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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
- 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
- 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.
- 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.
- In total, police seized 123.50 grams of methamphetamine, 3.65 grams of cannabis, TOP$5,920 and NZD$5.
- After the search, the Defendant did not co-operate further when interviewed.
Previous convictions
- 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
- The Crown submits the following as aggravating features of the offending:
- (a) the substantial amount of methamphetamine;
- (b) pursuant to ss 4(2)(b), the Defendant is therefore deemed to have been supplying the drugs, which is consistent with the evidence
of where they were found, how they were stored and the utensils and cash;
- (c) when arrested, the Defendant was armed with a loaded firearm;
- (d) the other ammunition was for larger calibre which are not licensed in Tonga.
- 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.
- The Crown refers to the following comparable sentences:
- (a) Viliami Mangisi (CR 10/18) - The Defendant was convicted of possession of 1,969.14 grams of methamphetamine and attempted export of illicit drugs. He was sentenced,
with reference made to the Zhang guidelines,[1] to 12 ½ years' imprisonment for the possession charge and 5 years for the attempted export, to be served concurrently.
- (b) Misivina Tatakamotonga (CR 142/20) – At the close of the Crown’s case at trial, the Defendant, who had a drug conviction, pleaded guilty to possession of
99.47 grams of methamphetamine and 3.79 grams of cannabis. He was sentenced for the methamphetamine to 7 years 8 months imprisonment,
with the final 6 months suspended for two years on conditions. For the cannabis, he was sentenced concurrently to 12 months imprisonment.
- (c) Sosefo Langi Moala (AC 20/2021; CR 236/2020 & CR 80, 81, 87/2021) – At the start of his trial, the Defendant pleaded guilty to numerous drug-related offences including possession of 139.3 grams of methamphetamine
and 4.06 grams of cannabis. He had an extensive criminal history including for drugs. For the methamphetamine, a starting point was
set of 8 years imprisonment, which was reduced for mitigation to 7 years. For the cannabis, he was sentenced to 2 months imprisonment.
Taking into consideration the other offending and the totality principle, a final sentence of 8 years imprisonment was imposed,
without suspension. The Defendant appealed against the lack of suspension. The Court of Appeal admitted fresh evidence in the form
of medical reports which were not before the sentencing judge. On that basis, the Court of Appeal suspended the final 12 months
for 1 year.
- (d) Sifitani Afu (CR 6,56,117/2021) - The Defendant pleaded guilty to several drug offences including possession of 2.93 grams of cannabis, for which he was sentenced to
2 months imprisonment to be served consecutively with the head count.
- (e) ‘Emeline Haisila (CR 22/2022) - The Defendant pleaded guilty at arraignment to possession of drugs and utensils, including 766 empty dealer packs, a test tube containing
fragments of methamphetamine, notebooks of suspected records of drug purchases and supplies, two weighing scales, two straws and
$150. For the utensils, a starting point of 12 months imprisonment was set.
- (f) Siosifa Vakapuna (CR 133/2018) - The Defendant pleaded guilty to possession of drugs and firearms and ammunition without a licence. By reason of
the the Defendant’s criminal history and the unlicensed arms and ammunitions, Paulsen LCJ increased the starting point for
the drugs from 2 to 3 years imprisonment. After mitigation, the Defendant was sentenced to 21 months for the drugs, 18 months for
the firearm and 6 months for the ammunition, to be served concurrently with the head sentence. Due to the Defendant’s personal
circumstances and the Crown’s submission, his Honour fully suspended the sentence for 2 years on conditions including 100 hours
of community work.
- The Crown submits the following as an appropriate sentencing formulation:
- (a) based on the Zhang guidelines for Class A drugs, the head count, count 1, falls within band 2 (between 5 and 250 grams) which indicates a sentence between
2 and 9 years imprisonment;
- (b) given the seriousness of the offending marked by the substantial amount of methamphetamine, the comparable sentences, the deeming
effect of ss 4(2), the Defendant’s previous convictions, and being armed when arrested, the appropriate starting point for
count 1 is 8 years imprisonment;
- (c) for the Defendant’s early guilty pleas, his lack of previous drug offending convictions, and his limited cooperation with
Police (albeit), the starting point should be reduced by 2 years, resulting in a head sentence of 6 years;
- (d) for the other counts, sentences of:
- (i) count 2 - 2 months;
- (ii) count 3 - 9 months;
- (iii) count 4 - 18 months;
- (iv) count 5 - 6 months imprisonment;
- (e) as the offending all arose out of the same facts and on the same date, the sentences for counts 2 to 5 should be concurrent with
count 1; and
- (f) the final 12 months suspended for 3 years on the usual conditions.
Presentence report
- 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.
- 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.
- 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”.
- 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.
- 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.
- 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.
- The probation officer recommends a partly suspended sentence on conditions including completion of a Salvation Army drugs awareness
course.
- 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
- The statutory maximum penalties for the subject offences are:
- (a) possession of 1 gram or more of a Class A illicit drug such as methamphetamine - a $1,000,000 fine, life imprisonment, or both;
- (b) possession of less than 28 grams of a Class B drug such as cannabis - a $5,000 fine, 1 year imprisonment, or both;
- (c) possession of utensils - a $10,000 fine, 3 years imprisonment, or both; and
- (d) possession of unlicensed firearms or ammunition - 5 years imprisonment.
- 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.”
- 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.
- 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]
- 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.
- 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.
- 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.
- For those reasons, I set a starting point for count 1 of 7½ years (or 90 months).
- For the remaining counts, I set the following starting points for terms of imprisonment:
- (a) count 2 - possession of 3.65 grams of cannabis – 3 months;
- (b) count 3 - possession of utensils – 18 months;
- (c) count 4 - possession of an unlicensed (and loaded) rifle – 2 ½ years (30 months); and
- (d) count 5 - possession of unlicensed ammunition - 2 ½ years (30 months).
Mitigation
- 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.
- The sentences for counts 2 to 5 are to be served concurrently with the sentence for count 1.
Suspension
- 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.
- 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.
- 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.
- 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
- The Defendant is convicted of the following offences and sentenced to the following terms of imprisonment:
- (a) count 1 – possession of methamphetamine - 5 years and 3 months (63 months);
- (b) count 2 - possession of 3.65 grams of cannabis – 2 months;
- (c) count 3 - possession of utensils – 12 months;
- (d) count 4 - possession of an unlicensed rifle – 20 months; and
- (e) count 5 - possession of unlicensed ammunition - 20 months.
- The sentences for counts 2 to 5 are to be served concurrently with the sentence for count 1.
- 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:
- (a) not commit any offence punishable by imprisonment;
- (b) be placed on probation;
- (c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer;
and
- (d) complete a course in drugs awareness as directed by his probation officer.
- 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.
- 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.
- Pursuant to:
- (a) ss 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils the subject of these proceedings are to be destroyed;
- (b) s 33 of the Illicit Drugs Control Act, the cash seized is to be forfeited to the Crown;
- (c) s 37 of the Arms and Ammunition Act, the firearm and ammunition seized are forfeited to Tonga Police.
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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
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