R v Latu [2021] TOSC 99; CR 51 of 2021 (15 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 51 of 2021

REX

-v-

BRUNO LATU

BEFORE HON. JUSTICE NIU

Counsel : Mrs. ‘A. ‘Aholelei for the Crown.

Mr. D. Corbett for the accused.

Report : by Probation Officer, Mrs. ‘Ema To’ia.

Submissions : by Mrs. ‘Aholelei on 18 May 2021.

By Mr. Corbett on 11 June 2021.

Sentencing : 15 June 2021.

SENTENCING

Offence

[1] Bruno Latu, you have committed the offence of possessing 0.17 gm of methamphetamine, together with Fetokai Manioke at Havelu on 25 October 2020, and you pleaded guilty to it before me in this Court on 20 April 2021.

[2] According to the summary of facts prepared by the Crown, you and Fetokai Manioke were in a blue rental car which was parked in some plantation in Havelu at about 2:00pm on that day. You were in the driver’s seat and Fetokai was in the front passenger seat.

[3] A police vehicle drove past and the driver saw your car and decided to check it out and he stopped and backed up and blocked the turn into the plantation. You saw the police vehicle and started the car and as you drove to get away, you threw something out of the car into the plantation.

[4] The police stopped your car and they searched and found what you had thrown into the plantation. It was a test tube containing the methamphetamine. The car was later searched and there were 2 straws, 15 empty packs and 1 weighing scale found on the floor of the front passenger seat. When Fetokai was searched, there was cash of $1,020 found in his trouser pocket.

[5] You were both questioned by the police but you told them nothing.

No previous conviction

[6] The Crown says you have no previous conviction.

Report

[7] The probation officer says that you are 27 years old, unmarried and that your job is drug dealing. That is what you told her. You told her that you have no job or form of employment and that you did have a panel beating operation which was being financed from drug dealing. I take that to mean that you operated that business as a front for your drug dealing operation. You told her that drug dealing is the only work you know and which you do because your father was a drug dealer ever since you grew up.

[8] You told her that you began taking drugs when you were 8 years old and that you even stole the drugs of your father and sold them for yourself for $10 for a “half-pack”.

[9] You told her that when you were 12 years old, you and your mother and all your 5 siblings were sent by your father to New Zealand and that you attended high school over there for 4 years. Your father, who remained behind in Tonga, died and your mother married again and was then able to have permanent residence for all of you in New Zealand.

[10] You however left school and began to live with friends who were dealing in drugs and you lived by dealing in drugs until you were deported back here to Tonga for dealing in drugs, in 2020 – last year, where you have carried on the same thing, until you were caught in October last year and charged with the present offence.

[11] The probation officer says that you have been made by the circumstances of your childhood to be what you now are and that you wish to change it and to have a law abiding life. She recommends that your sentence be suspended with conditions that you live where directed, take the Salvation Army course on drug awareness, that you do not take any drug and that you serve community work.

Crown submissions

[12] Crown counsel refers to the case of R v Tupou (CR134/2020) where the amount of methamphetamine found in the possession of Tupou was 0.041 gm. He was sentenced to 6 months imprisonment instead of 8 months imprisonment, because of his guilty plea and for having no previous conviction, and which sentence was fully suspended on conditions that:

(a) he be on probation to live where directed,

(b) he shall not take any drug or alcohol,

(c) he attends and complete the drug and alcohol awareness courses directed, and that

(d) he performs 80 hours community service as directed.

[13] Counsel recommends that your sentence deserves 9 months imprisonment but that in view of your guilty plea and having no previous conviction, 3 months be deducted leaving 6 months, and that those 6 months be fully suspended on the same conditions as in the Tupou Case she referred to.

Your submissions

[14] Your counsel, Mr. Corbett has submitted that the starting point for considering your sentence is 12 months imprisonment, as was held in the case of R v Selu (CR202/2020), and that 6 months be deducted from it on account of your guilty plea, your remorse and your admission of the offence in the probation report, leaving a sentence of 6 months imprisonment.

[15] He submits that in accordance with guidelines laid down by the Court of Appeal in Mo’unga v R [1998] Tonga LR 157, your 6 months sentence should be fully suspended for 12 months.

Consideration

[16] First of all, I consider that you do have a record of possession of illicit drug on your own admission to the probation officer that you were deported from New Zealand last year for drug dealing, and although it was an offence in New Zealand and not in Tonga, it is still an offence and you have a record for it. You now have committed another offence of possession of illicit drug here in Tonga.

[17] Secondly, you have also admitted to the probation officer that you have been dealing drugs here in Tonga since you have arrived back in Tonga, by operating a panel beating business as a front and which was financed from the drug operation you ran.

[18] Thirdly, evidence of that operation were found in the rental car you were driving, namely, a weighing scale and 15 empty packs for methamphetamine which were found in that car as well as the test tube containing the methamphetamine which you had thrown out of the car when the police showed up as you went to drive away.

[19] I therefore consider that your case is a much more serious case than simply having 0.17 gm of methamphetamine in your possession, like there was in Tupou’s Case. I consider that your case is more like that of R v Puloka (CR120 & 25/2020) who was in possession of an amount of methamphetamine of 4.34 gm which was clearly for the purpose of supplying. He also operated an auto repair workshop at his home as a front for his drug dealing operation. He was sentenced to 3 years imprisonment.

[20] The King and the Legislative Assembly have enacted the Illicit Drugs Control Act, which you have now breached, to have a heavy penalty in order that illicit drugs are not made, sold, distributed and supplied and/or possessed by anyone in this Kingdom. At the time you committed this offence, the penalty for your offence was a fine of up to $1,000,000 or imprisonment of up to 30 years. In December last year (after you had committed your offence in October last year) that penalty was amended by the King and the Legislative Assembly to enable the Court to sentence offenders to imprisonment for any period short of imprisonment for life. That is how serious and how bad drugs are regarded in this Kingdom, and this Court must uphold and apply that law in order that drugs are eradicated from this Country.

[21] As I see it, you have spent 10 years of your working life in New Zealand and have learnt no useful and honest trade or job. You have instead only learnt and lived on drug dealing, and no sooner you returned to Tonga, you have begun and have lived on drug dealing again. You just do not have any regard for the misery which the drugs you sell have caused to the people. The more people there are who buy the drugs from you, the more money you have, which is all you care about.

[22] I am afraid that you cannot do that anymore. You will have to earn your living like everybody else through hard and honest work. In prison, you will learn to work as a mechanic, a carpenter, a farmer or poultry operator so that when you come out you will know something with which to make a living for yourself, honestly. If you cannot do that after you come out of prison, you will reoffend and you will go back to prison, for much longer, until you can do that.

Sentencing

[23] I therefore consider that the appropriate sentence for your offence is 3 years imprisonment, that is, after allowing for your guilty plea.

[24] As to suspending that sentence I consider that you may be eligible for only a partial suspension in view of your relatively young age, and the possibility that you may likely take the opportunity of suspension to rehabilitate your yourself. If you do not rehabilitate yourself during that period of suspension and you commit another offence within the period of suspension, you will serve out the remainder of your sentence as well as the sentence for the new offence.

Orders

[25] Accordingly, I sentence you to 3 years imprisonment, but that the last year of those 3 years be suspended for 3 years from the date of your release from prison, which suspension shall be subject to the condition that you do not commit an offence punishable by imprisonment during the period of suspension.

[26] The drugs and paraphernalia found in respect of this offence shall forthwith be destroyed by the police.

Niu J

Nuku’alofa: 15 June 2021 J U D G E