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R v Haisila [2022] TOSC 40; CR 22 of 2022 (1 June 2022)

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


CR 22 of 2022


REX
-v-
‘EMELINE HAISILA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms. H. Aleamotu'a for the Prosecution
Mr S. Tu’utafaiva for the Defendant
Date: 1 June 2022


The charge

  1. Upon her arraignment on 11 April 2022, the Defendant pleaded guilty to possession of 2.43 grams of methamphetamines and utensils, contrary to ss 4(1)(a)(iv) and 5A respectively of the Illicit Drugs Control Act.

The offending

  1. On 5 August 2021, following receipt of information that the Defendant was selling drugs from her residence at Ha’akame, Police conducted a search of the premises and the Defendant’s person and found three packs of methamphetamine, a total of 766 empty dealer packs, a test tube containing fragments of methamphetamine, notebooks of suspected records of drug purchases and supplies, two weighing scales, two straws and $150 in cash. The methamphetamines were later tested, confirmed as such and weighed a total of 2.43 grams. The Defendant volunteered that the drugs belonged to her and that she used them “for work”. However, when later interviewed, the Defendant did not cooperate with Police and chose to remain silent.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The only mitigating factor is the Defendant’s early guilty plea.
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown proposes the following sentence formulation:

Presentence report

  1. The Defendant is 43 years of age. She is the eldest of eight children. She grew up in relative poverty. As a result, she left school after form 3 to assist at home.
  2. The Defendant was married with four children ranging from 16 to 22 years old. She and her then husband also struggled to provide for their family. For that reason, her husband travelled to New Zealand, in the hopes of finding better opportunities, that would help their family. However, once in New Zealand, her husband did not keep in touch and left her to raise and care for their children alone with the help of her parents.
  3. The Defendant went on to live in a de facto relationship, from which she has two other children, aged 10 and 13. She told the probation office that she makes money by weaving mats.
  4. The town officer describes the Defendant and her de-factor partner as “a bad influence to their community” and that “it has come to his knowledge that they are selling drugs from their property”, that “he has warned them many times about it but they kept denying it”. There have been many other complaints within the community about the Defendant’s “indecent language” towards her partner and their children which “disrupts their community harmony, traditional and culture order”. The Defendant’s mother has also tried to stop her from taking drugs and is willing to take care of the children if the Defendant is imprisoned.
  5. In relation to the offending, the Defendant told the probation office that the drugs are not for commercial use but rather for her personal use as they “enable her to do more work”. Her partner confirmed that she used methamphetamines so that she “could stay up 2 to 3 nights without sleeping and could complete all weaving required”.
  6. The probation officer opined that the Defendant has not showed any remorse nor regret for her repeat offending. The officer recommended a partial suspension on conditions.

Defence submissions

  1. Mr Tu’utafaiva was limited in the submissions he was able to file due to not being able to contact the Defendant. He referred to the Defendant’s antecedents as per the presentence report. He had no instructions as to whether the Defendant has completed the conditions of her suspended sentence in CR 43/21. Otherwise, Mr Tu'utafaiva did not see any ‘reasonable basis to make a different sentencing submission’ from that of the Crown.

Starting points

  1. The applicable statutory maximum penalty for possession of 1 gram or more of methamphetamine is a fine of $1,000,000, life imprisonment, or both. For possession of utensils, the statutory maximum penalty is a fine of $10,000, 3 years imprisonment, or both
  2. Here, the head count is count 1, possession of 2.43 grams of methamphetamine.
  3. The continuing seriousness of methamphetamines in Tonga is reflected in statements by the Courts such as in Ali [2020] TOSC 94:
“Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply and use of insidious illicit drugs like methamphetamines...”

and more recently by the Court of Appeal in Attorney General v Fua'eiki [2021] TOCA 20:

“[14] More recent examples of sentencing for possession of methamphetamine for the purpose of supply referred to by the Crown in support of the appeal reflect a growing concern with the prevalence of methamphetamine use and a view that even first offenders should be required to serve part of their prison sentence.[1] The importance of denouncing and deterring serious drug offending has been emphasised.[2]
  1. Here, for the amount of methamphetamines alone, on a charge of possession simpliciter, the comparable sentences of this Court suggest a primary starting point of 2 to 2 ½ years imprisonment.
  2. However, ss 4(2)(b) of the Act now (since 8 December 2020) deems possession of 0.25 grams or more of a Class A drug to be supplying. The other utensils and drug related paraphernalia found at the Defendant’s residence are clearly consistent with a commercial operation. Therefore, and even if it was legally relevant, I do not accept the Defendant’s assertion that the drugs found were only for her personal use. Sentences for supplying will generally be more severe than mere possession for personal use: R v Namoa [2021] TOSC 169.[3]
  3. The seriousness of the offending here is further compounded by the fact that it was committed during the period of suspension for the sentence in CR 43/21, which was imposed only three months prior.
  4. For those circumstances of aggravation, I consider it appropriate to increase the starting point on count 1 to 3 years imprisonment.
  5. On count 2, having regard to the scale of the operation indicated by the volume and type of utensils found, I set a starting point of 12 months imprisonment.

Mitigation

  1. For the Defendant’s early guilty plea, I reduce the starting point on count 1 by 6 months and on count 2 by 2 months resulting in sentences of:

Suspension

  1. The considerations in Mo’unga v R [1998] Tonga LR 154 do not favour suspension. The Defendant is not young. She is not a first-time offender. She did not fully cooperate with the authorities when questioned.
  2. Moreover, her continued offending with methamphetamines during the suspension period of her last sentence, combined with her lack of any expressed remorse to the probation officer (other than her early guilty plea), strongly suggest that she may be unlikely to take the opportunity afforded by another suspended sentence to rehabilitate herself. Therefore, the main sentencing objectives to be served in a case such as this are punishment, denunciation, general deterrence and protection of the community.
  3. I also note that the court records and advice from the probation office reveal that while the Defendant completed the 40 hours of community service ordered in CR 43/21, she only attended the Salvation Army once in September 2021 and has not otherwise completed her drugs awareness course.
  4. However, in light of the fact that the Defendant has young children, she pleaded guilty at the earliest opportunity and her first sentence was fully suspended, I am prepared to offer her an opportunity (and probably her last) and incentive to abandon her involvement with illicit drugs for good by ordering partial suspension.

CR 43/2021

  1. Section 24(3)(c) of the Criminal Offences Act requires that the suspended sentence in CR 43/21 be activated and that term added to the sentence for the subsequent offending. There are no special circumstances identified to permit the alternative approach of lengthening the suspension period provided by ss (3)(e).
  2. That approach, however, is subject to the totality principle: Kolo v Rex [2006] TOCA 5.[4] Consistent with the approach of the Court of Appeal in Attorney General v Penisimani Angilau (AC 31/21, 23 May 2022), in order to give effect to that principle, and as credit for the community service the Defendant has completed, I reduce the head sentence for the index offending to 2 years and 3 months.

Result

  1. In this proceeding, the Defendant is convicted of:
  2. The suspension of the sentence in proceeding CR 43/21 is rescinded and that sentence of 6 months is activated and added to the above sentences, making a total sentence of 2 years and 9 months imprisonment.
  3. The final 9 months of the total sentence is to be suspended for a period of 12 months on condition that during the said period of suspension, the Defendant is to:
  4. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of her prison term.
  5. In the result, and subject to fulfilling the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 2 years in prison.
  6. Pursuant to ss 32(2)(b) and 33 of the Illicit Drugs Control Act, the illicit drugs the subject of these proceedings are to be destroyed and all cash and other items seized are forfeited to the Crown.



NUKU’ALOFA
M. H. Whitten QC
1 June 2022
LORD CHIEF JUSTICE

[1] Citing R v Tangata’O Pangai aka Pinomi Laveni (CR 32 of 2021, 23 April 2021); R v Siua Palanite Hufanga (CR 211 of 2020, 28 May 2021).
[2] Hufanga at [20]-[21].
[3] Citing e.g. Wolfgramm [2020] TOSC 78; Fekau [2021] TOSC 108; Pangi [2021] TOSC 118.
[4] Citing Bocskei (1970) 54 Cr. App. R. 519 at 521.

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