PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2023 >> [2023] TOSC 50

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

R v Moala [2023] TOSC 50; CR 44 of 2023 (21 September 2023)

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


CR 44 OF 2023


REX
-v-
PAULA KENI MOALA


SENTENCING REMARKS


BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr J. Lutui for the Prosecution
The Defendant for himself
Date: 21 September, 2023


The charges

  1. On 7 July 2023, the Defendant pleaded guilty to one count of possession of an illicit drug, being 28.66 grams of methamphetamine contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act, one count of possession of utensils, contrary to section 5A of the said Act, and one count of possession of an illicit drug, being 3.81 grams of cannabis, contrary to section 4(1)(a)(i) of the above-mentioned Act.

The offending

  1. On 24 November 2022, Police received reliable information that the Defendant Paula Keni Moala, a 52-year-old male from Tokomololo, was driving around in his vehicle C37641, selling illicit drugs in the Nuku’alofa area.
  2. The Police acted on the information and divided themselves into three teams and made their way to the suspected area in three different vehicles. They found the Defendant’s vehicle parked on the roadside at Popua in front of one, Pita Talanoa’s residence. The Defendant was inside.
  3. Police surrounded the Defendant’s vehicle and informed him who they were and why they were there. The Defendant was removed from his vehicle and detained.
  4. The Defendant was informed that his vehicle will be searched pursuant to sections 12 and 13 of the Illicit Drugs Control Act. The Defendant did not object.
  5. Two boxes were discovered on the driver’s door. One contained 1 packet of suspected methamphetamine (exhibit 1) and the other contained 1 test tube with traces of suspected methamphetamine (exhibit 2).
  6. Police also pulled over the Defendant’s wife, who was driving vehicle R2226. When searched by Police, nothing illegal was found. In order to conduct a thorough search of the vehicle, she was escorted back to the Central Police Station.
  7. Upon arrival at the Central Police Station, the search of the Defendant’s vehicle uncovered the following;
(ii) A black and grey striped bag (exhibit 4) containing –
(iii) 1 plastic bag containing empty packs and a red luggage containing more empty packs (exhibit 5).
  1. The Defendant’s wife’s vehicle was also searched and 1 smoking paper along with cannabis leaves (exhibit 7) was found. She claimed they belonged to the Defendant as he drove the vehicle before. The Defendant accepted the cannabis belonged to him.
  2. The Defendant was informed of his arrest for unlawful possession of illicit drugs and unlawful possession of utensils. He denied having knowledge of the other items found in the vehicle.
  3. The illicit drug exhibits were weighed by Police –
  4. On 10 January 2023, exhibits 4.2 and 7 were tested and confirmed to be cannabis.
  5. On 21 March 2023, exhibits 1, 4.1, 4.4 and 4.5 were tested and confirmed to be methamphetamine.
  6. The Defendant did not cooperate with Police and chose to remain silent. He has previous convictions including a similar offending.
  7. The Defendant requested that two matters to which he had pleaded guilty in the Magistrates Court be brought up for sentencing together with this matter in this Court. They are CR 2609-261/2023 and CR 405,412/2023.

CR 260-261/2023


The Charges


  1. On 6 July 2023, the Defendant pleaded guilty to one count of possession of an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act, and one count of possession of utensils, contrary to section 5A of the said Act.

The offending


  1. On 13 April 2023, when police officers attended the Defendant’s residence for service of the Indictments in relation to the present charges, the Defendant was seen putting a small black bag on a bed in the living room and threw a shirt to cover it. Thereafter, he acted nervously.
  2. When informed that the bag will be searched, the Defendant was quick to inform the police that it was the remainder from a $100 pack he purchased.
  3. Inside the bag, the police found a pack with suspected methamphetamine and a test-tube. Another test-tube was found after a search of the house. The Defendant admitted the items were his.
  4. The content of the pack was tested, it weighed 0.07grams and confirmed to be methamphetamine.
  5. The Defendant did not cooperate with Police and exercised his right to remain silent.

CR 405,412/2023


The charges


  1. On 6 July 2023, the Defendant pleaded guilty to one count of possession of an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act and one count of possession of utensils, contrary to section 5A of the said Act.

