R v Lao [2022] TOSC 58; CR 65 of 2022 (21 July 2022)

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

CR 65 of 2022

REX

-v-
Nganga e Hau LAO

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. J. Lutui, DPP for the Prosecution
Mr. S. Tu’utafaiva for the Defendant
Date of Sentence: 21 July 2022

1. Mr. Lao pleaded guilty to both counts at his arraignment on 30^th June 2022.
2. They were :
   1. Cultivation cannabis plants contrary to section 4 (1) (a) (ii) of the Illicit Drugs Control Act.
   2. Possession utensils contrary to section 5 A of the Illicit Drugs Control Act.
   3. 42 cannabis plants weighing 45.08 grams and a “bong and can”, the later presumably adapted for smoking cannabis.
3. On 12^th December 2021 at approximately noon the police raided the defendant’s home address.
4. They found him sitting on the floor of his living room reading the bible. He complied with the police.
5. The plants were found growing behind his home and the smoking devices were recovered from his kitchen.
6. He was arrested, taken to the police station but declined to answer the officer’s questions.

Maximum sentences

7. The maximum sentences are 7 years, for cultivation of a quantity of cannabis over 28 grams; section 4 (1) (a) (ii); and 3 years under section 5 (A).

Pre-sentence report

8. The report makes clear that Mr. Lao has faced some difficult times, raising all his children on his own and providing for them and speaks of his being a loving and caring father.
9. The Tatakamotonga Town Officer has nothing but praise for him; that he is hard working and committed to his community.
10. He was of hitherto good character.
11. He earns some $200 a week doing construction work.
12. He has been assessed as a low risk to the community and the report tends to suggest that he is of a low risk of re-offending, having committed to never using drugs again.

Consideration

13. I have not been provided with any pictures of the plants in question.
14. There is nothing to indicate how much of the weight of the plant is unusable stems and roots and how much is leaf.
15. I note that there is nothing to suggest that this was a commercial venture and all the signs are that they were for his own use.
16. There are no dealer lists, no dealer bags, text messages referring to drug dealing, people seen arriving consistent with drug dealing or any such matter.

Comparable sentences

17. R v Saafi CR 290/2020; a starting point of 2 years and 9 months was adopted for 3 cannabis plants weighing 59.18 grams.
18. R v Finau CR 46/2020 a starting point of 3 years for 54 plants weighing 115.23 grams.
19. I have also considered the New Zealand case of R v Terewi 113/19 CA where the Court set sentencing bands.
20. These have been approved by the Court of Appeal in Tonga in Vea v R [2004] TO Law Rp 28 and likewise adopted by Lord Chief Justice Whitten QC in R v Wolgfgramm & Ors. 35 2019.
21. I have reviewed what the Court stated in Terewi about the lower level of offending:

Category 1, consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other noncustodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited.

Category 2 refers to small scale cultivation for commercial purposes.

Category 3, larger scale commercial growing.

22. Drawing all these authorities together, I conclude the right starting point for count 1 is 18 months’ imprisonment.
23. I reduce that by 30 % for the early guilty plea.
24. Count 2, I impose a sentence of 12 months. I reduce that similarly, so a term of 8 months.
25. These offences are connected, and as such their sentences ought to be made concurrent, following the authorities such as Kolo v R [2006] TOCA 5; and Hokafonu v R [2003] TOCA 3.
26. I therefore impose 12 months on count 1, 8 months on count 2. The sentences are to be concurrent.
27. Community punishments order, 40 hrs.
28. That is a sentence of 12 months’ imprisonment, which I shall suspend for 18 months on conditions.
29. Those are :
    1. Be placed on probation
    2. Report to their probation officer within 48 hours
    3. Not to commit any offences punishable by imprisonment
    4. Complete a drug awareness course as directed.

Total sentence

30. 12 months’ imprisonment fully suspended for 18 months on the above conditions.
31. Drugs and paraphernalia are to be destroyed.
    

N. J. Cooper

J U D G E

NUKU’ALOFA

21 July 2022