R v Malolo [2021] TOSC 94; CR 88 of 2021 (8 June 2021)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 88 of 2021

REX

-v-

TEVITA MALOLO

SENTENCING REMARKS

BEFORE: THE HONOURABLE COOPER J
Counsel: Mrs. ‘Eliesa for the Prosecution
Mr. Fili for the Accused
Date of sentence: 8^th June 2021

The charges

1. Count 1, possession of 62.05 g Methamphetamine contrary to section 4 (1)(a) (ii) Illicit Drugs Control Act.
2. Count 2, possession of utensils contrary to section 5 (a) Illicit Drugs Control Act.

The offending

3. On 21^st December 2020, the police acted on information they had received that drugs were being sold from the defendant’s home address in Tatakamotonga and searched his property.
4. A police dog was deployed and it indicated the area around the television set in the living room and that was where the drugs were found.
   

Item	Location
$30	On table
1 pack containing empty packets	In bowl on table
1 bottle and test tube attached to bottle	On floor near television
1 packet marijuana	On top of a bucket of flour
1 empty pack	Under cushion of a chair

5. The defendant’s bedroom was searched :

Item	Location
2 packs marijuana leaves	Inside a navy blue suitcase
$738	Inside same suitcase
Further quantity marijuana leaves	Under the bed
1 empty pack	Inside green plastic bag hanging from wall

6. The defendant cooperated with the police through out and admitted that the drugs were his.
7. Comparable cases.
8. I have been referred to a number of cases; R v Fa’aoso (Unreported, Supreme Court, CR 240 of 2020, 30^th October 2020). Whitten QC LCJ a starting point of 2 years for 165.37 g cannabis.
9. R v Latu (Unreported, Supreme Court, CR 286 of 2020, 28^th April 2021 Cooper J). Starting point of 8 months for possession 60.60 g cannabis
10. R v Afu (Unreported, Supreme Court, CR 203, 329 &330 of 2020, 4^h May 2021). Whitten QC LCJ; 196.43 g cannabis, a starting point of 2 years.
11. The problem with being referred to those cases is that they were each for offences committed before the new Illicit Drugs Act amendment came into force and this offence was committed after.
12. The starting date was 8^th December 2020 and this offence 21^st December.
13. The result is that this offence, being over 7 g, now must be sentenced as supply.
14. I have taken into account all that has been submitted and the contents of the probation report.
15. Consequentially, none of the cases I am referred to exactly fits. Firstly I must consider those cases are guidance, but this offence must be marked more severely.
16. Taking all these cases into consideration and considering the effect of the new legislative regime I consider that I must take a starting point of 12 months.
17. I make count 1 the head offence.
18. From this I deduct 30% for the timely guilty plea. That gives 8 months.
19. Count 2, 3 months concurrent.
20. The final 2 months I suspend for 2 years on the following conditions :
    
    • (a) not commit any offences punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release; and
    • (d) satisfactorily undertake a drugs awareness course and any other rehabilitative course/s as directed by his probation officer.
21. The drugs and any paraphernalia forfeiture and destruction.
22. The money to be forfeited.
    

NUKU’ALOFA N. J. Cooper
8 June 2021 J U D G E