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R v Afu [2021] TOSC 84; CR 6 of 2021 (4 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 6 of 2021

CR 56 of 2021

CR 117 of 2021


REX

-v-

SIFITANI AFU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Ms ‘A. ‘Aholelei for the Prosecution

Mr Tu'utafaiva for the Defendant

Date: 4 June 2021


The charges

  1. The Defendant appears today for sentencing after pleading guilty, on 16 April 2021 and 20 May 2021, to a total of 16 offences, namely:

The offending

  1. In relation to CR 6/2021, on 6 February 2020, Police received information that drugs were being sold from Paletili Afu’s residence at Vaini. When Police arrived, most of the vehicles had left. They then patrolled the Vaini area and noticed a black vehicle that was at Patetili’s residence. Police stopped the vehicle. It was being driven by the Defendant. He and two co-accused were removed from the vehicle and a search was conducted. Police found 0.93 grams of cannabis on Harris Satini, who is also to be sentenced this day. Throughout the vehicle, they also found 3 packets of methamphetamine, 4 packets of cannabis, 2 test tubes, an empty packet and $240 in cash. The Defendant did not co-operate when questioned.
  2. In relation to CR 56/21, on or about 18 December 2020, Police carried out a search of the Defendant’s residence during which they found a total of 31 packs of methamphetamine, quantities of cannabis, $460 and various drug-related utensils. The Defendant admitted that the items belonged to him but did not co-operate further when questioned.
  3. Further to the above offending the subject of the sentences to be imposed today, on 9 March 2021, after being found guilty, the Defendant was sentenced in the Magistrates Court (CR 175-176/20, after being remitted from the Supreme Court in proceeding CR 265/20) for possession of 12.42 g of cannabis and 0.31 g of methamphetamine to 9 months imprisonment, fully suspended for 12 months. That offending occurred on 1 April 2020.
  4. In relation to CR 117/21, on 11 March 2021, that is, only two days after he was given a fully suspended sentence in the Magistrates Court, Police conducted another search of the Defendant’s residence as a result of information received that he was selling drugs. During the search of one of the bedrooms, Police heard the Defendant flush the toilet and he was detained. Police found seven empty packets, one packet of suspected methamphetamine and a straw inside the toilet bowl. After being informed of his rights, the Defendant said that the objects inside the toilet bowl were his. Police also found a packet of cannabis on the floor beside the Defendant's bed. He said it belonged to somebody else. He was then arrested and, again, did not cooperate when questioned.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The only mitigating factor is the Defendant’s guilty pleas for all proceedings.
  3. As at the date hereof, the Defendant has previous convictions as referred to in paragraph 4 above.
  4. The Crown referred to the following comparable sentences:
  5. Here, the Crown’s submits the following sentence formulation:

Defence submissions

  1. Mr Tu’utafaiva submitted, in summary, that:
  2. I have also had regard to a number of character references and letters of support filed from various of the Defendant’s previous employers, church leaders and family members. They all speak highly of him and regard the current offending as out of character. They lament the turn his involvement with drugs has taken in the Defendant's life and pledge their support for him in the future after he completes his sentences for these matters.

Presentence report

  1. The Defendant is 38 years of age. He is the fourth of six children. He grew up in a good family. He was customarily adopted and raised by his grandparents and when they migrated to New Zealand, he moved back to live with his parents. He is married with no children. Prior to getting married, he had already used drugs but she passed away in 2013, he then turned to drugs, particularly, methamphetamines, as a way of coping and trying to “relieve the pain” from an injury he had sustained in a road accident. His life went downhill from there. He holds a Bachelor of Arts Degree in Accounting and Information System from the University of the South Pacific. He is currently engaged to be married. The report annexes and refers to a number of references, which I have considered.
  2. In relation to the offending, the Defendant admitted to the offences and is said to have taken responsibility for his actions. However, the probation officer opines that the Defendant has been given multiple opportunities by the court for rehabilitation and did not make use of any of those chances given to him. He has not learned his lesson and has ruined his own life. The officer recommends a custodial sentence.

