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R v Cox [2022] TOSC 90; CR 153 & 157 of 2022 (14 October 2022)

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


CR 153 & 157 of 2022


REX
-v-
[1] IAN COX
[2] BRENDA COX


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
Ms H. Stuart for the Defendants
Date: 14 October 2022


The charges

  1. The Defendants appear for sentencing after the First Defendant, Mr Cox, pleaded guilty on 5 August 2022, to unlawful possession of 1,838.95 grams of cocaine and his wife, Mrs Cox, pleaded guilty to unlawful possession of 87.83 grams of cocaine, both contrary to s. 4(1)(a)(iv) of the Illicit Drugs Control Act (“the Act”).

Procedural background

  1. On 4 October 2021, the Defendants initially pleaded not guilty to the charges[1] before Cooper J in Vava'u. On 8 October 2021, his Honour revoked their bail from the Magistrates Court and remanded both in custody pending trial. On 29 October 2021, their appeal against that decision was upheld and they were both released on bail.[2]
  2. On 14 March 2022, the Defendants applied for Cooper J to recuse himself from hearing their trial. His Honour refused to do so. On 23 May 2022, the Defendants’ appeal against that decision was also upheld and the matters were remitted to be heard by a different judge.[3]
  3. As noted, on 5 August 2022, the Defendants were rearraigned following agreement with the Crown which included withdrawal of the remaining charges against Mr Cox.

The offending

  1. The parties have agreed the following in relation to the details of the offending.[4]
  2. In the week of 19 July 2021, a raft containing 36 bricks of cocaine washed up on a beach at ‘Otulea. The cocaine was found by Nomani Naeata who then distributed it to locals in Vava’u, including three bricks (weighing approximately one kilogram each) to one, Andrew Motuliki.
  3. On 2 August 2021, during questioning by police, Mr Motuliki said that on 29 July 2021, while visiting Mr Cox for the purpose of having his chainsaw repaired, he gave some of the cocaine to the Defendants.
  4. Later that day, the Police searched the Defendants’ residence in Houmelei. A small container containing 87.83 grams of cocaine which had been supplied by Mr Motuliki was located in a storeroom connected to the residence. Mrs Cox admitted to possession of the container, which she knew contained cocaine, although she did not look inside it.
  5. On 3 August 2021, while in Police custody, Mr Cox volunteered that he was in possession of an additional quantity of cocaine which was located in a container belonging to him next to his workshop at the Puatalefusi Wharf. He explained that after Mr Motuliki had given the bricks of cocaine to him at his residence, Mr Cox took them and hid them behind a panel in the container. He accompanied Police to the container where the further 1,838.95 grams of cocaine was found.
  6. According to Mr Motuliki, he told the Defendants when he gave them the cocaine that he intended to sell it and he asked them to hold onto it while he made enquiries. The Defendants were concerned about the situation their friend had got himself into as well as the harm they knew the cocaine could do to the community if distributed.
  7. It has been further agreed that in relation to their roles and degree of involvement:
  8. Further, in relation to Mr Cox, the Crown accepts that at the time of his arrest Mr Cox had not decided whether to hand the cocaine in to the Police or return it to Mr Motuliki, he was fearful of what might happen if he adopted either course and he did not know what to do. Mr Cox accepts that he did not take the opportunity to alert the authorities about the existence of the cocaine during the six days it was in his possession, nor during the initial Police search of his workshop and that he will be criticised for his inaction in that regard.
  9. Both Defendants have no previous convictions.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown relies on the following comparable sentences:
  4. Here, the Crown’s submits the following sentencing formulation:

