R v Uasike [2022] TOSC 79; CR 30 of 2022 (2 September 2022)

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

CR 30/2022

REX
-v-
PILIOTE UASIKE

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Ms. A. Fifita-‘Aholelei for the Prosecution
Defendant in person
Date: 2 September, 2022

The proceedings

1. On 27 April 2022, the Defendant pleaded guilty to one count of possession of illicit drugs, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act and one count of unlawful possession of utensils contrary to section 5A of the said Act.

The offending

2. On or about 5 September, 2021 a call for assistance was received at the Mu’a Police Station from ‘Anitelu Moa and the community watch team at Kolonga. Mr. Moa and his team had stopped the Defendant and female companion on the road, in their vehicle, for breaching the curfew that night.
3. The Defendant and his companion were taken to the Mu’a Police Station. A search of the Defendant’s person produced 3 small plastic packs containing a white substance, an empty pack inside the left pocket of the Defendant’s trousers and residue of a white substance from inside that pocket.
4. The Drugs Enforcement Taskforce were alerted and officers were quickly dispatched to the Mu’a Police Station. The Defendant admitted that the substances found on his person were his. The officers undertook a warrantless search of the Defendant’s vehicle and found 3 more empty plastic pack on the front passenger seat, 2 test tubes inside the flap of the sun visor on the driver’s side and 1 straw on the floor directly below the driver’s seat. The Defendant admitted the utensils were his.
5. The white substances in the 3 plastic bags and the residue from the Defendant’s trousers were tested and confirmed to be methamphetamine and weighed at 4.66g in total. Crown’s submissions
6. The Crown submitted the following as aggravating factors:
   1. possession of Class A drugs in Tonga is a scourge to society.
   2. the presence of the 3 packs containing methamphetamine, empty dealer packs and other drug related utensils suggest possession for supply;
   100. the quantity of the methamphetamine on the Defendant indicate he is a supplier, and
   4. the Defendant is a repeat drug offender.
7. The Crown noted the sole mitigating factor to be the Defendant’s early guilty plea.
8. The Crown referred to the following comparable sentences:
   1. Rex v Sione Moli & Anor CR 141 of 2021 – the Defendant was a repeat drug offender found in possession of 6.91 grams of methamphetamine (headcount), cannabis and utensils. A starting point of 4 years was set for the headcount and 12 months for the possession of utensils, reduced by 12 months for his guilty plea to be served concurrently with the headcount.
   2. Rex v Uasike CR 161/2019 – the Defendant pleaded guilty to possession of 3.48 grams of methamphetamine, .87 grams of cannabis and bribing of a police officer. For the methamphetamine charge, a starting point of 3 years was set and reduced by 6 months for mitigation. The final 12 months of his aggregate sentence was suspended.
   100. Rex v Konileti Latu CR 109/17 – the Defendant pleaded guilty to possession of 4.53 grams of methamphetamine and cannabis. At starting point of 3 years was set for the methamphetamine and discounted by 12 months for mitigation. The final 12 months was suspended.
   4. Rex v Manu Huni CR 76/2021 – the Defendant was convicted of possession of utensils and permitting the use of premises for the commission of an offence. A starting point of 12 months was set for the utensils and 18 months for the use of the property which was reduced to 10 months for his clean record and fully suspended for 2 years on conditions.
      
9. The Crown proposes the following sentencing formulation:
   1. Count 1 – possession of 4.66 grams of methamphetamine (headcount) - a starting point of 3 years to be reduced by 6 months for his early guilty plea,
   2. Count 2 – possession of utensils - a sentence of 12 months’ imprisonment to be served concurrently with the sentence for the headcount,
   3. that no part of the sentence here should be suspended as the Defendant in this offending breached the conditions of his suspended sentence for CR 258,259/2021.

Pre-sentence Report

10. The Defendant is 26 years old. He is the youngest of 3 children. His parents separated when he was 5 years old. His mother travelled abroad and his father left them. They were cared for and travelled between relatives of their mother at Kolonga and their father at Fahefa. He said that his upbringing was therefore unstable and lacking.
11. He attended the Fahefa Government Primary School and went to Liahona High School and left after completing the 4^th form there. He is of good health.
12. Apart from various minor paid chores, the Defendant’s main means of an income was from selling drugs from which he made a lot of money. He told the Probation Officer that he was prepared to accept the consequences if he was caught.
13. He has expressed remorse and is undertaking a rehabilitation program under the supervision of Rev. Semisi Kava while in prison. He finds the program helpful wants to change from his wayward ways and intends to change his life for the better after all of his offences has been dealt with.

Starting point

Count 1

14. The maximum statutory penalties for possession of methamphetamine, a Class A^[1] drug, in the quantity of 1 gram or more, is a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life.
15. I have considered the guidelines provided by the New Zealand Court of Appeal in Zhang v R [2019]NZCAS 507 now regularly applied by this Court^[2] and recognized by the Court of Appeal^[3] where the instant amount of methamphetamine involved being under 5 grams would attract up to 4 years imprisonment.
16. In R v Paletu’a, CR 27 of 2021, LCJ Whitten QC stated;

“The Courts stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, has been cited time and again. It may be summarized as follows:

(a) methamphetamine is a scourge to societies everywhere that has effected a great deal of harm and misery;
(b) the distribution and use of methamphetamine in Tonga is a significant government and community concern;
(c) in prescribing a maximum penalty of 30 years’ imprisonment, the Legislature has expressed a clear intention that significant penalties are to be imposed;
(d) therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.”

