R v Pongi [2022] TOSC 73; CR 190 & CR 193 of 2021 (28 July 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY CR 190 & 193 of 2021

REX

-v-

Sione PONGI
Kisina NEIUFI

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. H. Aleamotu’a for the Prosecution
Ms. A. Kafoa for the Defendants
Date of Sentence: 28 July 2022

1. On 14^th July 2021 at approximately 1600 hrs the police received information suggesting that Mr. Neiufi was involved in the sale of illicit drugs from his car in ‘Utulau.
2. As the police proceeded to ‘Utulau, they were updated on events and so went to the rugby field. There they arrived, located the vehicle in question. Mr. Pongi was in the front passenger seat, Mr. Neiufi in the driver’s seat.
3. The officers moved in to detain both men. This was not met by their immediate compliance. Neither defendant remained seated, still and compliant with the officers’ requests but the police restored order shortly and a search was able to take place.
4. A sum of cash was seen to fall from Mr. Neiufi’s possession. A test tube and 2 packets of what, later was established to be methamphetamine, were recovered from the driver’s seat and a further quantity of cash was recovered from the driver’s door compartment.
5. The defendants were arrested. They denied knowledge of the drugs. They and the car they were in were taken back to the Longolongo police station.
6. A search there by police tracker dog led to the recovery of 7 empty snap bags from between the front seats of the car and a further packet of methamphetamine and a wallet.
7. That wallet contained a further 5 empty snap bags and $94.
8. The cash that fell from the possession of Mr. Neiufi totalled $5,480.00, from the driver’s door compartment , $800.00 and with the money in the wallet, the total amount seized was $6,374.00
9. The weight of the methamphetamine seized totalled 3.11 grams.
10. Both declined to answer any of the officers’ questions.
11. Mr. Neiufi pleaded guilty to possession of the methamphetamine contrary to section 4 (1) (a) (iv) Illicit Drugs Control Act, and count 2 possession utensils contrary to section 5A Illicit Drugs Control Act. He also pleaded to count 4, failure to comply with a lawful request by a police officer contrary to section 29 (b) Illicit Drugs Control Act.
12. Mr. Pongi pleaded guilty to a single count of failure to comply with a lawful request by a police officer contrary to section 29 (b) Illicit Drugs Control Act.

Previous convictions

Mr. Neiufi

13. He has a single conviction for assault in 2009 for which he was fined by the Magistrates’ court.

Mr. Pongi

14. He has 4 convictions for 7 offences. In 2007 he was imprisoned for 6 months by the Magistrates’ Court for housebreaking and theft. In 2009 the same court sentenced him to 80 hours community service for unlawfully being on enclosed premises. In 2009 the Supreme Court sentenced him to 3 years’ imprisonment and a community service order and compensation for wilful damage to property and bodily harm. In 2016 before the same court he was sentenced to 2 years and 3 months’ imprisonment for serious bodily harm and serious house breaking.

Pre-sentence reports

Mr. Neiufi

15. He is 28 years old. He comes from a good family and though academically at school, he was a very impressive rugby player. He represented his school at the inter college tournament and the National School rugby team in their tours of New Zealand when he was 18 through to 20 years old.
16. He plays for the Marist club and has been the club role model for the young members of that club.
17. He helps his parents both working in the bush and also caring for his mother after she suffered a minor stroke in 2018.
18. His parents stand by him and they support him through this time.
19. The report suggests that it is the influence of his half-brother, Mr. Sione Pongi, amongst others who has particularly led Mr. Neiufi astray.
20. He fully admits the offences and is remorseful.

Mr. Pongi

21. He is 35 years old. In the report it is noted that he grew up without his mother from the age of 6 when she left the family home. His education ultimately suffered and he left school at 16 without qualifications. He started to offend from an early age. A successful barber’s shop was given up on.
22. He was married with 4 children but that ended and the children live with his former wife.
23. In the report he has fully admitted the offences, apologised and is remorseful.
    

Aggravating features

Though on a small scale this was plainly commercial supply.

Mitigating features

Early guilty pleas.

Maximum sentences

24. For possession of drugs over 1 gram, the maximum sentence is a fine not exceeding $1,000,000.00 and, or a term of life imprisonment or both, pursuant to section 4 (a) (iv) Illicit Drugs Control Act.
25. 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.
26. For failure to comply with the lawful request of a police officer, a fine not exceeding $10,000.00 and, or a term of 3 years’ imprisonment or both, pursuant to section 29 Illicit Drugs Control Act.

Comparable sentences

27. The tariffs in 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) have been approved as a touchstone to be adopted in the courts in Tonga.
28. Lord Chief Justice Whitten QC in R v Paletu’a [2021] TOSC 49, approved this approach.
29. 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.

