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R v Tu'i [2023] TOSC 52; CR 90 of 2023 (10 October 2023)

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


CR 90/2023


REX

-v-


‘Uhila Tu’i


Sentencing Remarks


BEFORE: THE HONOURABLE COOPER J
Counsel: Mrs. S. ‘Eliesa for the Prosecution
The defendant was unrepresented
Date of: 10 October 2023


  1. Mr. Tu’i appears before the court to be sentenced having pleaded guilty upon his arraignment 15 August 2023 to counts 1 to 3 of the indictment.

(Count 1)

POSSESSION OF AN ILLICIT DRUG, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.

(Count 2)

POSSESSION OF AN ILLICIT DRUG, contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.

(Count 3)

POSSESSION OF UTENSILS, contrary to section 5A of the Illicit Drugs Control Act.


PARTICULARS OF THE OFFENCES

(Count 1)

‘Uhila Tu’i of Fasi-mo e-Afi, on or about 10 February 2023, at Hala’ovave, you did knowingly without lawful excuse, possess a Class A illicit drug, when you had in your possession 33.97 grams of methamphetamine.

(Count 2)

‘Uhila Tu’i of Fasi-mo e-Afi, on or about 10 February 2023, at Hala’ovave, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 82.25 grams of cannabis.

(Count 3)

‘Uhila Tu’i of Fasi-mo e-Afi, on or about 10 February 2023, at Hala’ovave, you did knowingly without lawful excuse possess utensils when you had in your possession two test tubes, two straws, one weighing scale and 48 empty packets, used for the supply and use of illicit drugs.

Background

  1. On 10 February 2023, Tonga Police were conducting a search for drugs at a residence at Hala’ovave.
  2. At the end of the operation, Police Officer Fifita walked to the Sunia’akaveka Road to retrieve a Police surveillance vehicle that was parked in front of a Chinese shop.
  3. As he did so he saw the Defendant arriving a black Toyota Harrier and parked in front of the same Chinese shop. Officer Fifita recognized him.
  4. Mr. Tu’i got out of his vehicle leaving the engine running, he was on his phone and was looking around in a way suggestive he was to meet someone.
  5. Officer Fifita was suspicious so he got out to talk to him. As the officer drew close, Mr. Tu’i recognised him and said “Officer don’t” which further aroused the other’s suspicions.
  6. Officer Fifita reached for his handcuff but the Defendant said, “Don’t Officer, please think of my family”, and moved as if to make off in his vehicle.
  7. Police Officer Fifita handcuffed the Defendant’s right hand, Mr. Tu’i grabbed the Officer’s hand to stop him, there was a short struggle.
  8. Police Officer Fifita told the Mr. Tu’i to stop and keep still several times but he kept moving around to avoid being handcuffed.
  9. The Police commenced the search and found the following inside the Defendant’s van:
  10. The Police officers informed Mr. Tu’i of his right to remain silent before they questioned him.
  11. He admitted to the Police that all the exhibits found inside the van are his.
  12. The Police confirmed the suspected illicit drugs proved to be just that.
    1. The total weight of the cannabis exhibits was 82.25 grams.
    2. The total weight of the methamphetamine exhibits was 33.97 grams.
    3. The sum total of money confiscated in the operation was $305.00.
    4. The ammunition seized was examined by the Police Armorer but they were unusable.
  13. The Defendant did not cooperate with the Police and chose to remain silent.

Previous convictions

DATE OF SENTENCE
COURT
CASE NUMBER
OFFENCE
SENTENCE
1
12/7/2019
Magistrate Court
CR 135/2019
  1. Unlawful possession of illicit drug
  1. Fine of $300.00- or 6-weeks imprisonment
2
31/5/2019
Supreme Court
CR 66/2019
  1. Unlawful possession of methamphetamine
  2. Unlawful possession of cannabis
  3. Cultivation of illicit drug
  1. 14 months imprisonment with the final 6 moths suspended on conditions.
  2. Two months imprisonment to be concurrent to Count 1.
  3. Two months imprisonment to be concurrent with Count 1.
3
16/7/2019
Supreme Court
CR 116/2019
  1. Possession of Methamphetamine
  2. Possession of cannabis
  1. 6 months imprisonment to be added to his sentence of 14 months in CR 66/19.
  2. Count 2 – Convicted and Discharged.
4
10/3/2021
Magistrate Court
CR 122-123&129/21
  1. Possession of Illicit Drugs.
  2. Unlawful Possession of Utensils.
  3. Possession of Illicit Drugs.
Sentence to 3 months imprisonment for each Count but to be served concurrently.
5
24/3/2023
Supreme Court
CR 40/2022
  1. Possession of a Pistol without a Licence (Count 7).
    1. Possession of Ammunition Without a Licence (Count 8).
    2. Carrying a firearm with Intent to Resist Arrest (Count 10).
  1. Count 7: 16 months imprisonment – Concurrent to Count 10.
  2. Count 8: 16 months imprisonment – Concurrent to Count 10.
  3. Count 10: 33 months imprisonment with the final 9 months suspended.

  1. The Crown have submitted the following to be aggravating features.
    1. The Defendant is a repeat offender having convictions for possession of illicit drugs (methamphetamine & cannabis) and unlawful possession of utensils.
    2. The Defendant possessed a significant amount of methamphetamine and cannabis.
    3. The Defendant committed this offence whilst on bail awaiting his sentencing in CR 40/2022.
    4. The circumstances of the offending indicates that the Defendant was in possession for supply. This is supported section 4(2)(b) of the Illicit Drugs Control Act, possession of the weighing scale and 48 empty dealer packets used for weighing and packing illicit drugs and the $305.00 which can only be explained as proceeds from supplying. This point was set out by Lord Chief Justice Whitten in R v Tangata ‘o Pangai, CR 32 of 2021.
  2. The following to be mitigating features.
    1. The Defendant’s cooperating with the Police during the Search.
    2. The Defendant’s early guilty plea.

