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R v Latu [2022] TOSC 56; CR 147 of 2021 & CR 184 of 2021 (20 July 2022)

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


CR 147 of 2021
CR 184 of 2021


REX
-v-
BRUNO LATU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr T. ‘Aho for the Prosecution
Mr D. Corbett for the Defendant
Date: 20 July 2022


The charges

  1. On 9 November 2021, the Defendant pleaded guilty:
  2. Sentencing for these matters was deferred pending the hearing and determination of the Defendant’s appeal against sentence in CR 51 of 2021. In that proceeding, the Defendant pleaded guilty on 20 April 2021 to possession (on 25 October 2020) of 0.17 grams of methamphetamine. On 15 June 2021, Niu J sentenced the Defendant to three years’ imprisonment with the final year suspended for three years, on conditions. On 21 June 2021, Niu J granted an application to stay the sentence pending appeal. On 23 May 2022, the Court of Appeal upheld the appeal and resentenced the Defendant to 9 months imprisonment without suspension, which he is currently serving.[1]

The offending

  1. On 28 April 2021, Police received information that the Defendant was selling drugs from his brother’s residence in Mataika. During a search of the residence, police found five packs of white substances floating inside the toilet bowl, one of which was dissolving. Police also found two test-tubes, a silver grinder, four pairs of gloves, 17 disposable needles, eight disposable syringes, a black Digicel phone containing five packs of methamphetamine, a number of empty dealer packs and another pack of methamphetamine. The Defendant was found to have $390 cash on him. When initially questioned, the Defendant admitted to the offending but when he was later interviewed, he chose to remain silent.
  2. On 3 August 2021, Police received information that the Defendant had a pistol. When they contacted him, the Defendant confirmed that he had hid the pistol. The next day, he surrendered to police a 6mm pistol and three rounds of 6mm ammunition. When interviewed, he admitted that he did not have a licence for the firearm or ammunition.

Crown’s submissions

CR 147/21

  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:

CR 184/21

  1. The Crown submits the following as aggravating factors:
  2. The only mitigating factor is the Defendant’s early guilty plea.

Sentencing formulation

  1. For CR 147/21, the Crown proposes the following sentence formulation:
  2. For CR 184/21, the Crown adopts the starting point in Tongamoa [2021] TOSC 51 of 18 months’ imprisonment for the firearm. On account of the early guilty plea and the Defendant’s lack of any previous firearm convictions, six months should be deducted by way of mitigation resulting in a sentence of 12 months imprisonment. The crown submits a sentence of three months imprisonment for the ammunition to be served concurrently.

Defence submissions

  1. In his submissions for both proceedings (which predated the Court of Appeal decision in AC 18/21), Mr Corbett referred to the decisions in Afu [2021] TOSC 61, ‘Amusia Mateni (CR 213/20), Manu Huni (CR 76/21) and also Maka Latu, ibid, and submitted, in summary:
  2. Mr Corbett did not make any specific submissions about the other offences.

