rehabilitation. I will therefore order that the sentence be fully suspended on conditions as set out below.

Result

24. The Defendant is convicted of possession of illicit drugs and is sentenced to 6 months’ imprisonment.
25. The sentence is to be fully suspended for a period of 12 months from today, on conditions that during the said 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 the next 48 hours;
    • (d) reside where directed by the probation officer;
    • (e) abstain from consumption of alcohol;
    • (f) complete a course on alcohol and drug awareness as directed by his probation officer; and
    • (g) perform 80 hours of community service as directed by his probation officer.
26. 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 term of imprisonment.
27. Pursuant to s 32(2)(b) of the Act, the illicit drugs the subject of this proceeding are to be destroyed.

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

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^[1] [21]
^[2] 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].
^[3] Ali [2020] TOSC 94 at [26].