The offending


  1. On 27 June 2023, Police received reliable information from an informant that the Defendant was in possession of illicit drugs and was selling them at Tokomololo.
  2. The Police acted on the information and made their way to the Defendant’s residence. Upon arrival, Police found him sitting on the brick fence at his home. He was holding an empty pack in his left hand which he threw behind him and two $50 notes in his right hand.
  3. The police detained and searched him. They found 1 plastic pack, 1 pack containing a white substance and 1 plastic pack containing 4 empty plastic packs and $50. The white substance was tested and confirmed to be methamphetamine weighing 0.12 grams.
  4. The Defendant exercised his right to remain silent and said that he would only speak in Court.
  5. The Defendant’s previous convictions –
Case Number
Offences(s)
Court
Date
Sentence
CR 459/2004
Drunkenness
Magistrate Court
17.08.2004
Fine $20 or 1 week imprisonment.
AM 27/2018
(CRS 497/2018)
Theft
Magistrate Court
31.10.2018
9months imprisonment.
CR79,201,239/2019
i) Obtaining counterfeit currency.
ii) Possession of illicit drugs.
iii) Possession of illicit drugs
Supreme Court
29.11.2019
On probation for 18 months.
CR 186,280/2020
i) Unlawful possession of illicit drugs.
ii) Unlawful possession of utensils.
Supreme Court
13.11.2020
4 years and 9 months imprisonment with the final 18 months suspended.

Crown’s Submissions


  1. The Crown submits the aggravating features of the offending in CR44/2023 to be:
    1. The substantial amount of the Class A illicit drug (methamphetamine) possessed by the Defendant;
    2. The application of section 4(2)(b) and that the Defendant can be described as possessing illicit drugs for the purpose of supplying on the basis of the substantial amount of methamphetamine, the manner in which they were stored, the amount of money seized and his possession of utensils;
    1. The Defendant’s partial cooperation with investigation; and
    1. The Defendant’s previous conviction of similar offences.
  2. The Crown submits the following as mitigating features, the Defendant’s:
    1. Early Guilty plea
    2. Cooperation with the police, albeit limited.
  3. For CR260-261/2023, the Crown submits the following as aggravating features:
    1. The commission the offence while out on bail for CR44/2023.
  4. The Crown submits the mitigating features to be the Defendant’s:
    1. Guilty plea at first given opportunity;
    2. Limited cooperation with the investigation.
  5. For CR405,412/2023, the Crown submits the following as aggravating features:
    1. The commission of the offence whilst out on bail for CR44/2023 and CR260-261/2023.
  6. The Crown submits the following as mitigating features to be the Defendant’s:
    1. Guilty plea at first given opportunity;
    2. Limited cooperation with the investigation.
  7. The Crown referred to the following comparable sentences:
    1. R v Afu [2021] TOSC 61 (4 May 2021) – the Defendant pleaded guilty to a number of possession offences including possession of 27.49 grams of methamphetamine and 196.53 grams of cannabis. LCJ Whitten imposed a starting point of 5 years and 3 months imprisonment for the methamphetamine reduced by 12 months. For the cannabis, a starting point of 2 years reduced by 4 months. In consideration of the overall criminality from these offences that were committed whilst the Defendant was out on bail, 3 months from the methamphetamine charge was added to the head count. Subsequently, the Defendant was sentenced to 4 ½ years imprisonment with the final 18 months suspended for two years on conditions.
    2. R v Siosifa Fotu [2021] TOSC 5 (27 January 2021) – the Defendant pleaded guilty to possession of 25.5 grams of methamphetamine. A starting point of 5 years imprisonment was imposed reduced by 15 months due to mitigating factors. Despite the Defendant’s good character and prospect of rehabilitation, the substantial amount of illicit drugs found in his possession only warranted a partial suspension of 18 months for 3 years on conditions. He was sentenced to 3 years and 9 months imprisonment with the final 18 months suspended for three years.
    1. R v Viliami Mangisi, CR 10/18 – the Defendant was found guilty for possession of 1969.14 grams of methamphetamine and attempted export of illicit drugs. Justice Cato made references to the Zhang guidelines which outlined the sentencing Band 2 for possession of illicit drugs less than 250 grams – 2 to 9 years of imprisonment. The Defendant was sentenced accordingly, to 12 ½ years imprisonment for the possession charge and 5 years for the attempted export to be served concurrently.
    1. R v Misivina Tatakamotonga [2021] TOSC 132 (17 August 2021) – the Defendant was convicted for possession of 99.47 grams of methamphetamine and 3.79 grams of cannabis. The Defendant entered a guilty plea after the Crown closed its case. He was sentenced to 7 years and 8 months imprisonment with the final 6 months suspended for two years on conditions. For the possession of cannabis, he was sentenced to 12 months imprisonment to be served concurrently with the methamphetamine charge.
    2. R v Maile, AC23/2018 – the Respondent pleaded guilty to possession of 0.52 grams methamphetamine at his earliest given opportunity. He was discharged without a conviction by Niu J. The Court of Appeal allowed the Crown’s appeal and ruled in favour of, sentencing the Respondent to 9 months imprisonment, fully suspended on conditions.
    3. R v ‘Emeline Haisila [2022] TOSC 40 (1 June 2022) – the Defendant pleaded guilty to possession of illicit drugs and utensils, contrary to section 4(1)(a)(v) and 5A of the Illicit Drugs Control Act. The items in possession included; 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. LCJ Whitten imposed a starting point of 12 months imprisonment and in consideration of the aggravating and mitigating factors, the Defendant was sentenced to 10 months imprisonment to be served concurrent to the head count.
    4. R v Rodney Toki, AC 19/22 – the Respondent was found guilty for a series of theft and housebreaking charges. He was sentenced to 5 years and 4 months imprisonment by Cooper J where he expressively ordered that it be served concurrently rather than cumulatively, with an existing term of 12 years and 3 months imprisonment fully suspended on bail conditions. This was on the grounds that if served cumulatively, the resulting sentence would be too excessive. The Appellant argued that in consideration of the seriousness of the offending and the Respondent’s lengthy criminal record, it is appropriate for the present sentence to be served partially cumulative to the previous sentence. The appeal was allowed.
  8. Here, the Crown submits the following sentencing formulation:
    1. That a custodial sentence is appropriate in line with R v Maile [2019] TOCA 17 and 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.....”


