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R v Tu'itavake [2022] TOSC 62; CR 170 of 2021 & CR 171 of 2021 (29 July 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 170 & 171 of 2021


REX

-v-

SITALEKI TU’ITAVAKE


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Ms H. Aleamotu’a for the Prosecution

The Accused in person

Date: 29 July 2022


The charges

  1. The Defendant appears for sentencing after pleading guilty in proceedings:

in contravention of ss 4(a)(ii) and (iii) of the Illicit Drugs Control Act respectively.

The offending

  1. On 13 December 2018, Police went to Nafanua Wharf in ‘Eua to look for the Defendant as he was suspected of having committed theft. There, the Defendant was apprehended and taken to the police station. When asked about a bag left unattended at the wharf which contained cannabis, the Defendant admitted that it belonged to him.
  2. On 23 November 2020, Police received information that someone was stealing watermelons from a tax allotment at Fonongahina. When they arrived and confronted him, the Defendant ran. When he was apprehended, Police conducted a search of his vehicle and found three packs of methamphetamine and a pipe used for smoking drugs. When questioned, the Defendant did not cooperate.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that the only mitigating factor is the Defendant’s guilty pleas.
  3. The Crown relied upon the following comparable sentences:
  4. Here, the Crown proposes the following sentence formulation:

Presentence report

  1. The presentence report provided the following information.
  2. The Defendant is 48 years old. He is the third of eight children. He grew up in a good family. He was educated to form 6 and then studied at Sia’atoutai Theological College for three years.
  3. The Defendant was married and has six children to that marriage. He and his wife separated in 2017. She describes the Defendant as a “very violent and temperamental man” who would physically abuse her due to his “jealousy over nothing.” She further explained that she was aware of his addiction to illicit drugs after their separation and “countless affairs with women who are also addicted to drugs.” The children are under her care and for whom she is their sole provider.
  4. The Defendant is unemployed. His main source of income has been from farming.
  5. In relation to the offending, the Defendant is reported to have told the probation officer that:
  6. The Folaha town officer later told the probation officer that the Defendant is not a resident of Folaha nor does he have any town or tax allotments registered there.
  7. The probation officer opined that the Defendant is not remorseful and that he repeatedly lied to the probation officer during his interview. Notwithstanding, the probation officer recommended a partially suspended sentence.

Starting points

  1. At the time of the subject offending (i.e. prior to the 8 December 2020 amendments), the maximum statutory penalties were:
  2. I agree with the Prosecution’s sentencing formulation in respect of the methamphetamine charge. Having regard to the seriousness of the offending, the amount of methamphetamine suggesting possession for the purpose of supply, the comparable sentences referred to and the Defendant’s relevant criminal history, I set a starting point for that charge of 3 years imprisonment.
  3. Unfortunately, the Prosecution’s submissions on sentence did not include any reference to the not insignificant cannabis charge.
  4. In Tuita v R [1999] Tonga LR 152 at 156, the Court of Appeal opined that a conviction for growing any significant amount of cannabis, or of possession for supply of amounts of marijuana that indicate a commercial scale operation, should carry a sentence within the range of 3 to 5 years imprisonment and that such sentences would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation, along the lines of the judgment of the Court in R v Misinale (CA 13/99, 23 July 1999).
  5. In Vea v R [2004] TOCA 7, the Court of Appeal adopted the sentencing guidelines provided by the New Zealand Court of Appeal in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 for cultivation and possession of cannabis by reference to the following three categories of offending:
  6. However, the Court of Appeal also acknowledged that consideration must be given to the different social conditions in Tonga and to the different maximum penalties that apply here compared with those in New Zealand. The Terewi bands have been regularly applied in cannabis cases since: e.g., R v Papaa [2021] TOSC 158
  7. In Sione Kuli Tatu (CR 51/18), the Defendant pleaded guilty upon arraignment to possession of 0.4 grams of methamphetamine and 5,640.79 grams of cannabis. He was sentenced to 2 years and 9 months imprisonment for the cannabis with the final 9 months suspended.
  8. In Christopher Ta’ufo’ou (CR 62/17, 17 December 2018), the Defendant pleaded guilty to possession of 635.54 grams of cannabis. Cato J set a starting point of 3 years and 3 months.
  9. In Taulua [2018] TOSC 80, Paulsen LCJ set starting points of 3 years and 3 months imprisonment for possession and cultivation of 1,150.34 grams of cannabis.
  10. In Kitekei’aho [2017] TOSC 19, the Defendant was convicted after trial of possession of 3.8 kilograms of cannabis, for which Cato J set a starting point of 2 ½ years imprisonment.
  11. At the other end of the spectrum, in Wolfgramm [2020] TOSC 78, cultivation of just under 100 kilograms of cannabis was regarded as within the third of the Terewi categories referred to in Vea, and for which a primary starting point of 5 years imprisonment was set.
  12. I consider that the amount of cannabis in this case is indicative of possession for the purpose of supply and places the offending within the second of the Terewi bands. Offending of this nature will usually attract a more severe sentence than for possession simpliciter: R v Fekau [2021] TOSC 108. The Court of Appeal has emphasized the importance of denouncing and deterring serious drug offending: e.g. Attorney General v Fua'eiki [2021] TOCA 20
  13. For those reasons, I set a starting point for the cannabis offence of also 3 years imprisonment.