Presentence report

  1. The probation office filed initial and supplementary presentence reports which provided the following information about the Defendant. He is now 27 years of age. He is the sixth of eight children. He was educated to form 4 in New Zealand. He grew up in an unstable environment in which his father was an abusive drug dealer. When he was 8 years old, the Defendant stole some of his father’s drugs and sold them to school dropouts. When he was 12, his father sent him and his mother and siblings to New Zealand for a better life. Not long after, his father passed away and his mother remarried. One older brother committed suicide at the age of 17 and another brother died as a result of a quarrel with another brother who is currently in prison.
  2. According to the probation officer, the Defendant was deported back to Tonga in 2020 for drug dealing.
  3. The Defendant has had little in the way of stable employment. More recently, and prior to his current incarceration, he gained employment at the Ifoifo Burger Bar and was living with his de-facto partner.
  4. In relation to the drug related offences, the Defendant confirmed to the probation officer that the drugs belonged to him and that he had been addicted to drugs from a young age. He stated that with the right counselling and support, he could see a future free from addiction. He told the probation officer that “this is the only work and life he knows because he was never given the opportunity at a normal life”.
  5. In relation to the firearm offences, the Defendant told the probation officer that the gun was “not real” and that it was a “racing gun” although he was aware that it still needed to be licensed.
  6. The probation officer opined that the Defendant grew up in a broken home which has resulted in him having a different mindset “of what life should be” and that he is remorseful and asks for the Court’s mercy. She recommended suspension on conditions.
  7. Attached to the report were a number of reference letters, as mentioned by Mr Corbett in his submissions, and which I have considered.
  8. I pause to note here that in AC 18/21, the Court of Appeal observed[2] that in the presentence report filed for the proceeding below, the Defendant admitted to the probation officer that he was a drug dealer although he had a panel beating business which was ‘a front’ and was financed by the proceeds of his drug dealing.
  9. Further, in relation to the probation officer’s reference to the Defendant having been deported from New Zealand for drug dealing, enquiry on the above appeal revealed, and the Defendant through his counsel (also Mr Corbett) confirmed, that between 2011 and 2016, the Defendant had multiple convictions in New Zealand for violence related offences including threatening to kill and grievous bodily harm. For his last offence, involving family violence, the Defendant was sentenced to 2 ½ years imprisonment and deported. His New Zealand record did not contain any drug related convictions.

Starting points

CR 147/21

  1. The maximum statutory penalties for the drug related offences are:
  2. As recently observed in R v Haisila [2022] TOSC 40 at [16], 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. The importance of denouncing and deterring serious drug offending has been emphasised.” [citations omitted]
  1. I do not agree with the Crown’s submission for an additional uplift on the primary starting point. The aggravating factors listed by the Crown are not significantly different from the usual aggravating factors for similar offending.
  2. However, having regard to the seriousness of the offending, including that by operation of ss 4(2)(b) of the Act, the possession (of more than 0.25 grams) is deemed to be supplying, the fact that the offending was committed only eight days after the Defendant pleaded guilty to possession of methamphetamine in CR 51/21 and was therefore on bail for that offence, the comparable sentences and principles referred to above, I set the following starting points:
  3. For the Defendant’s guilty pleas, I reduce those starting points to result in the following sentences:
  4. The last two sentences are to be served concurrently with each other and the head sentence for count 1.

CR 184/21

  1. The maximum statutory penalty for unlicensed possession of firearm or ammunition is 5 years’ imprisonment.
  2. As in the recent decision in R v Tongamoa [2021] TOSC 51, the remarks of Cato J in Tu’iha’ateiho [2015] TOSC 8 remain apposite:
“[14] ... Parliament has set a clear directive to the Courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm. ...
[16] ... In my view, the licensing and security of firearms in any society is a matter of great importance. ... I consider that Parliament in providing imprisonment as the appropriate penalty for being in possession of an unlicensed firearm, evidenced its intent plainly.... It would be a wrong message for the Tongan community that persons could avoid conviction for being in possession of unlicensed firearms...”
  1. In Tu'ilakepa (CR 173/14), the Defendant pleaded guilty to four counts of unlicensed possession of rifles and pistols. He was fined $2,000 on each count. Cato J exercised the discretion provided by s 30 of the Criminal Offences Act to impose a fine in lieu of imprisonment “because the Defendant was of good character, was a first offender, had contributed extensively to the Tongan community over many years and had unwittingly inherited the firearms from a relative who had lived at the Defendant’s premises before he died”. He also noted that the firearms had not been associated with a criminal enterprise or obtained for trafficking purposes.
  2. In Talia’uli [1997] Tonga LR 7, the Defendant was sentenced for unlicensed possession of a pistol to two years’ imprisonment and six months for possession of bullets, both suspended for three years. In Liou [2010] Tonga LR181 & AC 21/2020, the Defendant was sentenced to 12 months’ imprisonment, fully suspended together with a fine of $3,000. In Viliami Na'a (CR 115/19), the Defendant was sentenced to 2½ years imprisonment for one count of unlicensed possession of a firearm to be served concurrently with a sentence of 6 years and 9 months for grievous bodily harm.
  3. Having regard to the nature of the firearm here, the Defendant’s criminal history and his previous admission to being a drug dealer, that this offence was committed while the Defendant was on bail for CR 147/21 and less than two months after he was originally sentenced for CR 51/21 (which was stayed pending appeal), I consider it appropriate to impose a term of imprisonment.
  4. For the same reasons and having regard to the above comparable sentences, I set a starting point 18 months’ imprisonment for the firearm and six months’ imprisonment for the ammunition.
  5. For the Defendant’s early guilty plea and lack of any previous firearms convictions, I reduce those starting points to sentences of 12 months imprisonment for the firearm and 4 months imprisonment for the ammunition charge, to be served concurrently.

