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R v Tatafu [2022] TOSC 91; CR 2 of 2022 (21 October 2022)

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


CR 2 of 2022


REX
-v-
‘OKUSITINO PENISIMANI TATAFU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs E. Lui for the Prosecution
Mr S. Tu’utafaiva for the Defendant
Date: 21 October 2022


The charge

  1. On 19 April 2022, the Defendant pleaded not guilty to possession of 249.74 grams of cocaine, contrary to ss 4(1)(a)(iv) of the Illicit Drugs Control Act. His trial before a judge and jury commenced on 29 August 2022. On 2 September 2022, the jury found the Defendant guilty of the charge.

The offending

  1. On 14 November 2021, Police received information that the Defendant was carrying cocaine which he intended to sell to a person staying at the Puataukanave Hotel in Vava'u. Members of the Drugs Enforcement Taskforce went to the hotel and set up position in the room in which the informer said the buyer was staying. When the Defendant entered the room, he was detained and searched. The bag of cocaine was found inside a pocket of his tupenu. When he was later interviewed, the Defendant chose to remain silent.
  2. During the trial, the Defendant gave evidence. He said that a couple of days before, he met up with a long-term friend who had travelled from Tongatapu to Vava'u with money to buy cocaine. The friend asked the Defendant to try and buy cocaine. The Defendant said that he had never seen cocaine before but that he might be able to get some from others whom he suspected had it. The next day, the friend gave the Defendant TOP$10,000 and asked him to go and buy a kilogram of cocaine with it. The Defendant put the money in the glove box of his vehicle. However, he denied ever trying to buy cocaine with it. He told his friend that he had not been able to find anyone selling cocaine. Later, when the friend told him that “the boss” wanted the money back, the Defendant said he returned it.
  3. According to the Defendant, the reason he went to the hotel on the day in question was because his friend asked him to take food for a man who had travelled by boat from a small island. The friend called the Defendant later with the room number where “the boss” was staying. He instructed the Defendant that when he got to the room, he was to knock three times so that the boss would be aware that it was the Defendant coming on behalf of the friend.
  4. The Defendant denied having the cocaine on him when he entered the room. Inferentially, and as a matter of logic, he insinuated that during the search of his person, the police planted the drugs in his tupenu. Such an allegation was never put to any relevant Crown witness. By their verdict, the jury clearly did not accept the Defendant's account.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that the only mitigating features are that:
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentencing formulation:

Presentence report

  1. The Defendant is 50 years of age. He is the fourth of seven children. He left high school at Form 4. His family’s financial condition was unstable. His father worked as a construction contractor but spent most his income on extra marital affairs leaving the Defendant to provide for his mother and siblings. Since then, his siblings have assisted the Defendant financially in appreciation for his sacrifice to support them. Prior to this offending, the Defendant conducted a construction contracting business.
  2. The Defendant claims that he has been married three times. His first wife left him for another man. His second wife is currently residing at their home at Ta’anea with their two young children. She told the probation officer that the Defendant left her for another woman (the third wife). The Defendant moved to his first cousin’s home together with his third wife and three children and they now live with his father-in-law who is a Reverend in the Church of Tonga. The Defendant’s current ‘wife’ described him as a very good father and husband. She hopes that he will be given another opportunity for he is the breadwinner of the family, and upon whom, she and her children depend for moral and financial support.
  3. Mr Sione Vatikani is the town officer for Ta’anea. He described how the majority of that community was shocked when the charge against the Defendant was made public. He said that the Defendant was a former town officer and a trusted member of the community who was always keen to participate in community social activities. The Defendant is also an active member of the LDS church. The officer added though that workers employed by the Defendant are rumored to be drug users.
  4. During his interview with the probation officer, the Defendant maintained his innocence, denied the offending and showed no remorse. He insisted that he does not use or possess drugs, nor did he have any intention of commercially supplying them because he is financially stable and content with what he has. He claimed that he had been ‘set up’ and was deprived the opportunity to explain ‘what really occurred’. Despite all that, the Defendant asks for the court’s mercy.
  5. During her interview, the Defendant’s second wife explained that one time when she asked the third wife (or ‘mistress’ as she called her) to leave her husband alone, the mistress asked the wife if she knew that her husband was using drugs and because of that, he would not leave the mistress. The wife said that that was the last straw and it encouraged her to leave the Defendant for the sake of their children.

