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R v Hufanga [2021] TOSC 80; CR 211 of 2020 (28 May 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 211 of 2020

REX

-v-

SIUA PALANITE HUFANGA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mrs. ‘Eliesa for the Prosecution

The Defendant in person

Date: 28 May 2021


The charge

  1. On 23 April 2021, the Defendant pleaded guilty to possession 2.13 grams of methamphetamine and 8.16 grams of cannabis.

The offending

  1. On the evening of 30 March 2020, the Defendant was travelling in a vehicle being driven by another. The vehicle was stopped by police at a Covid-19 curfew checkpoint at Mu’a. The Defendant whispered to the driver who then told police that they were rushing to town because the Defendant had dislocated his shoulder. The Defendant was asked to get out of the car. When he got out, a police officer held his hand. The Defendant broke free and ran off. He was later apprehended and searched. Police found 2 packets of suspected cannabis, 4 packets of suspected methamphetamines and empty packets. The substances were later analysed and found to be 2.13 grams of methamphetamine and 8.16 grams of cannabis. The Defendant admitted to the offending.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The Defendant has a number of previous convictions, including:
  3. The only mitigating factor is the Defendant’s early guilty plea.
  4. The Crown referred to the following comparable sentences:
  5. Here, the Crown submits the following sentence formulation:

No presentence report

  1. At his arraignment on 23 April 2021, the Defendant was directed to attend the probation office within the next 48 hours to arrange an interview for the preparation of his presentence report. He failed to do so, within that time, or at all. As a result, the probation office has been unable to prepare a report.
  2. Such directions are made for the benefit of Defendants who are to be sentenced, particularly those who are not legally represented. The resources of the State in the form of the free service provided by the probation office in preparing presentence reports are valuable and limited. The reports greatly assist the Court to understand a Defendant’s background and personal circumstances and often provide an insight into the reasons for the offending from the Defendant’s perspective. Probation officers are also in a unique position to assess the genuineness or otherwise of any remorse expressed by a Defendant.
  3. However, if a Defendant chooses not to attend the probation office for the preparation of his/her report, he/she can only be taken to have waived the benefit of a report. In those cases, and save for exceptional circumstances, the Court must proceed to deal with the matter, on the day directed, with whatever information is properly before it. That a judge may offer a Defendant an opportunity to make oral submissions if he or she wishes either shortly before or on the day of sentencing will rarely be an effective substitute for a presentence report. It may also interfere with the judge’s preparation of sentencing remarks.
  4. In the end, these are matters for a Defendant to decide. Failure to attend the probation office, such as has occurred here, can also often be a poor reflection of a Defendant’s attitude to the offending and acceptance of responsibility and thereby devalue any professed remorse.
  5. Notwithstanding, I heard from the Defendant this morning. He apologised for not attending the probation office and explained that he had family issues. Otherwise, he confirmed that he now had to “face the consequences of his actions”.

Starting point

  1. At the time of this offending, the statutory maximum penalty for unlawful possession of methamphetamines is a fine of $1 million or 30 years’ imprisonment or both. The maximum penalty for possession of less than 28 grams of cannabis is a fine of $5,000 or 1 year imprisonment or both.
  2. The Court’s repeated stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, may be summarized as follows:[1]
  3. 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.’[2]
  4. In PMP, infra, the Defendant was sentenced for possession of 2.12g of methamphetamine and 0.91g of cannabis. On the methamphetamine charge, the Crown submitted a starting point of 2 years, which was accepted. However, there were extenuating circumstances in that case which do not apply here.
  5. Having regard to the seriousness of the offending, the amount of methamphetamines, the above principles and comparable sentences, I set a starting point for count 1 of 2 ½ years imprisonment.
  6. For count 2, the cannabis, I set a starting point of 4 months imprisonment.

Mitigation

  1. On account of the Defendant’s early guilty plea and that this appears to be his first detected drug offence, I reduce each of the starting points by approximately 30%, that is, 9 months for count 1 and 1 month for count 2.
  2. The resulting sentences are therefore 21 months imprisonment for count 1 and 3 months imprisonment for count 2 to be served concurrently with the sentence on count 1.

Suspension

  1. The Defendant is 49 years of age. His return to crime by his most recent theft conviction, after a 10 year break (his sentence in 2010 being fully suspended), and now this offending, is troubling. The amount of methamphetamine involved (which would be deemed supply had the offence occurred on or after 8 December 2020) and the critical imperative for the Courts to ensure that sentences, particularly for methamphetamine, are effective in providing specific and general deterrence, clearly also weigh against full suspension. However, of the other considerations in Mo’unga [1998] Tonga LR 154 at 157, that the Defendant cooperated with police (after initially trying to escape, presumably an act of panic), admitted to the offending at the outset and that this is his first drug related offence do tend in favour of some suspension.
  2. The opportunity and support offered by a period of supervision, support and education after the Defendant’s release from prison is likely to assist in his rehabilitation should he choose that course for his life. To assist him with that choice, I will also order a significant suspension period.
  3. In those circumstances, I consider it appropriate to order that the final 9 months of the head sentence be suspended for 2 years from release, on conditions.
  4. In the result, and subject to compliance with the conditions below and any remissions granted within prison, the Defendant will be incarcerated for 12 months.

Recent conviction

  1. At the outset of delivering sentence this day, the Prosecutor advised that the Defendant has recently been convicted of another theft in the Magistrates Court and sentenced to 3 months imprisonment. The Defendant confirmed that the theft occurred in February 2021, that is, while he was on bail for the instant offending. Therefore, I will order that the sentences for this proceeding be served cumulatively with that sentence, that is, this sentence will commence immediately upon the expiry of the Defendant's current three month sentence for theft.

Result

  1. The Defendant is convicted of possession of illicit drugs and is sentenced to:
  2. The sentence is to commence upon the expiry of the sentence of three months’ imprisonment currently being served by the Defendant for theft.
  3. The final 9 months of the head sentence in this proceeding are to be suspended for 2 years from the date of the Defendant’s release from prison, on conditions that during the said period of suspension, the Defendant is to:
  4. 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.
  5. Pursuant to s 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs the subject of these proceedings are to be destroyed.



NUKU’ALOFA
M. H. Whitten QC
28 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].

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