30. R v Uasike Cr 161/2019, a starting point of 3 years’ imprisonment was imposed for possession of 3.48 g methamphetamine.
31. R v Fetu‘u’aho (Unreported, Supreme Court, CR 58 & 75 of 2021). The head count was for possession of 183.33 g cannabis, a starting point of 2 years and 9 months’ imprisonment. For the offence of possession of utensils a sentence of 12 months concurrent.
32. R v Kelikupa Maile (Unreported, Supreme Court 132 of 2021) Lord Chief Justice Whitten QC sentenced the defendant for 3 grams methamphetamine (as well as an offence of possession of a total of 51.32 g cannabis.) He noted that the Crown had referred to the case of Paletu’a (Cr/2021) (para 7.) in their submissions, where the court had adopted a starting point of 3 years and 3 months for possession 3.16 g methamphetamine; that starting point reduced by 13 months for mitigation. The Lord Chief Justice then set a starting point in the case of Mr. Maile of 3 years’ imprisonment, before making the appropriate adjusts concerning his offending on bail, a plea of guilty (albeit late) and mitigation.
33. Ultimately he suspended the last 12 months of the sentence for 2 years upon conditions.
34. 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 were imposed by Lord Chief Justice Whitten QC. Those were fully suspended for 2 years.
35. R v Latu Cr 289/2020 and 92/2021 Lord Chief Justice Whitten QC for the two separate offences of failure to comply with a lawful request by a police officer marked each offence with a term of 9 months, after the plea was taken into account (para 31). Thus I conclude a starting point of 15 months is within the range applicable for this offence.
    

Sentences

Mr. Neiufi

36. For count 1, I arrive at a starting point of 3 years’ imprisonment. I reduce that by 30 % for his timely guilty plea. That gives a 2 year sentence.
37. I have reflected at length upon his mitigation. I have thought long and hard about the four excellent references that he has provided and the positive words in the pre-sentence report. That he helps his parents, that they stand by him and especially his role within his rugby club. Exceptionally, I am persuaded to reduce his sentence by a further 3 months, because of his positive character.
38. That makes 21 months.
39. For count 2, I impose a 12 months starting point, reduced for his guilty plea to 8 months, which I make concurrent to count 1.
40. Count 3, I impose a sentence of 15 months, reduced to 10 months for his plea of guilty at the first available opportunity, concurrent to count 1.
41. I acknowledge that this will be the first custodial term for Mr. Neiufi. But given the amount of money; that there was commercial supply of methamphetamine, the terrible harm this drug does and the lives it ruins in Tonga, the need for denunciation and deterrence is paramount.

Suspension

42. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
43. Mr. Neiufi has provided a number of impressive references. His pre-sentence report has positive things to say about him, especially with the work with junior players at his rugby team, this is not double counting his mitigation, rather reflecting on his prospects for rehabilitation.
44. The aim of the consideration given in Mo’unga is to promote rehabilitation.
45. Mr. Neiufi is young and has a lot of admirable qualities. He is remorseful and takes responsibility for his offending. As such I conclude it is appropriate to suspend the last 12 months of his sentence 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 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.

Mr. Pongi

46. The correct sentence is one of 15 months, reduced to 10 months for his plea of guilty at the first available opportunity.
47. Though his record is poor and the report concludes that he is one of the corrupting forces behind Mr. Neiufi’s downward spiral of behaviour, I note that the offending in the instant case was minor. He struggled with police but that quickly stopped and there were no injuries said to have been caused by this. It is also important to note that he had not been convicted of any offences for some 6 years.
48. In the round I conclude that a term of community service coupled with a suspended sentence is appropriate.
49. I impose 80 hours community service to be completed within one year.
50. His sentence of 10 months’ imprisonment is suspended for 2 years on the same conditions as Mr. Neiufi, that is :
    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. 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.
51. If either defendant breaches the terms of their suspended sentence, or Mr. Pongi fails to complete his community service they may end up being re-sentenced and serving a custodial term for that breach.
52. All money is forfeited under section 33 Illicit Drugs Control Act.
53. Drugs and paraphernalia is to be destroyed pursuant to section 32 (2) (b) of the Illicit Drugs Control Act.

Total sentences

54. Mr. Neiufi is to serve 21 months’ imprisonment, the final 12 months suspended on the above conditions.
55. Mr. Pongi is to serve 10 months’ imprisonment fully suspended for 2 years on the above conditions and to complete 80 hours community service.
    

NUKU’ALOFA N. J. Cooper

28 July 2022 J U D G E