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R v Latu [2021] TOSC 81; CR 289 of 2020 (21 May 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 289 of 2020

CR 12 of 2021

CR 92 of 2021

CR 101 of 2021


REX

-v-

MAKA LATU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr T. ‘Aho for the Prosecution

The Defendant in person

Date: 21 May 2021


The charges

  1. The Defendant appears today for sentencing on a total of 16 offences, namely:

The offending

  1. In relation to CR 289/20, on 15 November 2019, Police received information that the Defendant was selling drugs from his car at his residence. When the Police arrived and informed the Defendant why they were there, he turned his car towards the officers to run them over. As a result, Police fired several shots at the moving vehicle but the Defendant did not stop. He then drove his vehicle over the foot of one officer. Another officer shot the tyres of the vehicle causing it to crash into a fence. A search of the vehicle revealed a black bottle containing 1 pack of suspected methamphetamine, 4 empty packs, 2 rounds of .38 ammunition, $8,970 in cash. A small bag beside the fence contained a blue bottle and a smashed test-tube with 2 packs of suspected methamphetamine fragments. The substances were later tested and found to be 1.49 grams and 50.22 grams of methamphetamine. The Defendant did not co-operate with police.
  2. In relation to CR 12/21, on or about 21 August 2020, Police carried out a search of the Defendant’s residence. The Defendant tried to escape to a neighbouring house. When he was apprehended, he put something in his mouth. He later spat out 6 dealer bags onto the ground. Upon examination, there appeared to be some suspected methamphetamine left in one of the bags. The Defendant asked for a closer look and then tried to bite the bag but was prevented from doing so by police. As a result of the search, Police found cannabis leaves, an electronic weighing scale, smoking utensil, $1,400 cash, 6 empty dealer packets and 1 packet of methamphetamine. Again, the Defendant did not co-operate when questioned.
  3. In relation to CR 92/21, on 8 December 2020, Police carried out another search of the Defendant’s residence. Again, when the police arrived, the Defendant ran and was seen putting something in his mouth which what was later found to be a pack of cannabis. He also used his head to smash a test-tube that was in front of him. Police found weighing scales, empty dealer packets and smoking utensils. Again, the Defendant did not co-operate when questioned.
  4. On 4 March 2021, the Defendant failed to appear before this Court for arraignment in relation to CR 12/21 and a warrant was issued for his arrest.
  5. In relation to CR 101/21, on or about 31 March 2021, Police executed the said bench warrant when they found the Defendant in a room at Noah’s guesthouse. The Defendant laid face down and put a plastic pack inside his mouth. Police managed to retrieve the pack although most of it was destroyed. When they searched the Defendant, police found 1 pack of cannabis leaves, 1 pack of methamphetamine, 1 test-tube containing methamphetamine, white fragments scattered on top of the bed, 2 mobile phones and $190 in cash. The Defendant admitted that the drugs belonged to him and that the test-tubes were used for smoking drugs. The substances were later tested and found to be 7.87 grams of methamphetamine and 1.09 grams of cannabis. Upon his arrest, the Defendant chose to remain silent.

History of proceedings

  1. On 3 November 2020, the Defendant pleaded not guilty to all six counts in proceeding CR 289/20 and the trial in that matter was listed to commence on 12 April 2021.
  2. On 12 April 2021, the Defendant changed his pleas to all six counts in CR 289/20 to guilty and pleaded guilty to the three counts in proceeding CR 12/21. He also indicated that he wished to plead guilty to all other outstanding drug related matters then before the Magistrates Court so that he could be sentenced together for all offences.
  3. On 7 March 2021, the Defendant pleaded guilty to all charges in both proceedings CR 92/21 and CR 101/21.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The only mitigating factor submitted is the Defendant’s guilty pleas.
  3. The Defendant has an extensive criminal history, including, relevantly:
  4. The Crown referred to the following comparable sentences:
  5. Here, the Crown’s submits the following sentence formulation:

Presentence report

  1. The Defendant is 35 years of age. He is the fourth of eight children. He grew up in an unstable environment and, at a very young age, was exposed to drugs by his father. His parents separated as a result of domestic violence. His mother later moved to New Zealand. He was educated to Form 5.
  2. He was sent to prison for the first time in 2005. He later emigrated to the U.S. with his first wife in 2007 but was deported back to Tonga in 2011.
  3. Having grown up with a father who sold drugs for a living led to his involvement with drugs and other criminal activities. He considers that the only people who have ever accepted him are criminals, which has caused him to be distanced from his family and community.
  4. The probation officer opines that the Defendant is remorseful but “is a long-term drug user with criminogenic needs and risks which makes him highly vulnerable to relapsing”. He needs extensive treatment. A suspended sentence is recommended on conditions.
  5. The Defendant filed a handwritten letter from prison. He described his upbringing as being surrounded by people who used and sold drugs for a living. He turned to drugs as a way to ‘numb his senses’ and it became the only way he knew how to earn money to start a new life and family.

Statutory maximum penalties

  1. The statutory maximum penalties for the offences under consideration, at the time they were committed, in descending order of severity, are as follows:

Starting points for the major methamphetamines offences

  1. The Court’s repeated stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, may be summarized as follows:
  2. In order for the Courts to send a message for deterrence of drug offending, it ensures 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. As observed in R v Afu [2021] TOSC 61, while the Defendant has been charged with, and has pleaded guilty to, possession, the facts here strongly indicate possession for the purpose of supply.[3] Moreover, the number and nature of the offences, the amounts, particularly of methamphetamines, involved and other drug-related paraphernalia and cash seized leave little doubt that the Defendant here was a drug dealer: R v 'O Pangai [2021] TOSC 50 at [16]. As a matter of law, his last offence deems him as such.
  4. While the Act does not differentiate, in terms of penalty, between possession for personal use, possession for the purpose of supply and supplying, “sentences for supplying ought generally be more severe than mere possession for personal use. As observed in Wolfgramm [2020] TOSC 78, ‘supply is the progenitor to subsequent interactions ... such as use and addiction.... In other words, (and apart from a defendant’s own cultivation or manufacture) without supply, there could never be use or addiction’.
  5. Given the number of offences, I propose to formulate sentences for the two major methamphetamines counts by setting starting points and applying any discounts for mitigation. I will then impose sentences for the remainder of the offences which are commensurate with and proportionate to those two head sentences having regard to the respective statutory maximum penalties for those other offences, the relevant comparable sentences and the overall seriousness of the offending.
  6. In considering the appropriate starting point for the most serious of the offences – the possession of 50.22 grams of methamphetamines in CR 289/20 – I am reminded that in Afu, for 27.49 grams, I set a starting point of 5 years and 3 months. At the other end of the spectrum, in recent times, in R v Lisiate ‘Otuhouma (CR 61/20), for possession of just over 3 kilograms of methamphetamines, Cato J (implicitly) set a starting point of 16 years imprisonment. The useful sentencing (meaning final sentences) guidelines for Class A drugs prescribed by the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507 include band 2, between 5 and 250 grams, 2 to 9 years imprisonment. It must also be recalled that the Court’s broad discretion in sentencing can rarely, if ever, be reduced to any strict or linear mathematical exercise.
  7. Having regard to those decisions, the other comparable sentences submitted by the Crown, the added seriousness of the offending by reason of the powerful inference of the methamphetamines being for the purpose of supply and/or deemed supply and the Defendant’s violent attempt to escape apprehension by the police, I consider the appropriate starting point to be 7 years’ imprisonment.
  8. For the Defendant’s late guilty plea, I deduct 12 months, resulting in a sentence on that count of 6 years imprisonment.
  9. In relation to the possession of 7.87 grams of methamphetamines in CR 101/21, now deemed to be supplying, I set a starting point of 3 ½ years’ imprisonment.
  10. For the Defendant’s early guilty plea to that count, I deduct 12 months, resulting in a sentence of 2 ½ years imprisonment.