Mitigation

  1. For the Defendant’s guilty pleas, I reduce both starting points by six months, resulting in sentences of 2 ½ years imprisonment on each count.

Cumulative

  1. The next question is whether, subject to the totality principle, the two sentences should be served concurrently or cumulatively (in whole or in part). Ordinarily, cumulative sentences should only be imposed for offences that are unrelated: Valikoula v R [2021] TOCA 5. As the offending here occurred almost two years apart, and subject to considerations of totality below, the sentences are to be served cumulatively.

CR 76/18

  1. Section 24(3) of the Criminal Offences Act provides, relevantly, that:

(c) In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence.

...

(e) In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year.

  1. The first and arguably most important standard condition of any suspended sentence is that, during the period of suspension, the Defendant is not to commit any offence punishable by imprisonment. As the offending in CR 171/21 (possession of methamphetamine) occurred during the period of suspension for CR 76/18, and as no special circumstances have been demonstrated (such as where the subsequent offence is relatively trivial: Attorney General v Penisimani Angilau[1]), the suspension of the final six months of the Defendant’s sentence in CR 76/18 is rescinded and that term is activated, to be served in addition to the instant sentences.

Totality

  1. The resulting total of the three sentences is 5 ½ years imprisonment.
  2. Having regard to the totality of the offending, the period over which it occurred and the similarity in the drug-related nature of the offences, I consider it appropriate to reduce the aggregate sentence by one year. In my view, the resulting net sentence of 4 ½ years could not be considered ‘crushing’ or excessive, particularly given the Defendant’s criminal history: R v Manu [2020] TOSC 82 at [53].[2]

Suspension

  1. The considerations discussed in Mo’unga [1998] Tonga LR 154 at 157, do not favour suspension in this case. The Defendant is not young. He has a significant criminal history including for possession of illicit drugs and has been sentenced to a few suspended and partly suspended prison terms. The offending in CR 170/21 occurred while the Defendant was either on bail for CR 76/18 or the subject of a bench warrant for his arrest after failing to appear in that matter and the offending in CR 171/21 occurred during the suspension period in CR 76/18. He did not co-operate with the authorities in relation to the most recent offending. The offending was premeditated. He has not shown remorse. There are no other factors which diminish his culpability.
  2. Further, despite initially pleading guilty to the instant offences, the Defendant later tried to change his plea but then eventually reverted to his guilty pleas. He also breached his bail conditions resulting in him being remanded in custody to date. All his recent history demonstrates a flagrant disregard for the law and the opportunities afforded to him for rehabilitation. With his escalating drug offending, he is also becoming a risk to himself and the community. The protection of the latter must also be reflected in the sentence.
  3. For those reasons, it is clear, in my view, that the Defendant is presently incapable of responding to the deterrence intended by a suspended sentence. I therefore decline to suspend any part of the total sentence.

Result

  1. The Defendant is convicted:
  2. The suspended sentence in proceeding CR 76/18 is rescinded and the Defendant is required to serve the balance of that term of 6 months imprisonment.
  3. The above sentences are to be served cumulatively.
  4. Having regard to the totality principle, the total of the above sentences of 5 ½ years imprisonment is reduced to 4 ½ years.
  5. The sentence is to be backdated to 23 May 2022, the date on which the Defendant was remanded in custody in respect of these proceedings.
  6. I direct that the Defendant be provided with such drug rehabilitation and counselling services as may be available during his incarceration.
  7. 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
29 July 2022
LORD CHIEF JUSTICE

[1] Court of Appeal, AC 31/21, 23 May 2021.
[2] Citing Kolo v Rex [2006] TOCA 5, R v 'Asa [2020] TOSC 72, R v MacDonald (1990) 52 A Crim R 349 at 351-352 and R v Bocskei (1970) 54 Cr App R 519 at 521.

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