R v Tonga [2022] TOSC 72; CR 82 of 2022 (25 August 2022)

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

CR 82 of 2022

REX

-v-
Kahealani TONGA

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. F. Samani for the Prosecution
Defendant self-represented
Date of Sentencing: 25 August 2022

1. On 21^st July 2022 Miss Kahealani Tonga pleaded guilty to a single count of possession of 2.09 g methamphetamine.
2. The circumstances of that offence are that she was the passenger of a motor car that police stopped in Tofoa on 10^th October 2021 at approximately 1100 hrs, having received information that the occupants were associated with drug use.
3. Miss Tonga was sat in the right rear of the car and she and the other three passengers were searched by the officers.
4. A pencil case was found were she had been sitting on the rear seat and inside was recovered what transpired to be 2.09 g methamphetamine, it being divided into three separate snap bags.
5. When she was confronted with these items by the police officer she immediately admitted it was “ice” and it belonged to her.
6. She was arrested and taken to the police station, but declined to answer the officer’s questions there.
7. Her case was adjourned for a pre-sentence report. This was served on the court on 12^th August 2022.
8. It sets out that she is now 38 years old. That she married at 18 years old, but that relationship quickly broke down. She has two children aged 21 and 18 from that relationship, who grew up with their father, and she has a further two children from a subsequent relationship.
9. Those two younger children have been adopted by members of her family.
10. She has no previous convictions recorded against her, but the pre-sentence report notes that she has a history of smoking methamphetamine.
11. She left Liahona High School in form 5. She is a skilled maker of Tongan mats and when she works hard applying herself to this, working to make them for export she estimates that she can earn $2,500 a week.
12. Since her arrest there has been a significant change in her behaviour.
13. The Chief Probation Officer compiled the report and one of the people interviewed was her mother.
14. Prior to October last year and her arrest, Miss Tonga had been associating with negative peers where drug use appears to have been common place, for it is said they influenced her and led her astray.
15. Her mother had been asking for her to move home and after her arrest she did. She has stopped taking illicit drugs and has settled down with her partner. That relationship is providing stability in her life.
16. Her mother describes her as having made positive changes. She is helpful at home and undertakes the domestic tasks needed to be carried out assisting her mother.
17. Her two elder children are now living with her and her partner.
18. An important development in her life is that she is 9 months pregnant with the first child she and her partner are to have together.
19. The probation report notes her guilty plea, remorse and determination to rehabilitate as well as having already stopped taking illicit drugs with her pregnancy being a major factor in that decision.
20. She has been assessed as a low risk of re-offending in the context of her plea, her remorse and the support from her family and that re-found stability.

Previous convictions

21. The Crown have provided details of Miss Tonga’s antecedents, though I have no actual record sheet before me.
22. Miss Tonga has previous convictions before the Magistrates’ Court for an assault in 2015; an offence of drink driving in 2017. Both of which she received fines for.
23. She was convicted in 2020 of a drugs offence in the Magistrates’ court in 2020, though I have no details of what that offence was, save it was said to relate to “drug offending”. In any event she received a fine.

Crown’s sentencing submissions

24. The Crown have submitted that the correct starting point is 2 ½ years an adjustment of 6 months reduction for early guilty plea and the final 6 months suspended for 1 year.
25. They have referred to R v Ha’isila CR 22/2022 where a starting point of 2 ½ years was arrived at for possession of 2.43 g methamphetamine.
26. R v Toluta’u CR 100/2020 where a starting point of 2 ½ years was considered appropriate for possession of 2.80 g methamphetamine.
27. Aside from the assessment of weigh of illicit drugs involved and that this offence was committed after another drugs offence in 2020, there is nothing in the submissions that reflects the features of the pre-sentence report that are most important; her turning her life around in terms of stable family and freeing herself of drug use and her current pregnancy.

Comparable sentences

28. Starting with 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).
29. Lord Chief Justice Whitten QC in R v Paletu’a [2021] TOSC 49, approved this approach.
30. 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.