CR 44/2023

  1. The Crown recommends count 1 as the head sentence and referred to the guidelines for Class A drugs set out in Zhang , in particular - band 2, between 5 and 250 grams indicates a sentence of 2 to 9 years imprisonment.
  2. The Crown submits that the Defendant’s role or level of culpability was between significant and leading and therefore this offending should be placed further up the range within Zhang band 2.
  3. The Crown recommends a starting point of 6 years with a deduction of 12 months in mitigation for the Defendant’s early guilty plea and cooperation with Police albeit limited.
  4. For Count 2, the Crown recommends the appropriate sentence to be 3 months imprisonment. For Count 3, 2 months imprisonment, to be served concurrent to the sentence for Count 1.

CR 260-261/2023


  1. The Crown submits the possession of methamphetamine is the head count (count 1) and referenced the Zhang band 1 guideline, where possession of illicit drugs less than 5 grams indicates a sentence of community-based probation to 4 years imprisonment.
  2. Accordingly, the Crown suggests a starting point of 12 months imprisonment with a deduction of 3 months in mitigation for the Defendant’s guilty plea and his cooperation with Police, albeit limited.
  3. For possession of utensils (count 2), the Crown recommends 6 months imprisonment to be served concurrent to the head sentence.

CR 405,412/2023


  1. The Crown recommends the possession of methamphetamine as the head count (count 1) and suggests band 1 in the Zhang guideline as the appropriate range.
  2. The Crown recommends a starting point of 18 months imprisonment. For the Defendant’s guilty plea and his limited cooperation with Police, 6 months should be deducted.
  3. Six months imprisonment was suggested for the utensils (count 2) to be served concurrent to the head sentence.

