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R v Langi [2022] TOSC 88; CR 31 & 71 of 2022 (14 October 2022)

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


CR 31 & 71 of 2022


REX
-v-
‘OKUSITINO LANGI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
The Defendant in person
Date: 14 October 2022


The charges

  1. On 13 July 2020, the Defendant was charged with possession of 43.85 grams of methamphetamine and 2.61 grams of cannabis. On 15 October 2021, after being convicted at trial, he was sentenced to 6 years and 3 months (75 months) imprisonment for the methamphetamine and 2 months for the cannabis, to be served concurrently with the head sentence.[1] The final 15 months of the head sentence was suspended for 2 years from the date of the defendant’s release from prison on conditions.
  2. The Defendant appears today for sentencing in respect of two further proceedings.
  3. In CR 31 of 2022, on 13 May 2022, he pleaded guilty to possession of 6.93 grams of cocaine and utensils.[2]
  4. In CR 71 of 2022, on 2 August 2022, he pleaded guilty to possession, while in prison, of 4.94 grams of methamphetamine and 2.15 grams of cocaine.

Previous convictions

  1. The Defendant has the following previous convictions in Tonga:
  2. In CR 45/2021, information from the United States embassy in Fiji showed that the Defendant was deported from the U.S. to Tonga for multiple criminal convictions including possession of narcotics, theft, and receiving stolen property. Further information from Interpol filed in these proceedings recorded that offending occurred between 1993 and 1996.

CR 31 of 2022

The offending

  1. Just after midnight on 12 September 2021, Police were patrolling when they noticed a vehicle travelling westward on Mateilona Road in which the Defendant was driving with two other passengers. Police stopped the vehicle and informed the Defendant that he was being arrested for breaching the curfew (during covid-19 restrictions). They then conducted a search of the Defendant and found two packs of what was later confirmed to be cocaine and $645 in cash. The Defendant told the officers that it was cocaine and that it was his.
  2. Later that morning, police conducted a search at the Defendant’s residence where they found over a hundred empty dealer packs, a bong bottle, a piece of can folded into a cone and a plastic cup containing white powder and tablets. The Defendant admitted that the items belonged to him.
  3. When later interviewed by the police, the Defendant elected to remain silent.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The Crown referred to the following comparable sentences:
  3. The Crown submits the following sentencing formulation:

Presentence report

  1. In response to the direction in this matter for the filing of a presentence report, the probation office filed the same report filed in 2021 for CR 45/2021 together with a brief update in relation to the offending in CR 71/2022 discussed below. I therefore recite the same summary of the presentence report from the sentencing remarks in CR 45/2021.
The Defendant is [now 48] years of age. He is the youngest of seven children. He dropped out of school at the age of 14 to help his father support their family. He and his family migrated to the United States in the early 1980s. That move changed his life. He became influenced by gang members and engaged in crime. By the time he was 18, he had already served time in prison. He later committed another offence which led to his deportation to Tonga in 1997.
In 2001, the Defendant married, from which he has three children.
He used to operate a business selling water and performing construction work.
The relevant town officer described the Defendant as a ‘non-active member’ of, and a threat to the safety of the community.
The probation officer [then] opined that the Defendant:
(a) is at moderate risk of re-offending;
(b) [was not remorseful and continued to deny any involvement with the drugs found in his house in relation to that proceeding]; and
(c) has no prospects for effective rehabilitation.
Notwithstanding, the officer recommended imprisonment with partial suspension and with rehabilitation programs in prison and when the Defendant is released.

Consideration

  1. The statutory maximum penalties for the subject offences are:
  2. Pursuant to ss 4(2)(b) of the Act, the possession of cocaine here, being over 0.25 grams, is deemed to be supplying. The presence of the other drug dealing related paraphernalia and utensils confirms that presumption. Penalties for supplying (deemed or actual) ought generally be more severe than for possession simpliciter: Epuefi Laimani v R (AC 12/21, 24 May 2022 at [22]).
  3. The guidelines in Zhang v R [2019] NZCA 507 place the cocaine offending here in band two (for less than 250 grams) indicating a starting point range between two and nine years. The amount here places him at the lower end of that band although his role and culpability place him higher along that range.
  4. Recently, in Cavallo v R [2022] NZCA 276, the New Zealand Court of Appeal considered the application of the Zhang guidelines for sentencing in cases involving cocaine. On the basis of expert scientific evidence, the Court of Appeal considered that cocaine is slightly less harmful than methamphetamine and therefore sentencing for like quantities of cocaine should not exceed sentencing for methamphetamine and should generally be slightly below comparable methamphetamine starting points – engaging a discount of around five per cent.[3] I see no reason why a similar approach should not be adopted in Tonga, especially while, as in New Zealand, cocaine use remains comparatively rare.
  5. I also take into account that the offending here occurred only days after the Defendant was convicted at trial in CR 45/2021 and while he was on bail awaiting sentence. That, combined with his previous convictions, demonstrates that he has manifested a continuing disobedience to the law. In that case, the sentencing objectives of retribution, deterrence and protection of society all indicate that a more severe penalty is warranted: R v Tapueluelu [2021] TOSC 140 at [19].
  6. Having regard to the seriousness of the offending, the statutory maximum penalties, the above comparable sentences and principles referred to, I consider the appropriate starting point in this case for count 1, possession of cocaine, to be 4 ½ years (or 54 months) imprisonment.
  7. For the Defendant's early guilty plea, I reduce that starting point by 10 months, resulting in a sentence of 44 months imprisonment.
  8. In relation to count 2, possession of utensils, I agree with the Crown’s recommendation of a sentence of 12 months imprisonment, to be served concurrently with the sentence imposed on count 1.

