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R v Mo'unga [2022] TOSC 49; CR 46 of 2022 (24 June 2022)

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


CR 46 of 2022


REX
-v-
PETELO MO’UNGA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr F. Samani for the Prosecution

No appearance by or for the Defendant (sentenced in absentia)

Date: 24 June 2022


The charges

  1. Upon his arraignment, on 10 May 2022, the Defendant pleaded guilty to possession of 26.98 grams of cocaine [count 1] and 0.07 grams of methamphetamine [count 2], contrary to s 4(1)(a)(iv) of the Illicit Drugs Control Act and possession of utensils, contrary to s 5A of the said Act [count 3].

The offending

  1. On 5 October 2021, Police received information that the Defendant was selling drugs from his vehicle parked in front of a Chinese store on Taufa’ahau Road at Lapaha. They found the Defendant in the driver’s seat of his vehicle holding a test tube. He told them he “had something on” him. As a result, police searched the Defendant and his vehicle, during which, they found $100 in cash, packs containing white crystalline substances and 25 empty dealer packs.
  2. The Defendant initially cooperated with Police when questioned and admitted that the white substances were illicit drugs, including ‘ice’, and that the test tube was his. However, on 15 October 2021, when police sought to formally interview the Defendant, he chose to remain silent.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits as mitigating factors the Defendant’s:
  3. The Crown relies on the following comparable sentences:
  4. Here, the Crown proposes the following sentence formulation:

No presentence report

  1. At the arraignment, directions were given for the filing of submissions on sentence and a presentence report by 10 June 2022. For the purpose of the latter, the Defendant was directed to attend the Probation Office within the next 48 hours to arrange for the preparation of his presentence report.
  2. The Defendant did not file any submissions. Further, on 10 June 2022, the Chief Probation Officer informed the Court that it had not been possible to prepare a presentence report because the Defendant failed to attend their office as directed or at all.
  3. As stated in previous cases, such as Hufanga, ibid:
“9. Such directions are made for the benefit of Defendants who are to be sentenced, particularly those who are not legally represented. The resources of the State in the form of the free service provided by the probation office in preparing presentence reports are valuable and limited. The reports greatly assist the Court to understand a Defendant’s background and personal circumstances and often provide an insight into the reasons for the offending from the Defendant’s perspective. Probation officers are also in a unique position to assess the genuineness or otherwise of any remorse expressed by a Defendant.
10. However, if a Defendant chooses not to attend the probation office for the preparation of his/her report, he/she can only be taken to have waived the benefit of a report. In those cases, and save for exceptional circumstances, the Court must proceed to deal with the matter, on the day directed, with whatever information is properly before it. That a judge may offer a Defendant an opportunity to make oral submissions if he or she wishes either shortly before or on the day of sentencing will rarely be an effective substitute for a presentence report. It may also interfere with the judge’s preparation of sentencing remarks.
11. In the end, these are matters for a Defendant to decide. Failure to attend the probation office, such as has occurred here, can also often be a poor reflection of a Defendant’s attitude to the offending and acceptance of responsibility and thereby devalue any professed remorse.”
  1. As such, the only information the Court had before it as to the Defendant’s antecedents is that he is 25 years of age.
  2. His failure to appear this day, in breach of his bail conditions, has also been noted.