Conclusion


  1. On the basis that the Defendant pleaded guilty to all three offences and his request to have it sentenced together, the Crown in consideration of the totality principle recommended that 3 months imprisonment from CR 260-261/2023 and 6 months imprisonment from CR 405,412/2023 be served cumulative to the final sentence in CR 44/2023
  2. In reference to the criteria set out in Mo’unga v R [1998] Tonga LR 154, the Crown accepts that the Defendant is entitled to some suspension.
  3. The Crown’s final recommended sentence for the three offending is 5 years and 9 months imprisonment. For the breach of the conditions of his suspended sentence in CR 186 and 280 of 2020, the Crown requested the 8 months suspension reactivated and added to the imprisonment term in this present case. Resulting in a final sentence of 7 years and 3 months imprisonment.
  4. The Crown proposed for the final 6 months to be suspended for three years on conditions.
  5. Pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the Crown sought subjects of these proceedings, namely the illicit drugs and utensils, to be destroyed and all cash seized to be forfeited to the Crown pursuant to section 33 of the said Act.

Pre-sentencing report


  1. The Defendant was 53 at the time of the offending. He was raised by his grandparents from a young age at Pangaimotu, Vava’u. When they migrated to Hawaii, he went with them and was educated there. He graduated from High School in 1987 and enrolled at BYU in 1989.
  2. He travelled to Tonga in 1990 to bury his grandmother and when his grandparents both died, he lived on his own and travelled between Hawaii, Australia and Tonga.
  3. Seini Otolose Fungavaka, his wife, said that the Defendant was deported to Tonga around 2001-2002. They met and married in 2007 and have 3 children who are aged 14, 16 and 18 years old. The children live with her and her parents at Holonga. She confirmed her husband changed once he connected with drug users.
  4. The Defendant is healthy and kept a mistress when with his drug using peers. However, after he was released from prison, he returned to his family home at Tokomololo with his wife and children.
  5. The Probation Officer reported that the Defendant was “ready to accept” what his sentence will be and understood that imprisonment was inevitable.

Starting point

  1. The maximum penalty for unlawful possession of methamphetamines is a fine not exceeding $1 million or 30 years’ imprisonment or both. The maximum penalty for possession of 28 grams or more of cannabis is a fine not exceeding $50,000 or 7 years’ imprisonment or both.
  2. The Courts have widely accepted that methamphetamine is a scourge to societies everywhere that has affected a great deal of harm and misery. Locally, its distribution and use is a significant Government and community concern and is evident in the significant penalties legislated under the Illicit Drugs Control Act.
  3. It has been underlined that when considering appropriate sentences in these types of cases, the courts are required to ensure that “sentences imposed ... are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.” [1]

CR 44/2023

  1. I agree with the Crown that the head count is the possession of 28.66 grams of methamphetamine. Given the significant amount involved is higher than Afu[2] and Fotu[3] I agree that the starting point for count 1 should be higher. For count 2, the number of empty packs involved is unknown but the presence of a scale and the amount of cash present, in my view, warrants a starting point around half of that set in Haisila[4]. Finally for count 3, I find the amount of cannabis a little more but within the range found in Tatakamotonga[5] and for consistency the starting should be in line with that case.
  2. Thus, having regard to the seriousness of the offending, the substantial amount of methamphetamines and cannabis involved, the presence of utensils and amount of cash present, the comparable sentences and principles referred to above, I set the following starting points:
    1. Count 1 (head count) -6 years imprisonment;
    2. Count 2– 6 months imprisonment, concurrent to count 1;
    1. Count 3 –12 months imprisonment , concurrent to count 1.
  3. In mitigation, I deduct 12 months from Count 1, 1 month from Count 2 and 2 months from Count 3 resulting in final sentences of
    1. Count 1 - 5 years imprisonment;
    2. Count 2 - 5 months imprisonment;
    1. Count 3- 10 months imprisonment.
  4. Counts 2 and 3 are to be served concurrent to the sentence in Count 1.

CR 260-261/2023


  1. The Zhang band 1 guideline points to where possession of illicit drugs is less than 5 grams, the range is between a sentence of community based probation to 4 years imprisonment.
  2. For Count 1, involving the 0.07 grams of methamphetamine, I set a starting point of 12 months and for Count 2, a starting point of 6 months.
  3. For the Defendant’s early guilty plea and cooperation with the police, I deduct 3 months from Count 1 and 1 month from Count 2, resulting in a final sentence of 9 months imprisonment for Count 1 and 5 months imprisonment for Count 2 to be served concurrent to Count 1.