17. In considering the starting points, I have also considered;
    1. Lamani v Rex^[4]involving 5.15g of methamphetamine and other substances with a sentence of 5 and 6 months imprisonment reduced to 4 years by the Court of Appeal,
    2. R v Paletu’a. ibid, involving 3.16g where LCJ Whitten QC imposed a starting point of 3 years and 3 months; and
    100. R v Tafuna^[5] involving 3.82g of methamphetamine with a starting point of 3 years and 6 months.
18. Having regard to the seriousness of the offence, the amount of methamphetamine involved, the comparable sentences above, the principles of punishment and deterrence, I set a starting point of 3 years and 6 months.

Count 2

19. In considering the starting points for possession of utensils in Moli and Huni above, I set a starting point of 12 months.
    

Mitigation

20. For the Defendant’s early guilty plea, I deduct 6 months from the above starting points,

resulting in the following sentences of imprisonment:

1. Count 1 – 3 years; and
2. Count 2 – 6 months to be served concurrently with (a).

Concurrent or Cumulative

21. The Defendant is currently serving a custodial sentence of 1 year and 8 months with 4 months’ suspension imposed on the 24 September, 2021 post this offending.
22. Prosecution has suggested for the sentence here to be added onto the one the Defendant is serving which on my calculation will be completed on 24 January, 2023 on the present conditions.
23. I am deeply troubled by these aspects of the case before me;
    1. this is the 3rd time the Defendant will be convicted for possession of illicit drugs and relevant utensils out of a total of 7 for other offences;
    2. the report of him confessing unabashed that selling drugs made him a lot of money; and
    100. that this was his main source of income;
    4. his frank and open acceptance of any outcome if he was caught seem to indicate a callous attitude to his illegal activities;
    5. this will not be a first term of imprisonment.
24. I remind myself of the principle of totality in R v Selupe^[6] that I should assess;
    1. Firstly, whether the offences are so closely connected that they should be regarded as part of one course of criminal activity, and
    2. secondly, whether the totality principle requires the sentences to be made wholly or partially concurrent.
25. There are also the cautions discussed in Pearce v The Queen^[7], McDonald v The Queen (1994) R 55CR 555 and Mill v The Queen ( 166 CLR 5CLR 59 at 62-63), namely, that:

“...... the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all". In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed.”

26. I am satisfied that this offending occurred prior the sentencing in CR 258-259/2021 and should be regarded as part of one criminal activity and in considering the totality principle I order that Count 1 in the instant sentence is to be served concurrently with that sentence. Resulting in a total sentence of 3 years’ imprisonment.

Suspension

27. Prosecution suggests that the Defendant is not entitled to any period of suspension because in applying the principles in Mo’unga v R [1998] TLR 154 the Defendant is;
    1. not young;
    2. does not hold a clean record;
    100. a repeated drug offender;
    4. in breach of the conditions of his suspended sentence in CR258-259/2021 showing a blatant disregard for the law.
    5. I have also been asked to rescind the suspension order in CR258-259.2021 imposed on 24 September, 2021 under s 24(3) (c) and (d) of the Criminal Offences Act.
28. The Defendant is 26 years old and therefore young. I also note that the date of this offending was 5 September, 2021 prior to the sentencing in CR 258-259//2021 on 24 September, 2021. Therefore, the Defendant was not in breach of the conditions of suspension in that sentence. From the summary of facts, he cooperated with the police and pleaded guilty at the first opportunity.
29. I am persuaded that his participation in the rehabilitation program in prison under the supervision of Rev. Kava, as he says, has made him realise the impact of the lack of a stable upbringing due to his parents’ separation during his formative years and being raised in between his parents’ relative’s homes.
30. I consider his expressions of remorse and desire to change for a better life for him and his wife genuine and that he is likely to take the opportunity offered by a suspended sentence to rehabilitate himself. I suspend 8 months in addition to the 4 months of suspension in CR 258-259/21 adding up to a total of 12 months’ suspension.

Result

31. The Defendant is convicted for:
    1. Possession of illicit drugs, and sentenced to 3 years’ imprisonment; and
    2. Unlawful possession of utensils, and sentenced to 6 months’ imprisonment to be served concurrently with (a).
32. To give effect to the totality principle, the head sentence for Count 1 is to be served concurrently with the sentence imposed at the Magistrates Court in CR 258-259/21, making a total aggregate sentence of 3 years inclusive of the time already served.
33. The final 12 months of the aggregate sentence is to be suspended for a period of 2 years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release from prison; and
    4. receive drug rehabilitation counselling within prison where available.
34. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
    

NUKU’ALOFA P. Tupou KC

2. September, 2022 JUDGE
   

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^[1] As per Schedule 1 of the Illicit Drugs Control Act,
^[2] R v Paletu’a [2021] TOSC 151, R v Tafuna CR 93-94 of 2021,
^[3] Laimani v R, AC 12 of 2021

^[4] AC 12 of 2021
^[5] CR 93-94 of 2021
^[6] [2021] TOSC 47, referring to R v ‘Asa [2020] TOSC 72.
^[7] [1998] HCA 57; (1998) 194 CLR 610 at 624.