CR 71 of 2022

The offending

  1. On 20 December 2021, during a daily routine search at the prison, the officer noticed a suspicious plastic bag inside the Defendant’s shoe and reported it. The Defendant was then taken to the Custodial Office to be fully searched. During that search, the officers found a total of five packets of methamphetamine (totalling 4.94 grams) inside the Defendant’s shoes and $63 in cash. He admitted to owning the drugs.
  2. The next day, the Defendant’s cell was searched and a packet of cocaine (2.15 grams) and $36 in cash were found inside his mattress.
  3. When interviewed, the Defendant elected to remain silent.

Crown’s submissions

  1. The Crown submits the following as aggravating features of this offending:
  2. The only mitigating feature is the Defendant’s early guilty plea.
  3. For this proceeding, the Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentencing formulation:

Presentence report

  1. In his update, the probation officer reported that the Defendant confirmed that the drugs the subject of this proceeding belonged to him and that he supplies drugs to inmates in prison. He is said to be truly remorseful.

Defendant’s submissions

  1. On 15 September 2022, and in apparent response to the directions for sentencing in this proceeding, the Defendant filed a letter in which he confirmed responsibility for his crimes and asked for mercy. After noting his current sentence, the Defendant wrote:
“... my absence from home has taken its toll on my family not only emotionally but also financially. And the only alternative I saw as means of support from behind bar was to do what I did. It was a bad decision in desperation on my part which I now deeply regret.
I’m a husband to a loving supporting wife and a father to three fine young boys and there is nothing more important to me than to get back to them and be the family man that I know I am capable of doing. I’ve made a lot of mistakes and bad decision in life which I cannot undo. But I regret everything lesson learned, and I look to the future with a promise of good faith that I will, from now on, abide by law. Please give me a chance of opportunity to realize my hopes and make things right I’m at your mercy and your forgiveness.”

Consideration

  1. The observations set out in paragraphs 14 to 18 above are equally apposite to an assessment of the seriousness of the offending and appropriate starting points for this proceeding.
  2. However, the circumstances of this offending are more troubling for two reasons. Firstly, for the Defendant to be in possession of and selling class A drugs in prison whilst serving a lengthy sentence for similar offending demonstrates an even more egregious and contumelious disregard for the law than his record already depicted. Secondly, for the Defendant to have been able to possess and sell drugs in prison suggests real operational deficiencies in security within the prison, something which, no doubt, the Commissioner for Prisons may review upon considering these remarks.
  3. Further, even though the Defendant was charged separately with possession of the methamphetamine and cocaine, I consider it appropriate to approach the sentence for this offending on the basis of the aggregate weight of those class A drugs, which is similar to that found in CR 31/2022 discussed above. It would be artificial, in my view, to impose sentences for each of the lesser amounts when the drugs were found on the Defendant’s person and in his mattress at or about the same time and he had them for the same purpose of supplying to other inmates. Separate sentences would have the unintended effect of diluting the overall punishment to be imposed which would not accurately reflect the criminality involved.
  4. Having regard to the seriousness of the offending, including the amounts of the class A drugs involved, that the Defendant was in possession (deemed supply) of them whilst in prison serving a sentence for similar offending, his admission to selling drugs to inmates, and the other matters canvassed in the consideration section for CR 31/2022 above, I consider the appropriate starting point for the combined offending here to be 5 years imprisonment.
  5. For the Defendant's early guilty plea, I reduce that starting point by 12 months resulting in a sentence of 4 years imprisonment.

