PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2023 >> [2023] TOSC 41

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v Siulangapo [2023] TOSC 41; CR 63 of 2023 (28 July 2023)

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


CR 63 of 2023


REX
-v-
NELSON SIULANGAPO


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Fifita for the Prosecution
The Accused in person
Date: 28 July 2023


The charges

  1. On 9 June 2023, the Defendant pleaded guilty to:

[1] possession of 123.50 grams of methamphetamine, contrary to ss 4(1)(a)(iv) of the Illicit Drugs Control Act;

[2] possession of 3.65 grams of cannabis, contrary to ss 4(1)(a)(i) of the Illicit Drugs Control Act;

[3] possession of utensils, contrary to s 5A of the Illicit Drugs Control Act;

[4] possession of an unlicensed .22 rifle, contrary to ss 4(1) and (2)(b) of the Arms and Ammunition Act; and

[5] possession of unlicensed ammunition, contrary to ss 4(1) and (2)(b) of the Arms and Ammunition Act.

The offending

  1. On 10 January 2023, Police received information that the Defendant was selling drugs from his vehicle. He was stopped while driving from Pelehake to Holonga. He volunteered to police that there was cannabis and methamphetamine in a bag on the front seat of his vehicle which belonged to him. The bag was searched and found to contain various packs of methamphetamine and cannabis, empty packs, a straw, lighters and a substantial quantity of cash. During their search of various compartments within the vehicle, police found more methamphetamine and cannabis, three mobile phones, test tubes, a set of weighing scales, empty packs of various sizes, two passports in the name of the Defendant and a number of .22 calibre bullets. The Defendant admitted that all the drugs and utensils were his and that he used the test tube for smoking methamphetamine. On the back seat of the vehicle, police found a .22 rifle with a fully loaded magazine of 15 rounds, and a packet in a compartment beside the steering wheel containing 51 rounds of 9 mm ammunition and 5 rounds of .38 calibre ammunition. The Defendant admitted that the rifle and ammunition belonged to him and that he did not have a licence for them.
  2. The police then searched the Defendant’s residence where they found more cannabis, methamphetamine, empty packs, ammunition, broken test tubes and another weighing scale. The Defendant admitted to owning all those items.
  3. In total, police seized 123.50 grams of methamphetamine, 3.65 grams of cannabis, TOP$5,920 and NZD$5.
  4. After the search, the Defendant did not co-operate further when interviewed.

Previous convictions

  1. The Defendant has previous convictions in 2009 for common assault, for which he was fined, and indecent assault, for which he was sentenced to 9 months imprisonment, fully suspended for 3 years.

Prosecution’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that the only mitigating factors are the Defendant’s cooperation with the Police during the search of his vehicle and residence and his early guilty plea.
  3. The Crown refers to the following comparable sentences:
  4. The Crown submits the following as an appropriate sentencing formulation:

Presentence report

  1. The Defendant is 35 years of age. He is the sixth of ten siblings. His parents earned a very modest income from his father’s work as a farmer and his mother selling handcrafts. He dropped out of high school because he felt it was better to stay at home and help his father on the plantation. The Defendant promised himself that when he had children, they would not grow up poor like he did and that he would provide ‘a decent life’ for them. He described his occupation to the probation officer as a self-employed farmer.
  2. The Defendant is married with three children aged 9 to 13 years. The family resides at Tatakamotonga. His wife is a teacher at a government school. She described her husband as a loving father and a very loyal husband. She said she did not know of his involvement in illicit drugs and suggested that he must have been influenced by people with whom he socializes but she has never met.
  3. In relation to the instant offending, the Defendant told the probation officer he did not want to talk about it. However, he did state that he had been dealing in illicit drugs for “a few months”.
  4. The Defendant’s former Town Officer (now a Hahake District Officer) described the Defendant as an introvert who rarely caused problems in the neighborhood. Contrary to the Defendant’s account, the current Town Officer said that the Defendant had been observed for a long time by neighbours complaining about too many vehicles queuing at the Defendant’s house late at night. The community rumours and suspicions about him distributing drugs have all turned out to be true.
  5. The Defendant expressed to the probation officer his deep regret and hopes for a chance to rebuild his life, including avoiding prison because he cares for his family and elderly parents.
  6. The probation officer assessed the Defendant as a “high risk” to the community. Further, the Defendant is a repeat offender who failed to faithfully carry out his role as a father in a ‘rightful manner’. While he professed remorse, he hardly spoke about the offending. Time in prison will provide the Defendant with more opportunities to reflect on his responsibilities as a father and husband, and disconnect him from drug use and dealing, and his negative associates.
  7. The probation officer recommends a partly suspended sentence on conditions including completion of a Salvation Army drugs awareness course.
  8. On 27 July 2023, a letter was filed through the probation office from Mele Prescott, Program Manager, at the Salvation Army Alcohol and Drugs Awareness Centre. In it, Ms Prescott referred to the Defendant currently attending their psycho-educational program and being very committed to it and eager to learn. Ms Prescott also opined that the Defendant “has characteristics that are of great value to those around him, especially his friends and family” and that there had been improvement in his behaviour.