Consecutive or concurrent

  1. The Crown submitted that given the offences constituting each proceeding are separate crimes and unrelated, the head sentences for each proceeding should be ordered to be served cumulatively.
  2. Mr Corbett submitted, in this regard, that the Defendant “should not be punished any further as he is making a real effort to reform his life.” He understands that he will have to serve imprisonment time but asked that such time be not lengthy.
  3. Ordinarily, and subject to the totality principle, cumulative sentences should only be imposed if the offences are viewed as separate crimes or are unrelated. The question involves two issues: first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent: R v Vi [2021] TOSC 91 at [27].[3]
  4. There is no question that the offending in the two proceedings here is unrelated both temporally and in nature. Accordingly, and subject to what follows, I consider that they should be served consecutively (thereby forming an aggregate sentence of 2 years and 10 months, or 34 months), following the completion of the Defendant’s current sentence.

Totality

  1. The Crown referred to the principles discussed in R v Selupe [2021] TOSC 47, and noted that the Defendant is currently serving a 9 month prison term for AC 18/21 so that this will not be his first time in prison. The Crown submits, however, that the aggregate sentence here should be reduced by 6 months with the balance to be served upon completion of the sentence for CR 51/21.
  2. Mr Corbett referred to the decision in Vainikolo Selu (CR 106/18) where Paulsen LCJ observed that:
“... at this juncture I must have regard to the totality principle that arises due to the fact that Mr Selu is already serving a period of imprisonment. Where the Court sentences an offender for more than one offence, or sentences an offender serving an existing sentence, the aggregate or overall sentence must be 'just and appropriate' to the totality of the offending behaviour. The totality principle is to ensure that an offender is not subject to a crushing sentence or one that is not in keeping with his record and prospects.”
  1. Accordingly, Mr Corbett submitted that the totality principle should apply here as the Defendant is being sentenced for multiple offences at the same time, and that there are good prospects for his rehabilitation.
  2. In Kolo v Rex [2006] TOCA 5, the Court of Appeal explained that:
[12] The totality principle was briefly referred to in Polutele v Rex [1995] Tonga LR 59 and Hokafonu v Rex (Court of Appeal, Burchett and Tompkins JJ, 25 July 2003). In the latter case (at para 52), it was said:
‘[T]he court must have regard to the totality of the offending, particularly [emphasis added] where the offences are a series of related offences.’
A more extended statement of the principle, with citation of a number of authorities, was made in the Australian case (in the Full Court of the Federal Court) McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563, where it was said:
‘The principle of totality is discussed in some detail in D A Thomas, Principles of Sentencing (2nd ed, 1979) at pp 56-61 and in R G Fox and A Freiberg, Sentencing State and Federal Law in Victoria (1985), pp 372-373, 375, and was approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63, where a key passage from Thomas’s work was adopted in the judgment of the Court. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved. The principle applies to the later of two courts, whether or not within the same jurisdiction, where the sentences are imposed by different judges: R v MacDonald (1990) 52 A Crim R 349 at 351-352. Any other approach may easily be exposed as wrong by a reductio ad absurdum. It could not be right, in a case involving 50 minor offences, each warranting a sentence of one year, to inflict as punishment a period of 50 years in gaol, just because consecutive sentences were required by the relevant principles of law, applied without modification.’
When the court comes to apply the principle of totality, in a particular case where the prisoner has not previously been sent to gaol, the authorities (see Thomas, pp 59-60) support the view that the accumulation of sentences now to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, ‘hope [can] never come [t]hat comes to all’ (Paradise Lost, 1:66-67). In a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed."
As the Court of Appeal insisted in R v Bocskei (1970) 54 Cr App R 519 at 521, ‘the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.’”
  1. The principle has been applied in recent Court of Appeal decisions such as Tupa v R [2021] TOCA 8 and Attorney General v Penisimani Angilau (AC 31 of 2021, 23 May 2022 at [26]).
  2. In the instant case, the aggregate of the present sentences (of 34 months) following the Defendant’s sentence from AC 18/21 (of 9 months) produces a total sentence for the three lots of offending, which occurred over a period of about 10 months, of 43 months’ imprisonment.
  3. In all the circumstances, and to give effect to the totality principle, I consider it appropriate to reduce the aggregate of the instant offences from two years and 10 months (or 34 months) to two years and three months (or 27 months). The total then of all three sentences will be 3 years. In my view, that result cannot be regarded as excessive and represents “an appropriate response to [the Defendant's] recidivism and his contumelious disregard of the law” during the period of his offending: R v Manu [2020] TOSC 82.