The other offences

  1. By reference, and a similar approach, to the above sentences for the two most serious of the offences, and having regard to the relevant statutory maximum penalties, comparable sentences referred to above, and the Defendant’s early guilty pleas in the 2021 proceedings, I impose the following sentences of imprisonment for the balance of the charges:

Concurrent vs cumulative

  1. The sentences within each proceeding are to be served concurrently.
  2. However, having regard to the fact that:

subject to considerations of totality, I consider it appropriate, prima facie, that each of the head sentences in each proceeding be served consecutively. That makes a total of those head terms of 11 ½ years.

  1. In R v Selupe [2021] TOSC 47 at [25], it was noted that:
“The totality principle requires the court to have regard to the totality of the offending, particularly where the offences are a series of related offences. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all". In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63.”

  1. In this case, even though this is not the Defendant’s first sentence of incarceration, a total of 11 ½ years imprisonment for the level of drug offending involved would be a crushing sentence. Considering the offending as a whole, all the factors and principles discussed above and the critical need for a deterrent sentence, I consider that the appropriate total sentence is 8 years’ imprisonment.

Suspension

  1. Few of the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157, favour suspension in this case. The Defendant is not particularly young. He did not co-operate with the authorities and he pleaded guilty late in CR 289/20 but early in the other proceedings.
  2. Of great concern is the Defendant’s unenviable criminal record of serious offending. He was given opportunities for rehabilitation in three of those sentences by partial suspension. Not only did he not take advantage of those opportunities, he went on to diversify his penchant for serious crime by succumbing to and exploiting illicit drugs.
  3. In my view, those who import, manufacture, distribute or supply illicit drugs are currently one of the greatest threats to the physical, mental and spiritual health of the people of Tonga and its social fabric and cohesion. Therefore, although it is incumbent on the Courts to seek to fulfil all the objectives of sentencing, in cases such as the present, the protection of the community and deterrence weigh heavily in that balance.
  4. By the same token, it is also in the community’s interest that the Defendant be given every reasonable opportunity to rehabilitate. I have carefully considered the Defendant’s expressions of remorse and the details and stated effects of the very unfortunate upbringing he penned. In one sense, it could be said, that from a very young age, he was set up for failure. Nonetheless, as an adult, he, like all, at some point must take responsibility for the consequences of his choices and the actions that follow. Now is that time.
  5. In all the circumstances, I consider it appropriate to offer the Defendant one last chance of rehabilitation through partial suspension of this sentence. I will therefore order that the final 2 years of the Defendant’s 8-year sentence be suspended on the conditions set out below.
  6. Accordingly, subject to compliance with those conditions and any remissions granted within prison, the Defendant will be required to serve 6 years imprisonment.

Result

  1. In each of proceedings CR 289/20, CR 12/21, CR 92/21 and CR 101/21, the Defendant is convicted of the offences therein and sentenced as set out in paragraph 31 above.
  2. The sentences within each proceeding are to be served concurrently.
  3. The head sentences in each proceeding are to be served consecutively.
  4. Having regard to the totality principle, the aggregate of those sentences is reduced to a net total sentence of 8 years’ imprisonment.
  5. The sentence is to be backdated to the date the Defendant was remanded in custody.
  6. The final 2 years of the sentence is to be suspended, for a period of two years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, the Defendant is to:
  7. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence.
  8. Pursuant to:

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

[1] Which occurred after the recent amendments to the Illicit Drugs Control Act came into force on 8 December 2020.
[2] Introduced by the amendments which also apply to CR 92/21.
[3] Referring to R v 'O Pangai [2021] TOSC 50.
[4] R v Selupe [2021] TOSC 47 at [22] to [24].

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