Starting points

  1. Schedule 1 to the Act lists both cocaine and methamphetamine as Class A drugs. As observed in R v Teulilo [2021] TOSC 25:
“[22] ... While cocaine is perhaps not as prevalent in Tonga as methamphetamine, it is of the same class under the Act with the same ultimate destructive potential, not just for the user, but others associated with him or her.”
  1. The applicable maximum statutory penalties for possession of a Class A drug are:
  2. The statutory maximum penalty for count 3 - possession of a utensil capable of being used in the commission of an offence under the Act - is a fine of $10,000, 3 years imprisonment or both.
  3. The head offence here is count 1.
  4. The Crown’s submitted starting point for count 1 of 5 years imprisonment was derived by reference to the decisions in Fotu, ibid,[1] and Afu [2021] TOSC 61, where the Defendant there changed his plea at trial for possession of, relevantly, 27.49 grams of methamphetamine and 196.53 grams of cannabis. The starting point on the head count in Fotu was 5 years; and in Afu, 5 years and 3 months imprisonment.
  5. Here, the Crown noted, in summary, the observation in Afu that:
“15. In the Court’s experience, the amounts of drugs involved in CR 203 and 329 of 2020 are far greater than those usually encountered for personal use. Overall, those amounts, together with the other drug-related paraphernalia and cash seized clearly suggests that the Defendant is a middle tier drug dealer. While the Defendant has been charged with, and has pleaded guilty to, possession, the facts here strongly indicate possession for the purpose of supply: see R v 'O Pangai [2021] TOSC 50.”
  1. The offending in Fotu and Afu predated the 2020 amendments to the Act.[2] Therefore, by reason of the amount of drugs involved and other drug related paraphernalia found, both were treated as cases of possession for the purpose of supply.
  2. In R v Latu [2021] TOSC 81, it was observed that:
“24 While the Act does not differentiate, in terms of penalty, between possession for personal use, possession for the purpose of supply and supplying, ‘sentences for supplying ought generally be more severe than mere possession for personal use. As observed in Wolfgramm [2020] TOSC 78, ‘supply is the progenitor to subsequent interactions ... such as use and addiction.... In other words, (and apart from a defendant’s own cultivation or manufacture) without supply, there could never be use or addiction’.”
  1. The amendments to the Act also included ss 4(2) which now provides that any person in possession of 0.25 grams or more of a Class A drug shall be deemed to be supplying that drug. Accordingly, on count 1, the Defendant here is to be sentenced on the basis that he was a supplier of cocaine.
  2. In the recent decision of Epuefi Laimani v R (AC 12/21, 24 May 2022 at [22]), the Court of Appeal endorsed the view that sentences for supplying, actual or deemed, ought generally be more severe than mere possession for personal use. It follows, in my view, that they should also be more severe than possession for the purpose of supplying: 'O Pangai [2021] TOSC 50 at [15].
  3. The second of the Zhang sentencing bands stipulates a sentencing range for up to 250 grams of 2 to 9 years imprisonment.
  4. In my view, in order to give effect to Parliament’s evident intention in the 2020 amendments, particularly in respect of the deemed supply provisions, the more severe maximum penalties for Class A drugs, and to reflect the necessary sentencing objectives of denunciation, deterrence and protection of the community, the starting point on count 1 here should be higher than those in Fotu and Afu. The amount of cocaine here was more than a hundred times that apparently considered by Parliament to constitute low level or personal use offending.
  5. Therefore, having regard to the seriousness of the offending, the amount of cocaine seized, the comparable sentences and principles referred to above, I set a starting point on count 1 of 5 ½ years imprisonment.
  6. On counts 2 and 3, I set starting points of 6 months imprisonment each, to be served concurrently with the sentence on count 1.

Mitigation

  1. I do not consider it appropriate to reduce the starting points by reason of this being the Defendant’s first detected drug offending. For a relatively young man, he has already developed an unenviable criminal history. To have progressed from property and dishonesty offences to violence and now to drugs is not something for which much, if any, credit should be given on this occasion.
  2. However, for the Defendant’s early admission and guilty plea, I reduce the starting points to:

Suspension

  1. Full suspension of a sentence for this level of offending, even for a first drug offence, is unlikely to provide, or be seen to provide, an effective deterrent for members of the community involved with, or considering becoming involved with, insidious Class A illicit drugs such as cocaine or methamphetamine. Full suspension would also be out of step with the approach developed by this Court in numerous comparable sentences, particularly over recent years, in relation to suspension for similar drug-related offences: Attorney General v Leka [2021] TOCA 13.
  2. However, the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 favour some suspension. The Defendant is still young, he initially co-operated with the authorities, and he pleaded guilty at the earliest opportunity. That his last significant conviction, for assault, occurred more than seven years ago is some testament to his propensity for rehabilitation if afforded the opportunity for same by a partly suspended sentence. Further, that this is his first drug conviction also suggests that his prospects of rehabilitation may be enhanced by the supervision and counselling that form part of the conditions of a partly suspended sentence.
  3. For those reasons, I consider it appropriate to order that the final 18 months of his sentence be suspended on the conditions set out below.

Result

  1. The Defendant is convicted of:
  2. The sentences on counts 2 and 3 are to be served concurrently with the sentence on count 1.
  3. The final 18 months of the head sentence is to be suspended for a period of 2 years, 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 his prison term.
  5. Pursuant to ss 32(2)(b) ad 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.
  6. I order that a warrant be issued for the arrest of the Defendant for failing to appear before the Court his day. Upon his arrest, he is to be taken directly to Hu’atolitoli Prison to commence his sentence.



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

[1] [2021] TOSC 5
[2] Which came into force on 8 December 2020.

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