R v Taliai [2022] TOSC 69; CR 32-34 of 2022 (3 August 2022)

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

CR 32-34 of 2022

REX

-v-
Simoni TALIAI
Sosefo TALIAI
Kalafitoni TOLUTA’U

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. ‘A. ‘Aholelei for the Prosecution
Defendants self-represented
Date of Sentencing: 3 August 2022

1. Count 1 Kalafitoni Toluta’u and Simioni Taliai jointly charged on about 31^st May 2021 that they were in possession of illicit drugs, namely 1.96 g of methamphetamine contrary to section 4 (1) (a) (iv) Illicit Drugs Control Act.
2. Count 2 Kalafitoni Toluta’u charged on or about 31^st May 2021 with possession of utensils, namely 4 empty packs and a smoking pipe contrary to section 5 A Illicit Drugs Control Act.
3. Count 2 Sosefo Taliai charged on or about 31^st May 2021 with possession of utensils, namely a broken smoking pipe contrary to section 5 A Illicit Drugs Control Act.

Facts

4. At approximately 1940 hrs on 31^st May 2021 the police received information that drugs were being sold by Mr. Kalafitoni Toluta’u from his car.
5. They took immediate steps and the Tactical response group, Tracker dogs and Drug Enforcement Taskforce were all deployed.
6. They found the defendants in the vehicle in question parked in Ma’ufanga.
7. Mr. Kalafitoni Toluta’u was in the driver’s seat, Simioni Taliai in the front passenger seat, Sosefo Taliai in the rear of the vehicle.
8. Police noticed that Mr. Kalafitoni Toluta’u appeared to be attempting to conceal something. He was asked to satep out of the car, which he did and found on his person was $60 in cash and three empty dealer packs.
9. A search of the vehicle led to the discovery of 2 packs of white substance in the front passenger foot well.
10. This transpired to be 1.96 g of methamphetamine.
11. The broken pipe was recovered from the rear passenger seats.
12. A further $30 was found in a wallet on the dash board and smoking pipe was recovered from the air vent to the right of the steering wheel.
13. A packet of cigarettes was seized from the car and found to contain $90 and a further empty dealer packet was removed from the compartment between the front seats.
14. All three were arrested. They chose to remain silent.
15. When they appeared for arraignment all pleaded guilty.

Mr. Kalafitoni Toluta’u

16. His pre sentence report notes his remorse. That he is faced with having recently lost his step-father, and mother, who lives in Hawaii is in declining health. He regrets the choices he has made and being separated from family close to him.
17. The report notes how quickly he lapsed into drug use on his release from his sentence for armed robbery.
18. He is described as having a criminal lifestyle which shows no signs of significant improvement (page 4, paragraph F).

Previous convictions

19. These offences occurred during the currency of his suspended sentence for armed robbery, and whilst on bail for his drug offence CR 100/2020, for which he is currently serving a term of 2 years and 6 months.
20. He has a previous conviction for domestic violence in 2016 and received a 4 month sentence that was suspended for a year from the Magistrate’s court. He was also convicted for possession illicit drugs in 2018, for which he received a fine in the Magistrate’s court.
21. On 21^st September 2018 he was sentenced to 4 years’ imprisonment for armed robbery, CR 67/2018.
22. 15^th September 2021 he was sentenced to 2 years and 6 months for possession of 2.80 g methamphetamine, CR 100/2020.
23. The instant offence was committed on 31^st May 2021, which makes him in breach of his suspended sentence for the 2018 robbery.
24. The report from the police in the United States of America, from where he was deported 2^nd December 2009, is that he has convictions for “promoting detrimental drugs, terroristic threats, robbery, sexual assault, kidnapping, possession firearms and non-compliance and disruptive while in custody.”

Mr. Simioni Taliai

25. In his pre-sentence report it notes that he has two children who are 4 and 6 years old. He works as a farmer, is responsible and takes care of his parents.
26. The report stated that he did not know the drugs were in the car, but at the last hearing he admitted he in fact did.
    

Previous convictions

27. In 2001 he received a sentence of 1 year for possession of drugs from the magistrate’s court. A further term of 6 months for cultivation of drugs, though it is not clear if that was consecutive or not.
28. In 2005 he was convicted of wilful damage for which he received a fine and compensation ordered from the Magistrate’s Court.
29. In 2006 for 6 offences including offences of possession drugs, theft and house breaking he received custodial sentence. The antecedents record states that this was for a term of 53 years (sic) and 5 months.

Mr. Sosefo Taliai

30. In his pre-sentence report he acknowledged his offending and stated he is remorseful and took full responsibility for what he had done. Peer pressure influenced him.
31. Yet the report also notes that he continues to engage in illegal behaviour and presents a risk of further offending and that, ultimately, he lacks remorse.

Previous convictions

32. His antecedent record shows that in 2018 he received 2 years’ imprisonment for serious causing bodily harm from the Supreme Court.
33. In his interview with probation he also admitted an offence of theft that he was sentenced for in the Magistrates’ Court, albeit not noted on the record sheet I was provided with.