Presentence reports

Mr Cox

  1. Mr Cox is 72 years of age. He was born in England. He is the third of five siblings. He grew up in a religious household with a strict upbringing.
  2. After he completed high school, Mr Cox obtained a Certificate in Mechanical Engineering from the Industrial Technical College and the City of Guilds, London. Not long after, he moved to Canada. There, he worked in a technical and engineering position, met his first wife and they had a daughter. His wife later passed away and he subsequently remarried.
  3. Mr Cox first travelled to Tonga with his second wife for a holiday. They both fell in love with Vava'u where they eventually settled. In 2012, she too passed away. He later remarried Brenda.
  4. For years since settling in Vava'u, Mr Cox has been operating a mechanic business. His special expertise with Yamaha outboard motors resulted in him being hired by E.M. Jones as a Senior Technician. He also services government ministry vessels. His business has been recognised by the community and local businessmen of Vava’u. His love for and commitment to the community was endorsed by locals who were interviewed. They included Mr Napa’a, a district officer, who described Mr Cox as a person of great help to the people of Vava’u. Ms Bowe, a tourism operator, described the Defendants as good people who want nothing for the community but a better future. The Acting Prime Minister and Minister for Justice, the Hon. Samiu Vaipulu, described Mr Cox as hardworking and honest.
  5. Mr Cox suffers from a number of health conditions including lumbar spine stenosis with mild central canal stenosis, asthma and gastroesophageal reflux diseases.
  6. Mr Cox’s account of his offending to the probation officer initially presented a number of anomalies with the submissions filed by the Crown and his counsel. However, those matters have been reconciled by the parties as detailed in the offending section above.
  7. The probation officer recorded Mr Cox’s regret and remorse for “being too trustful”, that his “intentions were pure”, that he never intended to “conduct any illegal work with the illicit substances” but was “misguided” and made a poor decision not expecting the consequences of involvement in illegal activities.
  8. Attached to the presentence report was a letter of support from Mr Cox’s daughter, Teri Dodd, which I have considered.

Mrs Cox

  1. Mrs Cox is 59 years of age. She is the youngest of two children, born and raised in the United States of America. Her mother passed away two days after she was born. She described her upbringing with her father and her grandparents as “a struggle”. When she was 13, her father remarried and had two children with his second wife. On three occasions during her teens, Mrs Cox represented her country in the Junior Olympics in swimming.
  2. In 1995, Mrs Cox graduated with an Associate Degree in Medical Assistance. She was employed in a pediatrics ward for five years. At the age of 20, she married and later had two children. In 1990, she divorced. Between 1991 and 1996, she worked as a teacher. In 1993, she met another man with whom she had a child. In 1997, she retired to operate a store.
  3. On three occasions prior to 2005, Mrs Cox and her then husband visited Tonga. After marrying that year, they migrated to Tonga and settled in Vava’u. There, they established a tourism business known as Endangered Encounters Whale Watching which has continued to date. In 2008, she discovered that her then husband had mismanaged funds she had invested into the business. In 2009, they divorced.
  4. In 2011, Brenda met Ian and, in 2014, they married.
  5. Over the years, Mrs Cox’s whale watching business has been very successful and is highly regarded by the Ministries of Trade and Economic Development and Tourism in Vava’u for its high performance and compliance with regulations and policies. Since being charged, her BSP account has been “terminated”, which has impacted her and her business in many ways. As a result, she receives financial support from relatives in the United States.
  6. Mrs Cox has volunteered and contributed to various community activities such as:
  7. Mrs Cox suffers from stomach problems and sleeping disorders (which have been exacerbated since being charged) for which she is currently taking medication.
  8. The circumstances of Mrs Cox’s offending and her account to the probation officer, where different to the Crown’s initial contentions, has also been encapsulated in the above section on agreed facts relating to the offending.
  9. The probation officer similarly described Mrs Cox’s involvement as “not part of any organized crime but rather a one-off mistake and misjudgment”. Otherwise, the officer reported that Mrs Cox is considered a responsible and hardworking person in the community and in her family, who has made long term valuable contributions to the tourism industry and the Tongan economy. She too expressed remorse and regret for her actions.