Defence submissions

  1. On 2 September 2022, directions were issued which included for the filing of submissions on sentence by 30 September 2022. As at the preparation of these remarks, Mr Tu'utafaiva had not done so.[3]

Starting point

  1. The statutory maximum penalty for possession of cocaine, a Class A drug, is a fine of $1 million, life imprisonment or both.[4] As the amount here was more than 0.25 grams, the Defendant is also deemed to have been supplying it.[5]
  2. The seriousness with which the courts approach significant 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 significant amount here places the offending at the very top of Zhang band two (less than 250 grams) indicating a starting point between two and nine years. In my view, and based on the evidence at trial, which was evidently accepted by the jury, including the Defendant’s own admission to agreeing to help his friend with drug dealing, the Defendant’s role and culpability also place the offending at the top of that range. Even though the Act deems the Defendant to have been supplying the drug, in actual fact, this was a clear case of possession for the purpose of supply. Had the police waited a little longer after the Defendant entered the hotel room, I have little doubt he would have been charged with actual supply. In either case, a more condign sentence than for possession simpliciter is warranted: Attorney General v Leka [2021] TOCA 13; Attorney General v Fua'eiki [2021] TOCA 20.
  2. That the Defendant committed this offence while on bail for other drug related charges is yet another aggravating factor.
  3. 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.[6] 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.
  4. In the above comparable sentences of Tatakamotonga and Moala, both defendants had extensive criminal histories which was relevant in assessing the seriousness of their offending. The Defendant here does not. Both head offences there involved (the slightly more harmful) methamphetamine. However, the amounts in both those cases were substantially less than the instant case.
  5. Having regard to the seriousness of the offending, and the matters referred to above, I consider the appropriate starting point to be 8 ½ years imprisonment.

Mitigation

  1. Even though the Defendant is not entitled to any discount on account of his plea, the fact that his only previous conviction was in 2000, and for violence, does warrant, in my view, a small discount of 10 months, resulting in a sentence of 7 years and 8 months (or 92 months) imprisonment.

Suspension

  1. The Defendant’s relatively good record also qualifies him for some suspension of the sentence. Against that, however, none of the other considerations in Mo’unga v R [1998] Tonga LR 154 is favourable. He is not young, there is no aspect of the clearly premeditated offending that points to any diminution of culpability, he did not cooperate with the authorities and he feels no remorse.
  2. The last and overarching of the Mo’unga factors is whether the Defendant is likely to take the opportunity offered by a partly suspended sentence to rehabilitate himself. I am ambivalent about the Defendant’s prospects of rehabilitation while he refuses to accept responsibility for his actions. His assertions to the probation officer, including that he was ‘deprived the opportunity to explain what really occurred’ must be roundly rejected. He elected to give evidence at trial, during which, he was afforded a full opportunity to present his case. In the face of the relatively unchallenged Prosecution evidence, and the Defendant’s prevarication in accusing the police of impropriety (for which there was no independent evidence in any event), his story became fanciful and the jury was fully entitled to reject it.
  3. The Crown, however, submitted that the Defendant is likely to respond to a suspended sentence by reference to the decision in Moala, ibid, where the Court of Appeal stated:
“... a period of suspension will not materially detract from the severity of the sentence. We do not see a period of suspension as compromising the needs of deterrence, denunciation, accountability, and public protection.”
  1. Since Misinale [1999] TOCA 12, the Court of Appeal has also instructed that the Mo’unga factors are not the only considerations and that others may include “... the personal circumstances of the offender or those dependent on him ...”. Here, the Defendant has let down two spouses and five children. While the ‘breadwinner plea’ has been eschewed by the courts as rarely ever being a reason, on its own, for suspending a sentence,[7] I am of the view that the obvious effects on the Defendant’s families and the other factors discussed above warrant some suspension.

Result

  1. The Defendant is convicted of possession of cocaine and is sentenced to 7 years and 8 months (or 92 months) imprisonment.
  2. The sentence is to be backdated to 2 September 2022 when the Defendant was remanded in custody.
  3. The final 20 months of the sentence is to be suspended for a period of 2 years from the Defendant’s release from prison on condition that during the said period of suspension, he is to:
  4. Failure to comply with any of the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
  5. Subject to compliance with those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 6 years in prison.
  6. Pursuant to s. 32 of the Act, the drugs the subject of these proceedings are to be destroyed.

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

[1] CR 554, 555/1998.
[2] Referring to the Court of Appeal decision in Sosefo Moala v R (AC 20/21, 25 May 2022).
[3] Nor, if it were the case, filing any notice of ceasing to act.
[4] Ss 4(1)(a)(iv) of the Act.
[5] Ss 4(2)(b) of the act
[6] At [63].
[7] As explained recently in Police v De Feng Mo [2022] TOSC 81.

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