Legislation

34. For possession of drugs over 1 gram, the maximum sentence is a fine not exceeding $1,000,00.00 and, or a term of life imprisonment or both, pursuant to section 4 (a) (iv) Illicit Drugs Control Act.
35. For possession utensils a fine not exceeding $10,000.00 and, or a term of 3 years’ imprisonment or both, pursuant to section 5 A Illicit Drugs Control Act.

Comparable sentences

36. Starting at the case of Zhang v R [2019] NZCA 507 that revised the tariffs for methamphetamine offending set in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
37. Lord Chief Justice Whitten QC in R v Paletu’a [2021] TOSC 49, approved this approach.
38. The bands set are these :

Band 1 under 5 g community penalty – 4 years

Band 2 under 250 g 2 – 9 years

Band 3 under 500 g 6 – 12 years

Band 4 under 2 kg 8 – 16 years

Band 5 over 2 kg 10 years – life.

39. R v PMP Lord Chief Justice Whitten QC imposed a starting point for possession 2.12 g methamphetamine of 2 ½ years.
40. That was adopted in R v Hufanga [2021] TOSC 80, by Lord Chief Justice Whitten QC for possession 2.13 g methamphetamine.
41. In both cases that starting point was then adjusted to meet the individual extenuating circumstances of each case.
42. R v Tangata ‘o Pangai (aka Pinomi Lavemai) (Unreported, Supreme Court, CR 32 of 2021) Lord Chief Justice Whitten QC adopted a starting point of 21 months in respect of a conviction for possession 1.63 g methamphetamine.
43. R v Fetu‘u’aho (Unreported, Supreme Court, CR 58 & 75 of 2021) The head count of possession of 183.33 g cannabis was marked with a starting point of 2 years and 9 months’ imprisonment. There were other drugs offences that were sentenced of on those indictments, but the offence of possession of utensils was disposed of with a sentence of 12 months concurrent to the head count.
44. R v Huni (Unreported, Supreme Court, CR 76 of 2021) Possession utensils and permitting premises to be used for the commission of an offence, starting points of 12 months and 18 months’ imprisonment respectively were imposed by Lord Chief Justice Whitten QC. Ultimately those were fully suspended for 2 years.

Aggravating features

1. Albeit small scale this was commercial supply.
2. Mr. Kalafitoni committed this offence whilst on bail for another drugs offence and during his suspended sentence.
3. Mr. Simoni Taliai has other convictions for drug offences .

Mitigating features

1. Early guilty pleas.

Suspension

45. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
46. The central principle in R v Mo’unga is whether to suspend a sentence and if so what portion.

Sentences

47. Given the comparable cases I have considered, I pass the following sentences :

Kalafitoni Toluta’u

48. For possession 1.96 g methamphetamine, a starting point of 24 months, which I reduce by 30 % for his early guilty plea; thus 17 months. There are no other mitigating features and that sentence is not reduced further.
49. For possession of utensils, 12 months, reduced by 30 % to 8 months, reflecting the plea of guilty. That to be concurrent to the sentence in count 1.
50. In considering what to do with regard to his suspended sentence, were I to activate that the outcome could be that he has to serve the term he is currently serving of 2 ½ years for possession methamphetamine, the suspended sentence of a year and then the term of imprisonment for the instant offence.
51. I have thought very carefully about this, having in mind the totality principle. I have balanced the fact that this defendant has a bad record against what could become a cumulative sentence of 59 months.
52. I have therefore concluded that while I make this sentence consecutive to the term that he is serving and I decline to suspend any portion of this sentence, I will not activate his suspended sentence.

Simioni Taliai

53. For possession 1.96 g methamphetamine, a starting point of 24 months’, which I reduce by 30 % for his early guilty plea. Thus 17 months. There are no other mitigating features so that sentence is not reduced any further.

Suspension

54. Mr. Simioni Taliai has previous convictions for drug offences, but that was in 2006, 16 years ago. I therefore come to the view that a portion of his sentence can be suspended on conditions.
55. I will suspended the final 6 months, for 2 years on the following conditions :
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    3. report to the probation office within 48 hours of his release;
    4. reside where directed by his probation officer; and
    5. complete courses on alcohol and drug awareness and life skills as directed by his probation officer.
       

Sosefo Taliai

56. For possession of utensils, 12 months, reduced by 30 % to 8 months, reflecting the plea of guilty.
57. This sentence I fully suspend for 2 years on the following conditions
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    3. report to the probation office within 48 hours of his release;
    4. reside where directed by his probation officer; and
    5. complete courses on alcohol and drug awareness and life skills as directed by his probation officer.
58. I impose 40 hours community service to be carried out at the direction of probation.
59. All drugs are to be destroyed, all monies to be forfeited all paraphernalia to be forfeited and destroyed.

Total sentences

60. Kalafitoni Toluta’u 17 months’ imprisonment, to be served consecutive to the term he is already serving.
61. Simioni Taliai 17 months’ imprisonment, the last 6 months suspended on the above conditions.
62. Sosefo Taliai 8 months’ imprisonment fully suspended on the above conditions and to complete 40 hours community service.
    

N. J. Cooper
J U D G E

NUKU’ALOFA

3 August 2022