Defence submissions

  1. Ms Stuart filed detailed and comprehensive submissions,[5] which may be summarised as follows.
  2. The Defendants came into possession of the cocaine not by design, but by chance. Their involvement was entirely unplanned and extremely limited. They agreed to store the cocaine only briefly and then return it to Motuliki.
  3. Even though ss 4(2)(b) of the Act deems the Defendants’ possession to be supplying, the Crown accepts that neither had any intention to sell or distribute the drugs within the Tongan community.
  4. The Defendants had no concept of the risk they were taking in agreeing to store the cocaine, they did not know its value and they had no understanding of the potential consequences. Both are deeply remorseful for what occurred, and they take full responsibility for their roles. They know they should have gone immediately to the Police rather than agree to store the drugs on another’s behalf. Their decisions to accept involvement were misplaced, foolish and highly regrettable. They are both acutely aware of the harm that drugs can bring to a community, and the serious harm of drug offending in Tonga. This offending was completely out of character for them. There is no realistic possibility that they would offend again in the future.
  5. The some 25 personal references filed in support all contained descriptions of the Defendants in the highest terms as, among other things, hardworking and honest people of integrity and kindness who have contributed immensely to Tonga and the Vava'u community in particular.
  6. In assessing the Defendants’ degrees of culpability and setting starting points, the Court will need to balance the quantity of cocaine against the intention of the defendants and their limited role.
  7. This case is ‘something of an outlier’ in that it is highly unusual for defendants to be found in possession of such large quantities of a Class A drug with no intention of supplying or otherwise dealing in it for commercial gain.
  8. Mangisi is distinguishable and unlikely to assist the Court here because the defendant there had attempted to export the drugs for commercial gain.
  9. Zhang related to offending for methamphetamine “dealing”, not possession simpliciter, such that the sentencing bands do not fit neatly with the circumstances of this case. Sentencing must achieve justice in individual cases which requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed in similar judgments.[6] A more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role ... which may result in an offender moving not only within a band ... but also between bands.[7] Judges need to be willing to set starting points in sentences beneath the stated entry points where culpability is truly low, most likely where an offender plays a lesser role in offending.[8]
  10. The New Zealand Court of Appeal has held, having regard to extensive scientific evidence, that: [9]
  11. In the more comparable case of R v Clarke [2012] NZHC 1692, the defendant was sentenced for possession for supply of 2.985 kilograms of cocaine, for which he was paid $2,000 and where he changed his mind and no longer wished to be involved in the supply operation. In assessing culpability, the Court took into account the Defendant’s actual involvement in the drug operation including his knowledge of its overall parameters, the quantity of cocaine involved and the motivation for the offending, i.e. whether it was for commercial gain. His close connection to the person responsible for the importation was noted as an aggravating factor. The court considered the Defendant’s role to have been that of a courier or custodian. A starting point of nine years’ imprisonment was adopted. Discounts were then applied for the defendant’s previous good character (10% even though he had previous convictions including one for possession of ecstasy), his health circumstances which the Court held would make a sentence of imprisonment particularly severe for him (20%) and full credit for his early guilty plea (25%).
  12. For those reasons, and upon balancing the quantities of the cocaine with the Defendants’ lack of knowledge or involvement in the importation of the drugs, and the minor role they played in storing the drugs given to them (over 6 days for Mr Cox and 4 days for Mrs Cox), the starting point here for Mr Cox should be 5½ years imprisonment and for Mrs Cox, 2 years’ imprisonment.
  13. Substantial discounts should then be applied for the Defendants’ (relatively) early guilty pleas and no prior convictions (one third), their significant contributions to the community (10%) and the impact of the proceedings on them to date including time served on remand (10%), resulting in sentences of no more than two years and seven months imprisonment for Mr Cox and 13 months imprisonment for Mrs Cox.
  14. Further discounts may be applicable to reflect Mr Cox’s age and ill-health, Mrs Cox’s depression and anxiety[10] and both Defendants’ remorse.
  15. Taking into account the circumstances of the offending, everything that has happened to the Defendants in the case to date, and that they meet the criteria in Mo’unga,[11] both sentences ought be fully suspended with any order for community service deemed necessary. Ms Stuart suggested that otherwise, in the case of Mr Cox, “a custodial sentence would very likely prematurely end his life”.

Crown’s reply submissions

  1. On 22 September 2022, the Crown filed reply submissions in respect of the presentence report and the submissions filed on behalf of the Defendants. The Crown disputed a number of aspects of the Defendants’ accounts to the probation officers and Ms Stuart’s submissions particularly in relation to culpability. As noted above, subsequent joint memoranda filed on behalf of the parties have quelled those controversies.
  2. Beyond that, the Crown maintains that the appropriate starting points and discounts for mitigation have been factored in its proposed sentencing formulation. Moreover, the Crown cautions that any fully suspended sentences would, in its view:

Starting points

  1. Ms Stuart described this case as ‘something of an outlier’. I agree. As discussed below, there are a number of features of the case, both in relation to the offending and the offenders, which take it outside the usual range of cases that have come before this Court involving possession of significant quantities of class A drugs. However, for the avoidance of doubt, I wish to emphasize at the outset that those features do not include nationality. Clause 4 of the Constitution makes plain that there is one law in Tonga, including, relevantly, for non-Tongans and Tongans.
  2. Since December 2020, the statutory maximum penalty in Tonga for possession of one gram or more of a class A drug is a fine of $1 million, life imprisonment or both. The intended increase from the previous maximum period of imprisonment of 30 years was part of Parliament’s response to the growing scourge of such drugs in the Kingdom, most commonly, methamphetamine. Prior to the recent Vava'u cases, emanating from the events described in paragraph 6 above, of which the present case is one, drug offending involving cocaine has been relatively rare before the courts.
  3. Albeit in the context of methamphetamines, the seriousness with which the courts approach class A drug offending in Tonga was amply described by Cato J in R v 'Otuhouma [2020] TOSC 100:
“... For several years now, this Court has denounced methamphetamine in the Kingdom and repeatedly said that those who chose to possess large quantities of methamphetamine do so at their peril and can expect condign punishment to follow if apprehended and convicted. Methamphetamine has the potential to do great harm to the Tongan community, in terms of addiction, and the consequent causation of collateral crimes in order to fund a habit. Unlike the experience in other countries, until the last few years, methamphetamine, was slow to gain traction but it is plain that it now, despite our condemnation of this kind of offending and the Police arresting this development, it appears to have gained a more significant presence in Tonga. There are limited remedial facilities available to address drug abuse, here and those facilities that do exist are likely to be placed under much greater pressure unless this trend is reversed.
Tonga will punish those severely who possess large amounts of methamphetamine. New Zealand cases such as Fotu [2005] NZCA 278; [2006] 2 NZLR 72(CA) and Zhang v R [2019] NZCA 507 are useful guidelines for sentencing here. ...”
  1. The comparable sentences and statements of principle relied on by the parties have included reference to decisions of the New Zealand Court of Appeal and High Court. The extent to which those decisions assist or inform the sentencing exercise to be undertaken in this case, and to serve and achieve an appropriate balance in the sentencing objectives of punishment, denunciation, protection of the community, specific and general deterrence and rehabilitation, may be expressed as follows:
  2. In my view, in determining appropriate starting points by assessing the seriousness of the offending, the Zhang bands and principles provide useful guidance in the instant case.
  3. As noted above, ss 4(2)(b) of the Act provides that possession of 0.25 grams or more of a class A drug is deemed to be supplying. Even though the Tongan Act does not contain the same carve out by the words “until the contrary is proved”, I agree, as a matter of statutory interpretation, with Ms Stuart’s submission that the presumption here may be rebutted by cogent evidence. The agreed facts stated in paragraph 11 above rebut the presumption. Accordingly, and subject to what follows, I proceed on the basis that the Defendants are to only be sentenced for possession.
  4. Even though the Defendants have been charged with, and have pleaded guilty to, possession, the evidence as agreed points to an element of possession for the purpose of supply, not by the Defendants themselves, but by their intention of returning the drugs to Motuliki. Had they done so, they would have enabled Motuliki to supply to others as he indicated to the Defendants he was looking to do. The probability that the cocaine was possessed for the purpose of supply can properly be taken into account in considering an appropriate sentence: Mafi v Rex [2004] TOCA 4 at [24].[23] Against that, however, is the fact that in most cases of possession for supply, other paraphernalia will usually be found such as dealer packs, transaction records, weighing scales, other utensils and significant quantities of cash and so on.[24] None of that was found in this case.
  5. Simple application of the bands presents something of a paradox as identified by Ms Stuart in her submissions,[25] whereby the upper end of a lower band overlaps with and provides a higher starting point than the lower end of the next highest band.[26] For instance, based on weight alone, Mr Cox would be placed at the upper end of band four, at around 14 to 15 years, yet the upper end of band three (for up to 500 grams which is less than one third of the amount he possessed) is 12 years. Similarly, the weight Mrs Cox possessed would place her within band two at about 4 to 5 years, yet the upper end of band one (less than five grams or about 6% of her amount) is four years. As indicated by the Court of Appeal in Zhang, such seeming incongruities may be satisfactorily reconciled by the flexibility required upon an assessment of individual role and degree of culpability.
  6. It is unnecessary in the instant case to assess in any detail the different indicia within the UK categories of lesser, significant or leading involvement discussed in Zhang.[27] The agreed facts clearly place both Defendants, as temporary custodians of the cocaine with no commercial involvement in it, in the category of lesser roles.