CR 405,412/2023


  1. Again, The Zhang band 1 guideline points to where possession of illicit drugs is less than 5 grams, the range is between a sentence of community-based probation to 4 years imprisonment.
  2. For Count 1, involving the 0.12 grams of methamphetamine, I set a starting point of 18 months and for Count 2, a starting point of 6 months.
  3. For the Defendant’s early guilty plea and cooperation with the police I deduct 6 months from Count 1 as proposed by the Crown and 1 month from Count 2, resulting in a final sentence of 12 months imprisonment for Count 1 and 5 months imprisonment for Count 2 to be served concurrent to the head count.

Cumulative or Concurrent


  1. Balancing the Defendant’s early guilty pleas on all 3 matters and his recidivism against the principles of totality, I accept that the sentences for the offences brought up from the Magistrates Court should be made partially cumulative.
  2. I add 3 months from the sentence in CR 260-261/23 and 6 months of the sentence in CR 405,412/23 to the sentence on the head count in CR 44/23, resulting in a final sentence of 5 years and 9 months imprisonment.

Suspension


  1. Pursuant to s.24(3)(b) and (c), I rescind the suspended sentence of 18 months in CR186,280/2020 and add it to the final sentence in CR 44/2023.
  2. The considerations in Mo’unga [1998] Tonga LR 154 at 157 do not favor the Defendant. He is not young. He has previous convictions and continues to accumulate charges to date. I find the breaching of suspension and bail conditions in addition to the amount of drugs in question suggest culpability and premeditation.
  3. On 19 September, 2023, in open court, the Defendant amongst other things explained that he is taking full responsibility for his actions. He said he has violated the law and those who had placed their trust in him. He acknowledges the bad choices he has made in life and said that he has sought help from God. He is in the process of moving to find himself.
  4. The Crown has suggested the final 6 months of the Defendant’s final sentence be suspended. On that basis, I suspend the final 6 months of the Defendant’s final sentence on conditions.

Result


CR 44 of 2023


  1. The Defendant is convicted for
    1. Count 1 – 5 years imprisonment;
    2. Count 2 – 5 months imprisonment;
    1. Count 3- 10 months imprisonment;
    1. Counts 2 and 3 is to be served concurrent to Count 1.

CR 260-261/2023


  1. The Defendant is convicted for:
    1. Count 1(head count) – 9 months imprisonment;
    2. Count 2 – 5 months concurrent to Count 1.

CR 405,412/2023


  1. The Defendant is convicted for:
    1. Count 1(head count) – 12 months imprisonment;
    2. Count 2 – 5 months concurrent to Count 1.
  2. In consideration of the totality principle, 3 months from CR 260-261/23 and 6 months from CR 405,412/23 is added to the sentence for Count 1 in CR 44/23, resulting in a final sentence of 5 years and 9 months imprisonment.
  3. The reactivation of the 18 months suspension in CR 186,280/2020 takes the total sentence to 7 years and 3 months imprisonment.
  4. The final 6 months of the sentence is suspended for a period of 3 years from the date of his release on conditions that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    1. report to the probation office within 48 hours of his release from prison; and
    1. complete any drugs awareness course and a life skills course available in prison or as directed by his probation officer after his release.
  5. The Defendant is to be given credit for any time spent in custody on remand for the subject charges of these proceedings.
  6. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence.
  7. Pursuant to:
    1. s 32(2)(b) of the Illicit Drugs Control Act, the subject illicit drugs of these proceedings are to be destroyed; and
    2. s 33 of the said Act, all cash and other items seized by police is to be forfeited to the Crown.
NUKU’ALOFA
P. Tupou KC
21 September, 2023
ACTING LORD CHIEF JUSTICE

[1] R v Afu [2021] TOSC 61
[2] ibid
[3] R v Siosifa Fotu [2021] TOSC 5
[4] R v ‘Emeline Haisila [2022] TOSC 40
[5] R v Misivina Tatakamotonga [2021] TOSC 132

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2023/50.html