Cumulation and totality

  1. The next issue is whether the above sentences are to be served concurrently or cumulatively, in whole or in part; and how they are to be treated in relation to the Defendant’s current sentence in CR 45/21.
  2. The Crown submits that the offending in the two proceedings the subject of this ruling should be regarded as separate offences because they were committed months apart. However, to give effect to the totality principle, it is submitted that 12 months of the sentence in CR 71/2022 (which the Crown submitted ought to have been 3 years imprisonment) should be added to the sentence in CR 31/2022 (which the Crown also submitted ought to have been 3 years imprisonment), and that 3 years of that aggregate sentence should be served cumulatively to the current sentence in CR 45/2021. That approach, the Crown submits, reflects the fact that the Defendant committed the offences in CR 31/2022 in breach of his bail conditions in CR 45/2021 after he had been convicted and while awaiting sentence, and to reflect the fact that he committed the offending in CR 71/2022 while serving a prison sentence, among other aggravating features.
  3. Ordinarily, cumulative sentences should only be imposed if the offences are viewed as separate crimes[4] or are unrelated.[5] As discussed in R v Selupe [2021] TOSC 47 and R v 'Asa [2020] TOSC 72, the question involves two issues:
  4. The offending in the two proceedings here, although both for deemed supply of class A drugs, occurred three months apart and in very different circumstances. In my view, they constitute separate crimes. Prima facie, therefore, the sentences should be served cumulatively. Those sentences total 7 years and 8 months imprisonment. If added to the current sentence of 6 years and 3 months, the Defendant would be facing a total of 13 years and 11 months imprisonment.
  5. The totality principle requires the Court to have regard to the totality of the offending, particularly where the offences are a series of related offences.[6] According to the principle, a Court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. While it has been said that in the case of a defendant being sent to prison for the first time, the accumulation of sentences to be imposed ought not result, unless there is no alternative, in a total which is a crushing first period of imprisonment, and that justice should avoid placing such a prisoner in a position where all hope is lost, I consider those epithets to be applicable to the position the Defendant (who is far from a first time prisoner) here now faces.
  6. It is useful to pause here and reflect on the gravity and extent of the Defendant’s recent offending. Between CR 45/2021 and these two proceedings, he has been convicted of possessing (and deemed to be supplying), during a period of just under 18 months, a total of approximately 57 grams of methamphetamine and cocaine, and he has done so in breach of bail conditions and whilst in prison. Combined with his deplorable criminal history spanning almost 25 years, including similar offending as well as crimes of dishonesty and violence, it is difficult to garner much sympathy for the position he is now in. Over that period, he has been a regular and serious threat to the community, and his more recent foray into drugs and drug dealing, at a time when Tonga is endeavouring to combat the recent upsurge and scourge of drugs, particularly methamphetamine, only serves to heighten the threat the Defendant poses.
  7. However, to give effect to the totality principle, while maintaining consonance with the sentencing objectives of punishment, denunciation, protection of the community, deterrence and rehabilitation, I consider it appropriate to order that 20 months of the sentence in CR 31/2022 plus 28 months of the sentence in CR 71/2022 (that is, a total of 4 years) be served cumulatively with the sentence the Defendant is currently serving for CR 45/2021 less the suspended portion of that sentence of 15 months (which is 5 years). That makes a total aggregate term across the three proceedings of 9 years. The balance of the instant sentences is to be served concurrently with each other and the total aggregate sentence.

Suspension

  1. The Crown submits that the Defendant is not eligible for any suspension of the sentences in these proceedings. By reason of his extensive criminal history, in which he received a number of fully and partly suspended sentences, and the circumstances of the instant offending, I agree.
  2. However, the Crown submitted that the suspended portion of the sentence in CR 45/2021 (the final 15 months), be effectively pushed back to operate as the suspension period for the overall combined period of the sentences. The decision above for the additional terms for these proceedings to commence at the end of the 5 years to be served in CR 45/2021 effectively gives credit for that suspended period.
  3. In light of the slightly higher sentences imposed here compared to those submitted by the Crown, and to enhance the intended incentive for rehabilitation (suggested by the Defendant’s expressed remorse) and deterrent (from reoffending) in any suspended sentence, I consider it appropriate to suspend the final 2 years of the aggregate sentence.

Result

  1. In CR 31 of 2022, the Defendant is convicted of:
  2. In CR 71 of 2022, the Defendant is convicted of possession of 4.94 grams of methamphetamine and 2.15 grams of cocaine and is sentenced to four years imprisonment.
  3. To give effect to the totality principle, 20 months of the sentence in CR 31 of 2022 plus 28 months of the sentence in CR 71 of 2022 (that is, a total of 4 years) is to be served cumulatively with the sentence being served for CR 45 of 2021 up to the suspended portion (namely, 5 years), making a total aggregate sentence across the three proceedings of 9 years imprisonment.
  4. The balance of the sentences in CR 31 and 71 of 2022 are to be served concurrently with each other and the overall combined sentence for the three proceedings.
  5. The order for partial suspension in CR 45 of 2021 is rescinded and in substitution, it is ordered that the final 2 years of the total aggregate sentence of 9 years is to be suspended for a period of 3 years from the date of the Defendant’s release from prison on condition that during the said period of suspension, he is to:
  6. Pursuant to s. 32 of the Act, the drugs the subject of these proceedings are to be destroyed.
  7. Pursuant to s. 33 of the Act, the cash and other items seized are to be forfeited to the Crown.



NUKU’ALOFA
M. H. Whitten KC
14 October 2022
LORD CHIEF JUSTICE

[1] R v Langi [2021] TOSC 167 (CR 45 of 2021).
[2] Contrary to ss 4(1)(a)(iv) and 5A respectively of the Illicit Drugs Control Act (“the Act”).
[3] At [63].
[4] Kolo v Rex [2006] TOCA 5 at [11].
[5] Hokafonu v Rex [2003] TOCA 3 at [51].
[6] Kolo, ibid, at [12], referring to Polutele v Rex [1995] Tonga LR 59 and Hokafonu v Rex (Court of Appeal, Burchett and Tompkins JJ, 25 July 2003) at para 52.

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