  7. That is not to say, however, that their involvement may be regarded as being at the lowest end of conceivable involvement for this type of offending. That is because they knew that what Motuliki gave them were substantial quantities of cocaine, that possession of cocaine (without lawful excuse) was unlawful and that if the cocaine got into the community, it would cause serious harm. I am ambivalent about the position stated in respect of Mr Cox to effect that he did not know what to do once he had hidden the two bricks of cocaine in his container. Without undue recourse to the often ‘deceptive illumination of hindsight’,[28] the choices before the Defendants when approached by Motuliki were clear: either refuse to have anything to do with the drugs; or, once they came into their custody, take them immediately to the police. They did neither. I do not consider that much weight can be attached to any suggestion that the Defendants found themselves in an invidious position of not wanting to get their friend into trouble but at the same time not wanting the drugs to get into the community when that position was effectively self-induced. The error of their choice was compounded by the length of time the Defendants retained the drugs and casts doubt over any suggestion that they may have intended to turn them over to the police.
  8. In the case of Mr Cox, the decisions in 'Otuhouma and Mangisi are clearly distinguishable. 'Otuhouma involved possession of just over three kilograms of methamphetamine, which Cato J regarded as an amount that was capable of being distributed by the defendant personally or on behalf of another for very considerable financial gain. His Honour also did not accept the defendant’s uncorroborated evidence that he was merely temporarily holding it for another. While Mangisi involved an amount closer to the instant case (nearly two kilograms), the defendant there was arrested at the airport trying to export the methamphetamine and he unsuccessfully defended the charge at trial. Both those decisions also pre-dated the 2020 amendments to the Act which increased the maximum penalties. Although the decisions do not contain any detailed analysis on how the starting points of 16 and 14 years respectively were set by reference to the Zhang bands or of those defendants’ comparative culpability, the increase of two years for an additional kilogram demonstrates how the sentencing discretion in drugs cases, where the primary consideration is weight, can rarely, if ever, be reduced to any linear mathematical (or sliding scale) exercise: R v Latu [2021] TOSC 81 at [26].
  9. The New Zealand decision in Clarke is instructive. It is also an example of where, despite the amount involved (almost three kilograms) falling within Zhang band five (more than two kilograms, with a range of starting points from 10 years to life), in arriving at a starting point of nine years, the Court apparently moved the defendant down to band four (less than two kilograms with starting points from 8 to 16 years) and at the lower end of that band, presumably by an assessment of his lesser role.
  10. Even though the weight in Clarke was over a kilogram more than for Mr Cox, and therefore more comparable to 'Otuhouma, a comparison of the respective roles of Clarke and Mr Cox is useful. For instance, Clarke initially agreed to be involved in the supply operation whereas Mr Cox apparently did not (although his agreement to hide the drugs for Motuliki while the latter looked into how he could sell them may be viewed as some involvement). Clarke received payment for his involvement whereas Mr Cox did not. However, Clarke recanted his involvement and sought to extricate himself from the operation whereas Mr Cox did not seek to extricate himself from the possession by surrendering the cocaine to police before being arrested and questioned about it. Like Clarke, Mr Cox knew that the person for whom he was holding the cocaine, Motuliki, had indicated an intention to try and sell it. Nonetheless, and again like Clarke, Mr Cox’s involvement was limited to that of a temporary custodian.
  11. However, it is difficult to reconcile the obvious difference between the starting points in the Tongan cases of 'Otuhouma (16 years) and Mangisi (14 years) with that in Clarke (9 years) solely on the basis of differing roles or levels of culpability. The decisions in New Zealand are invariably the product of not only differences in statutory maximum penalties but also comparable decisions in that country for similar offending which more often involve larger quantities than those experienced in Tonga to date. Insofar as the starting points in ‘Otuhouma and Mangisi reflect the Tongan context for comparatively large quantities of a class A drug, they may be understood by the arguably greater vulnerability of the much smaller population with far fewer resources in terms of policing and medical capacity to deal with the often-widespread effects of drug addiction. So too therefore must the starting points in this case be informed, but not determined, by those cases having regard to the distinct differences in roles and culpability between them and the present.
  12. In my view, the starting point submitted by the Crown (13 ½ years) fails to reflect the flexibility discussed in Zhang or adequately allow for the differences in role and culpability between Mangisi and Mr Cox. On the other hand, the starting point submitted by Ms Stuart (5 ½ years), in my view, allows too much and is not supported by Clarke or any Tongan comparable sentence for weights of this kind.
  13. Similarly, in the case of Mrs Cox, the decision in Tatakamotonga, which involved an amount of about 10 per cent more and where Cooper J set a starting point of seven years, is also distinguishable on account of the extensive and clear evidence of that defendant being in possession for the purpose of supply, as well as his previous convictions and very late plea. For that reason, it does not support the Crown’s suggested starting point here of six years. However, the starting point submitted by Ms Stuart (2 years) is not supported by any comparable sentence and, in my view, falls far short of the appropriate range in Tonga for the relevant weight, even for lesser role offending.
  14. I pause to note that given his involvement as a principal actor in this case, it would have been useful to compare the ranges under consideration here with any sentence imposed on Mr Motuliki. However, following his recent change of plea, Mr Motuliki, along with a number of others from the Vava'u cocaine cases, is currently awaiting sentence.
  15. Taking all the above matters into consideration – the relevant statutory provisions, agreed facts, the seriousness of the offending marked by the amounts of cocaine and the Defendants’ respective roles or levels of culpability, the comparable sentences and principles discussed in the authorities cited and the requisite sentencing objectives - I consider the appropriate starting points to be 10 years imprisonment for Mr Cox and 4 years for Mrs Cox.