Starting points

  1. The statutory maximum penalties for the subject offences are:
  2. In R v Maile [2019] TOCA 17 at [18], the Court of Appeal held that those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences. To illustrate, the Court cited R v Ngaue (unreported, Supreme Court, CV 6 of 2018, 2 August 2018) at [5] and [6], where Cato J observed:
“This judgment will serve as a warning to those who engage in Tonga with the drug methamphetamine, whether it be for possession only of small amounts or larger amounts, trafficking or supplying it to others, manufacturing, importing, exporting or dealing, in any way, with this extremely dangerous and addictive drug that the courts will sentence offenders to severe punishment. Even for possession of small amounts, offenders can expect to be sentenced to terms of imprisonment.
Methamphetamine is a scourge and has effected a great deal of harm and misery on society in countries such as Australia and New Zealand where it has become prevalent in the last couple of decades. It is highly addictive for users, is mind altering and is often accompanied by acts of serious violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for the user to fund the acquisition of the drug. Significant markets are to be found for those who choose to manufacture or import the drug and large profits can be made by criminals who choose to engage in such activity. The courts have responded by imposing very significant penalties on those who engage in this kind of activity.”
  1. Here, the head count is count 1, possession of 123 grams of methamphetamine. As noted by the Prosecution, the guidelines in Zhang v R [2019] NZCA 507 place this offence within band 2, up to 250 grams, suggesting a starting point of between 2 and 9 years. By weight alone, the offending would appear to fall within the middle of that range.
  2. However, as discussed recently in R v Cox [2022] TOSC 90,[2] the task of identifying where, within that range, the instant offending falls, requires consideration not only of the quantity of the drug involved (as a proxy for individual and collective social harm), but also the role played by the Defendant in the offending (whether “lesser”, “significant” or “leading”). “The role played by the offender is an important consideration in fixing culpability and thus the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess [in a holistic manner] the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending”.[3]
  3. In that regard, the Defendant here is clearly a drug dealer. Pursuant to ss 4(2)(b) of the Illicit Drugs Control Act, any person in possession of 0.25 grams or more of a Class A drug is deemed to be supplying that drug. Further, and unlike in Cox, the presence of the other drug related paraphernalia and the loaded firearm in the Defendant’s vehicle are all consistent with him actually being involved in the supply of illicit drugs. For offending involving deemed supply or possession for the purpose of supply, a more condign sentence is warranted: Attorney General v Leka [2021] TOCA 13; Attorney General v Fua'eiki [2021] TOCA 20. I therefore consider the Defendant’s role or level of culpability to be between significant and leading, so that his offending should be placed further up the range within Zhang band 2.
  4. It is also to be noted, that any resulting sentence from the starting point ranges suggested in Zhang, which were set in the context of the New Zealand statutory maximum penalties, must be adjusted to reflect the somewhat more severe Tongan statutory maximum penalties for Class A drug offences.
  5. In Tatakamotonga,[4] the Defendant confessed during his evidence at trial that the 99.47 grams of methamphetamine “had been given them and that was for him to sell”. He had been deported from the United States, after his arrival there in 2003, for inter alia, “Dangerous Drugs”. There was no other mention of any criminal convictions (for drugs or otherwise) in Tonga since his return. Cooper J set a starting point of 7 years imprisonment. In Moala, for 139.3 grams of methamphetamine, a starting point was set of 8 years’ imprisonment. The plethora of other drug offences to which Moala pleaded guilty and his long criminal history also placed him within the category of a drug dealer.
  6. For those reasons, I set a starting point for count 1 of 7½ years (or 90 months).
  7. For the remaining counts, I set the following starting points for terms of imprisonment:

Mitigation

  1. For the Defendant’s early guilty pleas and lack of any previous drug related convictions, I reduce those starting points to the following sentences: count 1 – 5 years and 3 months (63 months); count 2 – 2 months; count 3 – 12 months; count 4 – 20 months; and count 5 – 20 months.
  2. The sentences for counts 2 to 5 are to be served concurrently with the sentence for count 1.

Suspension

  1. The considerations discussed in Mo’unga v R [1998] Tonga LR 154 favour some suspension of the sentence. At 34 years of age, the Defendant is not particularly young. He has previous criminal convictions, but they are over 10 years old and not for drugs. Despite his election to remain silent when interviewed (in accordance with his legal rights), the Defendant did admit his offending to police during their search and he pleaded guilty upon arraignment to the charges. There was clearly significant premeditation to the offending, including having a loaded firearm in his vehicle. There is no evidence of any diminution in culpability.
  2. I am ambivalent about the Defendant’s expressions of remorse. Given the circumstances in which they were conveyed to the probation officer, I tend to the view that the Defendant is more sorry for himself about getting caught and now having to face the consequences of his criminal actions than he is for the harm he has done to others in supplying or arranging to supply highly addictive methamphetamines and other drugs to them.
  3. For the reasons explained on numerous occasions since Rex v Motulalo [2000] Tonga LR 311, including recently in R v Fonokalafi [2022] TOSC 92 at [38], little if any weight can be placed on the so-called “breadwinner plea” in cases such as the present. It may be accepted that, as a result of the Defendant going to prison, his family will suffer. “That unfortunately is an all too frequent consequence of criminal offending”: Motulalo, ibid, at 314.
  4. However, the support of his wife and his apparent commitment to his three young children, together with his initiative of attending the Salvation Army drugs program to date and positive changes reported from that, provide good grounds for optimism that the Defendant is likely to take the opportunity afforded by suspension for reform. I am prepared to offer him that opportunity.

Result

  1. The Defendant is convicted of the following offences and sentenced to the following terms of imprisonment:
  2. The sentences for counts 2 to 5 are to be served concurrently with the sentence for count 1.
  3. The final 15 months of the sentence are to be suspended for a period of 2 years from the date the Defendant is released from prison on condition that during the said period, he is to:
  4. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his sentence.
  5. Subject to compliance with the said conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 4 years in prison.
  6. Pursuant to:

NUKU’ALOFA
M. H. Whitten KC
28 July 2023
LORD CHIEF JUSTICE

[1] Zhang v R [2019] NZCA 507

[2] [55]

[3] [55.5]

[4] [2021] TOSC 132

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2023/41.html