R v Pole'o [2022] TOSC 31; CR 19 of 2022 (5 May 2022)

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

CR 19 of 2022

REX

-v-
Siaosi POLE’O

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. F. Samani for the Prosecution
Defendant unrepresented
Date of Sentence: 5 May 2022

1. The warrant I issued yesterday 4^th May is now withdrawn.
2. On 28^th August 2021 Mrs Kaloniahi Fau’ese was stopped at a community police check point on the Taufa’ahau road by Nualei. It was during the hours of curfew and so she was asked to provide papers.
3. She complied and handed over her permit to Taniela Fusi of the community police. When he unfolded the documents he found a packet containing a white substance inside.
4. When the community police post was later visited by Officer Faiva’ilo he was handed the package and he in turn contacted the Drug Enforcement Taskforce.
5. This lead to a police search of the car. Discovered were further empty packets both in the boot and the driver’s door as well a further empty packet on the back seat and a broken test tube and a small bag containing $364.00.
6. The package was found to be 1.91 g of cocaine.
7. The police then searched the house and grounds where Mrs Fau’ese lived with her husband Siaosi Pole’o in ‘Alakifonua.
8. From the Fale were found 5 packets of cannabis and a packet of cannabis seeds. A test tube in the kitchen, 10 empty packets inside the washing machine, a further packet and straw from the living room. There was recovered from the bedroom an empty packet and another test tube. From inside a vehicle on their land were found 2 straws.
9. Both Mrs Fau’ese and her husband were arrested and taken to the police into custody. Neither cooperated or answered police officer’s questions.
10. The drugs were forensically tested and proved to be both cocaine and 1.05 g of cannabis.
11. Accordingly both were charged and their cases eventually before Supreme Court for arraignment.
12. Mr. Pole’o pleaded guilty to all counts on the indictment. Miss Fau’ese pleaded not guilty; the Crown accepted those pleas.

Maximum sentences

13. Under section 4 (1) (a) (iv) Illicit Drugs Control Act for possession of over 1 g class A drugs, a maximum sentence of life imprisonment, a fine not exceeding $1,000,000.00 or both.
14. Under section 4 (1) (a) (i) Illicit Drugs Control Act for possession of less than 28 g class B drugs, a maximum sentence of one year imprisonment, a fine not exceeding $5, 000.00 or both.
15. Under section 5 A Illicit Drugs Control Act for possession utensils, a maximum sentence of three years’ imprisonment, a fine not exceeding $510,000.00 or both.
16. I have been referred to precedent by the Crown.
    

Comparable sentences

R v Holani, CR 65 2020

17. A count of supplying 1.58 g methamphetamine. A 27 year old who cooperated, was of previous good character; a 2 year starting point was adopted. , reduced 10 18 months the final 9 suspended on conditions.

R v ‘Uhila Tu’i, CR 66/2019

18. Possession of 1.29 g methamphetamine.
19. Possession 5.62 g cannabis and cultivated a plant of 3.36 g.
20. For the methamphetamine possession, the head count, a starting point of 18 months, reduced to 14 months for mitigation and the last 6 months suspended.
21. The two charges of cannabis possession each received 2 months concurrent with the first count.

R v Harris Satini, CR 227/2019

22. Possession 1.32 g methamphetamine and a count reflecting his possession 4.10 g cannabis.
23. The methamphetamine count was head count. He was convicted after trial and a starting point of 2 years was adopted. Previous convictions increased that by 6 months.
24. Mitigation reduced this by 3 months. His sentence was fully suspended.
25. It is always worth going back to the case of Zhang v R [2019] NZCA 507 that revised the tariffs for methamphetamine offending set in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
26. Lord Chief Justice Whitten QC in R v Paletu’a [2021] TOSC 49, has cmmeded this approach, citing R v Amusia Mateni (CR 213/20, 14 April 2021) as an example of this case being regularly adopted.
27. The bands set were :

Band 1 under 5 g community penalty – 4 years

Band 2 under 250 g 2 – 9 years

Band 3 under 500 g 6 – 12 years

Band 4 under 2 kg 8 – 16 years

Band 5 over 2 KG 10 years – life.

28. R v Siua Hufanga CR 211/20; Chief Justice Whitten QC sentenced the defendant after a plea of guilty to 21 months, the last 9 suspended fully.

Pre-sentence report

29. The report sets out the history of a young man, still only 33 years old who has had to deal with a number of problems not his making, but fundamental to his development.
30. They are his parents abandoning him when you and then his wife leaving him for another man, someone he considered a friend.
31. He has latterly found stability in a new relationship and he has regular contact with his children who he has always been close to and supports in every way he can.
32. Described as not being a high risk.
33. He plainly is at a junction in his life and is considered still able to turn his life around.

Previous conviction

34. This was for common assault and I do not consider this is relevant.

Sentence

35. On count 1, possession of 1.91 g cocaine I adopt a starting point of 18 months, that I reduce by 30 % for his guilty plea so arrive at 12 months’ imprisonment.
36. On the other three counts, 4 months for each, concurrent.
37. That gives an overall sentence of 12 months.
    

Suspension

38. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
39. The defendant is relatively young and has co-operated with the authorities and shows appropriate remorse. He is not considered a high risk to the community.
40. The principles that underpin R v Mo’unga are that rehabilitation is central to considerations of whether to suspend and what portion of a sentence should be.
41. In this case, I have swayed by the pre-sentence report from the course I was going to adopt.
42. Plainly this offence is so serious that only a prison sentence is appropriate.
43. But with his devotion to his children, his assessed low risk, his guilty plea; I am persuaded to take an exceptional course.
44. I will fully suspend his 12 month’s imprisonment on conditions for 2 years.
45. This I do only because of his guilty plea, remorse, impressive probation report and the clear possibility of successful rehabilitation.
    1. Attend probation within 48 hours of this hearing at 1000 hrs, 5^th May 2022;
    2. He must not commit any offence punishable with imprisonment;
    3. Complete 40 hours community work under the direction of probation, and
    4. Complete a drug awareness course as directed.
46. I shall reserve any breaches to myself. This is his last chance.
47. If there are any breaches he will be re-sentenced and in all likelihood a prison sentence must follow.
48. Forfeiture and destruction of drugs and paraphernalia.
    

Total sentence

49. 12 months’ imprisonment suspended for 2 years, on the above conditions.
    

NUKU’ALOFA N. J. Cooper

5 May 2022 J U D G E