Mitigation

  1. In Vea v Rex [2004] TOCA 7, the Tongan Court of Appeal noted, with apparent approval, the position then stated by its New Zealand counterpart, on numerous occasions, that “personal circumstances are generally irrelevant when sentencing for drug offending”. The apparent tension between that approach and the Court of Appeal’s statement in Rex v Misinale [1999] TOCA 12, albeit in the context of suspension, that relevant considerations included “... the personal circumstances of the offender or those dependent on him or her" has been considered in R v Wolfgramm [2020] TOSC 78 and R v Moala [2021] TOSC 86.
  2. However, recently, in Sosefo Moala v R,[29] the Court of Appeal noted that the approach endorsed in Vea was revisited by the New Zealand Court of Appeal in Zhang. The Tongan Court observed that:
“... While the personal circumstances of the offender must be subordinated to the interests of deterrence, this does not imply excluding a consideration of personal mitigating circumstances relating to the offender.[30] ....”
  1. Further, in Zhang,[31] the Court of Appeal noted that at stage two of the sentencing exercise, personal mitigating circumstances relating to the offender are applicable to all instances of Class A drug offending, as in the case of any other offending.[32] The Court also noted the New Zealand Supreme Court’s observation in R v Jarden [2008] NZSC 69; [2008] 3 NZLR 612 that the personal circumstances of an offender may be relevant either because they contribute in some way to the offending, or on purely compassionate grounds. I respectfully adopt that approach here.
  2. In the case of Mr Cox, I consider it appropriate to reduce his starting point by one third on account of his early guilty plea, remorse and lack of previous convictions. I also consider it appropriate to reduce his sentence by one year for his contributions to the community and a further year off on account of his advanced age and ill health which will render any time served in prison far more onerous. The assertion by Ms Stuart that a custodial sentence would very likely prematurely end Mr Cox’s life was not supported by any medical evidence.
  3. Those discounts in mitigation result in a sentence for Mr Cox of five years imprisonment.
  4. Similarly, in the case of Mrs Cox, I consider it appropriate to reduce her starting point by a total of half, comprising one third for her guilty plea, remorse and lack of previous convictions, and the balance on account of her contributions to the community and her health issues.
  5. Those discounts in mitigation result in a sentence for Mrs Cox of two years imprisonment.
  6. I do not consider that any further discounts should be allowed for the impact of the proceedings on the Defendants to date including time served on remand. To do so would impermissibly distinguish and favour them from other defendants who endure similar experiences once involved in the Tongan criminal justice system. Those experiences are also largely the result of the Defendants’ unfortunate decision to engage in criminal activity. Time spent on remand will be credited in the result.

