R v Satini [2021] TOSC 85; CR 7 of 2021 (4 June 2021)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY CR 7 of 2021

REX
-v-
HARRIS SATINI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms ‘A. ‘Aholelei for the Prosecution
The Defendant in person
Date: 4 June 2021

CORRIGENDUM
Pursuant to order of the Court dated 11 June 2021, the following sentencing remarks are to replace those issued on 4 June 2021.

The charges

1. On 30 March 2021, the Defendant pleaded guilty to possession of 0.93 grams of cannabis.

The offending

2. On or about 6 February 2020, Police received information that drugs were being sold from Paletili Afu’s residence at Vaini. Police arrived at the residence and later patrolled the Vaini area where they spotted and stopped a black vehicle. The Defendant opened the door and tried to throw something out when he was stopped by police. He was removed from the vehicle together with his co-accused and searched. Police found on the Defendant a foil containing 0.93 grams of cannabis leaves. He did not co-operate with police when questioned.

Crown’s submissions

3. The Crown submits the following as aggravating features:
   • (a) this offending was committed while the Defendant was on bail for CR 227/19;
   • (b) illicit drugs “are a huge problem” in Tonga.
4. The only mitigating factor is the Defendant’s guilty plea.
5. The Defendant has the following previous convictions:
   • (a) Magistrates Court - 457/1996 - theft - 3 months imprisonment and $175 fine;
   • (b) Magistrates Court - 58/02 - possession of Indian hemp - 4 months imprisonment, suspended;
   • (c) Supreme Court – AM 2/16 - possession of illicit drugs - $500 fine or 1 month imprisonment;
   • (d) Supreme Court - CR 227/19 - possession of 1 gram of methamphetamines and a total of 4.1 grams of cannabis – offence occurred on 5 October 2018 – convicted after trial on 2 October 2020 – sentenced on 27 November 2020 to 2 years and 3 months’ imprisonment, fully suspended, on conditions including 70 hours community service.
6. The Crown referred to the following comparable sentences:
   • (a) Kolofale (CR 166/20) – the Defendant pleaded guilty to possession of 0.75 grams of cannabis. He was convicted and discharged conditionally for 12 months.
   • (b) Ali (CR 196/20) – the Defendant pleaded guilty to possession of methamphetamines and 0.4 grams of cannabis. He was sentenced to 1 month imprisonment for the cannabis.
   • (c) Kumar (CR 249/20) – the Defendant pleaded guilty to two counts of possession of methamphetamines and 0.39 grams of cannabis. He was sentenced to 3 months imprisonment for the cannabis, which was fully suspended on conditions.
7. The Crown submits the following sentence formulation:
   • (a) a starting point of 2 months imprisonment;
   • (b) despite the Defendant’s previous convictions for drugs, the amount of cannabis here is at the lower end of the range; and
   • (c) therefore, the sentence should be fully suspended on conditions including 100 hours community service to be performed in addition to the 70 hours ordered in CR 227/19.

Presentence report

8. The Defendant is 45 years of age. He is the third of seven children. He grew up in a religious family. In 2005, his family migrated to New Zealand leaving him in Tonga to take care of their family home. He was educated to form 6 at Liahona High School. He is married to his third wife, who resides in California.
9. In relation to the offending, the Defendant described drugs as being ‘part of his life’. His possession was for personal use only as, he said, drugs ‘really help him with his work’. He denied ever selling drugs. No information was provided about his employment history or other source/s of income.
10. The Defendant is described as being ‘genuinely remorseful’. His wife begs for mercy. The probation officer recommends that any sentence include an order that the Defendant attend a Salvation Army alcohol and drugs awareness course.

Consideration

11. The maximum statutory penalty for possession of less than 28 grams of cannabis is a fine of $5,000 or 1 year imprisonment or both.
12. In light of the Defendant’s criminal history, a fine is not appropriate.
13. Therefore, I consider the appropriate sentence to be 1 month imprisonment.

Result

14. The Defendant is convicted of possession of illicit drugs and sentenced to 1 month imprisonment.
15. The Defendant is to be given credit for the one week served since 4 June 2021.
16. The balance of the sentence is to be fully suspended and added to the fully suspended sentence in CR 227/19, without any alteration to the suspension period or conditions imposed in that proceeding.
17. Pursuant to s 32(2)(b) of the Illicit Drugs Control Act, the drugs the subject of this proceeding are to be destroyed.

NUKU’ALOFA		M. H. Whitten QC
4 June 2021		LORD CHIEF JUSTICE