Suspension

  1. In AC 18/21, and despite the relatively small amount of drugs involved there, the Court of Appeal declined to suspend any of the substituted sentence because:
“24. ... the Appellant’s admission to being a drug dealer, which was consistent with the other items found in his vehicle at the time of this offence, and the need to therefore protect the community, weighs against any suspension of the sentence.”
  1. Here, the Crown, the probation officer and Mr Corbett all submit that the sentences should be partially suspended.
  2. A number of the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 support that view. The Defendant is young. He co-operated to a significant extent with the authorities. He pleaded guilty at the earliest opportunity and has expressed remorse. By all accounts, he has been endeavouring to change his life despite his quite terrible upbringing and not having had the support of formal rehabilitation or counselling services for his own long-term drug addiction.
  3. Factors again suspension include the Defendant having been an admitted drug dealer, and that he committed the instant offences whilst on bail.
  4. In the end, the main consideration is whether partial suspension is likely to aid in the rehabilitation of the Defendant. In my view, it is.

Result

  1. In proceeding CR 147/21, the Defendant is convicted of:
  2. The sentences for counts 2 and 3 are to be served concurrently with the sentence on count 1.
  3. In proceeding CR 184/21, the Defendant is convicted of:
  4. The sentences in CR 147/21 and CR 184/21 are to be served cumulatively.
  5. Having regard to the totality principle, the aggregate of the said sentences (of 34 months) is reduced to 27 months imprisonment.
  6. The net sentence for these proceedings of 27 months imprisonment is to commence upon the completion of the Defendant’s sentence in AC 18/21 (CR 51/21).
  7. The final 9 months of the total sentence is suspended for a period of 2 years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
  8. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence.
  9. Subject to compliance with the said conditions and any remissions available under the Prisons Act, the Defendant will be required to serve a further 18 months in prison after his current sentence.
  10. Pursuant to s 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs the subject of this proceeding are to be destroyed.
  11. Pursuant to s 33 of the said Act, the cash seized from the Defendant is to be forfeited to the Crown.
  12. Pursuant to s 37 of the Arms and Ammunition Act, the firearm and ammunition are to be forfeited to the Crown.



NUKU’ALOFA
M. H. Whitten QC
20 July 2022
LORD CHIEF JUSTICE

[1] Bruno Latu v R (AC 18/21).
[2] [5]
[3] Citing R v Selupe [2021] TOSC 47 at [22] and R v 'Asa [2020] TOSC 72. See also Valikoula v R [2021] TOCA 5 citing Hokafonu v Rex [2003] TOCA 3 at [51].

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