Relevant legislation

  1. The penalty for possessing 1 gram of methamphetamine or more is in section 4(1)(a)(iv) of the Illicit Drugs Control Act. It is a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.
  2. The penalty for possessing cannabis more than 28 grams is in section 4(1)(a)(ii) of the Illicit Drugs Control Act. it is a fine not exceeding $5,000 or imprisonment for a term not exceeding 7 years or both.
  3. The penalty for possession of utensil is in section 5A of the Illicit Drugs Control Act and it is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both.

Comparable sentences

  1. R v Paletilit Afu CR 203 & 209/2020. Lord Chief Justice Whitten KC. Wherein with reference to the New Zealand Court of Appeal case of Zhang v R [2019] NZCA 507 and the bands set the starting point, below, was arrived at.

(a) Band 1: up to 5 g = community to 4 years; and

(b) Band 2: up to 250 g = 2 to 9 years.


  1. For offences of possession 27.49 grams methamphetamine and possession 196.53 grams cannabis, he set starting points of 5 years and 3 months’ imprisonment and 2 years’ imprisonment, respectively.
  2. R v Siosifa Fotu CR 311 of 2020. For possession 25.5 grams methamphetamine Acting Justice Langi imposed a starting point of 5 years’ imprisonment.

Pre-sentence report

  1. Mr. Tu’i is currently serving a sentence of 33 months’ imprisonment, the last 9 months suspended for 12 months, as noted above. That was for firearms offences (CR 40/2020).
  2. The probation officer in the addendum report prepared for the instant case noted that Mr. Tu’i explained the offences for which he is to be sentenced were matters that he was arrested for when he was found with the firearms and ammunition the subject of CR 40/2020, but was charged separately for.
  3. Otherwise the report simply states that he “... now it ready to be sentenced and he is ready to bear the burden of all consequences.” Implying that he admits his guilt and shows remorse.
  4. Yet, these offences did not come around at the time of his offending in CR 40/2020. They were committed approximately one month before he was to be sentenced for the firearms offences and whilst he was on bail for them.
  5. I accept the Crown’s submissions on aggravating features inasmuch as they are offences carried out on bail. As for the previous convictions, I shall turn to that in the context of the principles set out for suspending sentences in Mo’unga [1998] Tonga LR 154.
  6. The considerations advanced were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
  7. So as to avoid “double counting”, I shall consider his previous convictions when having regard to possibility suspending any part of his sentence.
  8. As for the suggestion the weight of illicit drugs aggravates the offence, given that the Courts always adopt the weight as one of the most important factors and group sentences accordingly, the approach is of itself intrinsically linked to weight. I do not consider weight a further aggravating feature.
  9. I accept that there was some cooperation with the police, albeit at the search but not at the police station.
  10. I adopt a starting point of 5 ½ years. This I increase to 6 ½ years (78 months) given that he was on Court bail at the time of the offending.
  11. Plainly he was drug dealing. The amount of methamphetamine, money, scales and packets make that quite apparent. The sentence of R v Afu was one of the guiding factors in coming the starting point I did. Quite aside from the statutory presumption that this weight of methamphetamine was possession for supply, I note the dependence on a case that was sentenced as drug dealing means that fact has already been acknowledged in arriving at the starting point I did.
  12. I am not minded to discount his sentence for the confession at the scene given his lack of compliance with the police after he was arrested and taken to the police station.
  13. He will be given a discount of 30 % for his early guilty plea, in line with the manner in which every defendant is treated in the Court. I round that up to make 24 months’ reduction. This makes 4 ½ years (54 months).
  14. Count 2, I set a starting point of 18 months, discount that by 30 % and arrive at a sentence of 12 months’ imprisonment.
  15. Count 3, a starting point of 9 months, reduced on his guilty plea to 6.
  16. Counts 2 and 3 will run concurrent with one another and the sentence in count 1.

Consecutive or concurrent sentences

  1. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
  2. I conclude that this sentence must be consecutive to the sentence in Cr 40/2020.

Totality

  1. I have gone on to consider the question of totality.
  2. In R v Selupe [2021] TOSC 47 at [25] Lord Chief Justice Whitten KC said this :

“The totality principle requires the court to have regard to the totality of the

offending, particularly where the offences are a series of related offences. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the

process to consider whether the aggregate figure represents a proper period of

incarceration to be imposed for the total criminality involved: McDonald v The

Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where

the prisoner has not previously been sent to gaol, the accumulation of

sentences to be imposed ought not to result, unless there is no alternative, in a

total which is a crushing first period of imprisonment.”

  1. Having considered the matter carefully and taken into account the seriousness of both sets of offending, I conclude that the overall sentence if both run consecutively is not manifestly excessive.

Suspension

  1. In applying the Mo’unga principles and having considered Mr. Tu’i’s history of illicit drug offending I consider no portion of his sentence should be suspended.
  2. Therefore he is to serve 4 ½ years’ imprisonment before he is eligible for release on the suspended portion of his sentence in Cr 40/2020.

Result

  1. 4 ½ years’ imprisonment.
  2. All drugs paraphernalia to be forfeited and destroyed.
  3. All monies to be forfeited.
NUKU’ALOFA
N. J. Cooper
10 October 2023
J U D G E

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