Suspension

  1. In considering whether to suspend all or part of the sentences, the Court is obliged to have regard to the interests of the Defendants and the interests of the wider community in their rehabilitation: Rex v Tau'alupe [ 2018] TOCA 3 at [15].
  2. It is common ground that, in both cases, the considerations for suspension as discussed in Mo’unga v R [1998] Tonga LR 154 favour suspension. While neither Defendant is young, they both have good previous records. Despite the gravity of the offending, there is some diminution in culpability as discussed above. Both cooperated with the authorities. To the extent that it is necessary, given the entirely out of character nature of their offending, I have no doubt that the Defendants are likely to take the opportunity offered by any suspension of their sentences to rehabilitate themselves.
  3. Section 24(3)(a) of the Criminal Offences Act limits the period of any suspension to three years. While Mrs Cox’s sentence falls within that period, I consider that in her case, as is necessarily the case with Mr Cox’s sentence, only partial suspension should be allowed to ensure that the sentencing objectives referred to above, including, in particular, effective (general) deterrence (as discussed in Misinale) are adequately served. Full suspension would result in a sentence which would be manifestly inadequate and wholly inconsistent with others involving substantial amounts of a class A drug. As it stands, by reason of the Defendants’ peculiarly low level of involvement and culpability, the resulting sentences here are very much at the lower end of the available ranges for offending of this kind and degree in Tonga. Notwithstanding, I propose to allow what I consider to be the maximum suspension reasonably available in all the circumstances.

Result

  1. Ian Cox is convicted of possession of cocaine and is sentenced to five years imprisonment.
  2. The final three years of that sentence is to be suspended for three years from the date of his release from prison on condition that during the said period of suspension he is to:
  3. Brenda Cox is convicted of possession of cocaine and is sentenced to two years imprisonment.
  4. The final 15 months of that sentence is to be suspended for a period of two years from the date of her release from prison on condition that during the said period of suspension, she is to:
  5. Failure to comply with any of the above conditions may result in the suspensions being rescinded in which case the defaulting Defendant will be required to serve the balance of his or her sentence.
  6. In the result, and subject to compliance with the said conditions and any remissions available under the Prisons Act, Mr Cox will be required to serve two years and Mrs Cox will be required to serve 9 months in prison.
  7. Both Defendants are also to be given credit for the 31 days served whilst remanded in custody.
  8. I further direct that both Defendants are to receive all reasonably necessary and available medical treatment during their incarceration.
  9. Pursuant to s. 32 of the Act, I order that the drugs the subject of these proceedings be destroyed.

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

[1] With Mr Cox also then being charged with possession of utensils and ammunition without a licence.
[2] Cox v R [2021] TOCA 23
[3] AC 4 of 2022.
[4] Joint memoranda dated 22 July 2022; Crown’s response to pre-sentence report and defence submissions dated 22 September 2022 and further joint memorandum of counsel dated 5 October 2022 and 7 October 2022.
[5] To be read in conjunction with the joint memoranda which have been filed since.
[6] Zhang at [10(a)].
[7] Zhang at [10(b) and (d)].
[8] Zhang at [10(i)].
[9] Cavallo & Ors v R [2022] NZCA 276 at [62].
[10] Medical certificates in respect of both Defendants verifying their respective conditions were filed with the personal character references.
[11] Mo’unga v R [1998] Tonga LR 154 at 157.
[12] Cited in Zhang at [120].
[13] In which parties beyond the appellants and the Crown participated.
[14] For a recent example, see Gray v R [2020] NZCA 548.
[15] See Cossey v R [2021] NZCA 677.
[16] Zhang at [104], [106]–[117] and [126]–[128] as referred to in Cavallo v R [2022] NZCA 276 at [10].
[17] Meaning sentences which reflect the culpability of the offending but before allowance is made for aggravating and mitigating circumstances that are personal to the offender.
[18] R v Fatu [2006] 2 NZLR 72 (CA).
[19] Zhang at [118].
[20] Zhang at [10(i)].
[21] Cavallo v R [2022] NZCA 276.
[22] At [63].
[23] Referred to recently in R v Paletu'a [2021] TOSC 49.
[24] For example, see R v Tatakamotonga [2021] TOSC 132, as referred to by the Crown above.
[25] [124]
[26] For example, in band three, if 499 grams were to attract a starting point of 12 years, how could 500 grams within band four attract a starting point of 8 years?
[27] [126]
[28] Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [2000] TOCA 3.
[29] AC 20 of 2021, 25 May 2022 at [16].
[30] Zhang at [130] – [136].
[31] [131]
[32] [10(j)]

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