Consideration

  1. The Act provides various maximum penalties for the offences under consideration comprising fines and periods of imprisonment. Fines are not appropriate in the current case.
  2. For offending which occurred prior to the recent amendments to the Act which came into effect on 8 (not 18) December 2020, the maximum term of imprisonment for possession of methamphetamine was 30 years. For offending which occurred on or after the date of the amendments, possession of less than 1 g of methamphetamine carries a maximum term of 3 years imprisonment and for possession of 1 g or more, imprisonment for life. Section 4(2) now provides that any person in possession of 7 g or more of a Class B drug such as cannabis or 0.25 g or more of a Class A drug such as methamphetamine, shall be deemed to be supplying such drugs.
  3. The prison terms for possession of cannabis remain at 1 year for less than 28 g and 7 years for 28 g or more.
  4. The new (s 5A) maximum term of imprisonment for possession of utensils is 3 years. For destroying or attempting to destroy evidence in relation to the commission of an offence under the Act (s 37A), the maximum term is 15 years imprisonment.
  5. 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. 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 offences deems him as such.
  6. 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’.
  7. As submitted by the Crown, the most serious offence of all the charges is count 1 in CR 56/21, possession of 14.34 g of methamphetamine (which occurred after the amendments to the Act and is therefore deemed to be supplying), followed by count 4 in CR 6/21 (which occurred prior to the amendments to the Act), possession of 0.98 g of methamphetamine, and then count 2 in CR 117/21, attempting to destroy evidence.
  8. Having regard to the seriousness of the offending, the amount of drugs involved, the statutory maximum penalties, the comparable sentences referred to above and the court’s robust stance in relation to sentencing for drug offences, particularly methamphetamines, as referred to most recently in R v Hufanga [2021] TOSC 80 at [14] and [15], I set the following starting points for the head counts in each proceeding:
  9. For the Defendant's early guilty pleas, and his previous clean record (bearing in mind that the offending for the Magistrates Court conviction occurred during the span of dates the subject of the proceedings hereunder consideration), I reduce each of those starting points by one third, resulting in the following sentences:
  10. By a similar comparative process, and having regard to the statutory maximums and comparable sentences for each, I impose the following terms of imprisonment for the balance of the counts:
  11. By reason of the offending in CR 117/21 occurring two days after the Defendant was sentenced in the Magistrates Court to a 9 month fully suspended sentence, I order that the suspension of that sentence be rescinded, and the sentence be activated as of this day.
  12. As the offending in each of what are now four proceedings occurred independently, and on different dates, between February 2020 and March 2021, and that all the offending post that of CR 6/21 occurred whilst the Defendant was on bail, it is appropriate, subject to the totality principle, to order that the head sentences in each proceeding be served cumulatively or consecutively: R v Latu [2021] TOSC 81 at [33] and [34].
  13. The aggregate of those sentences is 73 months imprisonment. Having regard to the totality principle, for the seriousness of the overall offending, and for a first period of incarceration, that result may be regarded as a crushing sentence. Accordingly, I consider an appropriate total head sentence to be 4 ½ years (or 54 months) imprisonment.

Suspension

  1. The considerations in Mo’unga [1998] Tonga LR 154 at 157, favour some suspension of the resulting head sentence. While the Defendant is not particularly young, the offending was clearly premeditated (albeit fuelled no doubt by his own drug addiction), and the little weight that may be given for him being a ‘breadwinner’ (R v Soane [2021] TOSC 42 at [26]), the Defendant's previous clean record and early guilty pleas together with the considerable support of those around him are strong indicators but the Defendant is likely to take the opportunity and incentive afforded by a partially suspended sentence with conditions including completion of a drug and alcohol awareness program. Accordingly, I will order that the final 18 months of the head sentence be suspended for a period of two years on conditions as set out below.
  2. In the result, subject to compliance with the said conditions and any remissions granted within prison, the Defendant will required to serve 3 years imprisonment.

Result

  1. The Defendant is convicted of the offences in each proceeding and sentenced to the terms of imprisonment set out in paragraph 24 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. The suspension of the sentence of 9 months imprisonment imposed by the Magistrates Court in CR 175-176/2020 on 9 March 2021 is rescinded and the Defendant is required to serve that sentence commencing this day, also consecutively to the head sentences referred to immediately.
  5. Having regard to the totality principle, the aggregate of all four head sentences of 73 months is reduced to 4 ½ years imprisonment.
  6. The final 18 months of the net sentence are to be suspended for a period of 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:
  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
4 June 2021
LORD CHIEF JUSTICE

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