31. R v PMP a pseudonym (unreported 3^rd December 2020, Lord Chief Justice Whitten QC imposed a starting point of 2 years for possession of 2.12 g methamphetamine.
32. R v Hufanga 28^th May 2021, unreported; Lord Chief Justice Whitten QC imposed a starting point of 2 ½ years for possession of 2.13 g methamphetamine.
33. Miss Tonga in her pre sentence report admitted the offending and explained that she was deliver the drugs from the owner to a buyer. That would mean that she was acting for the dealer and as such she was a “foot-soldier”; not a temporary custodian as she was facilitating the deal, but also not the actual dealer.
34. In any event, though she may not have been the person making the money from the deal she was facilitating this devastating trade which is a scourge that destroys the minds and lives of so many people in Tonga.
    

Legislation

35. 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.

Sentence

36. Having considered the comparable sentences and that the majority of the cases have adopted a starting point of 2 ½ years for offences of possession of methamphetamine closer to 3 grams than 2, I judge that a starting point of 2 years is appropriate.
37. From that I discount the sentence by 30 % for her early guilty plea.
38. That is to reduce it to one of 17 months.
39. I have considered what further discount is appropriate in relation to her role in her family in terms of the day to day care she provides.
40. I feel unable to reduce her sentence for this. I consider that to be no more than the “bread winner plea” as referred to by Lord Chief Justice Whitten QC R v Wolfgram & ors TOSC 78 (16^th October 2020). “Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7”
41. Because of the efforts she has made to change her life and lead a drug free existence I do feel able to reduce her sentence by a further 3 months. That gives a total of 14 months.

Pregnant women in the criminal justice system

42. I know that in the United Kingdom, as well as many other jurisdictions, the subject of incarceration of pregnant women is a much debated and vexed subject.
43. The UK Prisons’ Ombudsman’s report stated :

“We consider that all pregnancies in prison should be treated as high risk by virtue of the fact that the woman is locked behind a door for a significant amount of time.”^[1]

44. In the same debate Lord Wolfson of Tredegar, a Barrister, stated :

“When it comes to sentencing, custody is always the last alternative, and pregnancy is a mitigating factor.”

45. It is quite clear to me that the health of any new born child to a mother in prison is going to be negatively impacted, physically, mentally or quite likely both.
46. That does not of itself mean that that every women who is pregnant must escape a custodial sentence.

Suspension

47. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
48. Those principles, set out in that case, are aimed at promoting rehabilitation.
49. Considerations include whether the defendant was young, previous good character, or long time without offending. Also, whether the defendant would take the opportunity to rehabilitate.
50. Where, despite the gravity of the offending, there was no premeditation, or the offence was provoked or coerced by a co-defendant. Or, if there had been cooperation with the authorities, these would all be important factors.
51. In this case I have come to the view that the combination of the early guilty plea, remorse, dramatic change of behaviour, in breaking with negative peers and returning to live with her mother as well as re-establishing herself as a conscientious parent, as well as her pregnancy, all mean that I can take a wholly exceptional course.
52. Miss Tonga will be sentenced to 14 months’ imprisonment, suspended for 2 years on the following conditions :
    1. not to commit any offence punishable by imprisonment;
    2. be placed on probation;
    3. report to the probation office within 48 hours of today;
    4. complete courses on alcohol and drug awareness and life skills as directed by her probation officer.
53. I also impose 50 hours community service order, to be completed as directed by her probation officer.
54. I reserve any breaches to myself.

Total sentence

55. 14 months’ imprisonment suspended for 2 years on conditions, as above.
56. 50 hours community service.
57. Drugs and paraphernalia to be forfeited and destroyed. Monies to be forfeited.
    

N. J. Cooper

J U D G E

NUKU’ALOFA

25 August 2022

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^[1] As quoted by Baroness Hussein-Ece; Hansard, 17^th November 2021; https://hansard.parliament.uk/Lords/2021-11-17/debates/627F7C15-4C73-4705-8914-BAC55F5F6354/OffendersPregnantWomen