R v Fonua [2023] TOSC 54; CR 89 of 2023 (13 October 2023)

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

CR 89 of 2023

REX
-v-
Malakai Fonua

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC
Appearances: Mrs S. ‘Eliesa for the Crown.
The Defendant for himself.
Date: 13 October, 2023.

The proceedings

1. On 11 August, 2023, the Defendant, pleaded guilty to one count of possession of illicit drugs, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act; one count of possession of an illicit drug, contrary to section 4(1)(a)(i) of the said Act; and one count of unlawful possession of utensils, contrary to section 5A of the above-mentioned Act.

The offence

2. On or about 23 February 2023, at approximately 6:10 pm, the Police received information that illicit drugs were being sold at the Defendant’s residence at Lomaiviti.
3. The Police acted on the lead and as they turned into the Defendant’s home, he was seated on a motorcycle at the front. The Defendant got off the motorcycle and Officers Tomu and Ngalu approached him, identifying themselves as police officers. The Defendant was informed of his rights. The Defendant turned and ran in the opposite direction. A chase ensued and the officers caught and escorted him back to his motorcycle.
   
4. Police Officer Fifita informed the Defendant they will be undertaking a search of his residence pursuant to sections 12, 13 and 24 of the Illicit Drugs Control Act. First, the motorcycle was searched and 01 cream bag (exhibit 1) was found. Inside were 18 packs of suspected methamphetamine; $5 (exhibit 2), $50 (exhibit 3) and a silver scale (exhibit4). He was told he was arrested for possession of a suspected illicit drug.
5. The Defendant was shown one of the packs. He denied any knowledge of it. He was asked if there was anything illegal on the property, he denied that too. His wife and family were informed that their residence will be searched. The Defendant was present whilst the police conducted the search.
6. During the search, Officer Tomu found:
   1. 01 bag (Exhibit 5) inside a laundry basket by a door. Inside the bag were 38 empty packs and 01 pack of suspected cannabis (Exhibit 6);
   2. 01 part of a test tube (Exhibit 7) inside a broken speaker in front of the porch.
7. The Defendant admitted ownership of the bag and the items in it but denied any knowledge of the test tube. He was informed he was being arrested also for possession of utensils and suspected illicit drugs.
8. On 12 April 2023, the suspected methamphetamine and suspected cannabis exhibits were weighed, tested and confirmed to be methamphetamine and cannabis. The methamphetamine weighed 1.74 grams and the cannabis weighed 0.02 grams.
9. When the Defendant was interviewed by Police, he exercised his rights to remain silent.

Crown’s submissions

10. The Crown submits the aggravating features of the offending were:
    1. Possession of illicit drugs is an issue in the Kingdom;
    2. The Defendant possessed over 1 gram of a Class A Drug;
    100. The Defendant’s attempt to flee from the Police;
    4. Based on the amount of methamphetamine involved and possession of utensils section 4(2)(b) deems the Defendant as supplying illicit drugs.
11. The Crown submits the following as mitigating features;
    1. The Defendant pleaded guilty at the first available opportunity;
    2. First drug related offence.
12. The Crown referred to the following comparable sentences:
    1. Rex v Tangata ‘o Pangai (a.k.a Pinomi Lavemai) CR 32/2021 – the Defendant pleaded guilty to possession of 1.63 grams of methamphetamine. A starting point of 21 months was set, reduced by 7 months with the final 6 months suspended on conditions.
    2. R v Petelo Moli CR 284/20 – Lord Chief Justice Whitten imposed a sentence of 16 months imprisonment, fully suspended. This was for possession of 2.12 grams of methamphetamine.
    100. Rex v ‘Uhila Tu’i (CR 66/19) – the Defendant pleaded guilty to possession of, among other things, 1.29 grams of methamphetamine. He was sentence to 14 months imprisonment with the final 6 months suspended.
    4. Rex v Viliami Mangisi (CR 10/2018) – this case sets out sentencing bands as guidelines for determining the appropriate sentence for a drug offender. Cato J adopted the guidelines in Zhang v R [2019] NZCA 507 which revised the earlier bands in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) as follows –
       1. Band 1 for less than 5 grams – Community to 4 years imprisonment;
       2. Band 2 for less than 250 grams – 2 to 9 years imprisonment.
    5. Rex v ‘Emeline Haisila (CR 22/2022) – the Defendant pleaded guilty to possession of utensils. Lord Chief Justice Whitten adopted a starting point of 12 months imprisonment, reduced by 2 months for her early guilty plea, resulting in a final sentence of 10 months imprisonment.
    6. Rex v Siu Holani (CR 87 of 2022) – the Accused pleaded guilty to possession of 1.68 grams of methamphetamine and 5.57 grams of cannabis. A starting point of 18 months imprisonment was set and increased to 24 months for his criminal records. For the methamphetamine charge, a final sentence of 21 months was imposed with the final 12 months suspended on conditions. For the cannabis charge, a final sentence of 1 year imprisonment to be served concurrently with the methamphetamine charge.
13. Here, the Crown submits the following sentencing formulation:
    1. That a custodial sentence is appropriate in line with R v Maile [2019] TOCA 17 where the Court of Appeal held at [18] that those involved with methamphetamine in any capacity, even in small amounts, can expect to receive custodial sentences.
    2. The Crown submitted Count 1 as the head sentence and recommended a starting point of 20 – 30 months imprisonment with a 9 months reduction for the Defendant’s early guilty plea and lack of drug related offence.
    100. For Count 2, the Crown recommended a starting point of 1 month imprisonment and for Count 3 to 9 months imprisonment to be served concurrently with Count 1.
    4. In reference to the criteria set out in Mo’unga v Rex [1998] Tonga LR 154, the Crown accepted that the Defendant should be granted partial suspension. This is of the view that the Defendant is young, he pleaded guilty at the earliest opportunity and his only conviction was in 2020.
14. The Crown recommended a final sentence of 21 months imprisonment for Count 1, 1 month imprisonment for Count 2 and 9 months imprisonment for Count 3. Counts 2 and 3 are to be served concurrently with Count 1. The last 12 months of the sentence is to be suspended for 2 years on conditions.
15. Pursuant to section 32(2) of the Illicit Drugs Control Act, the Crown sought the destruction of all illicit drugs and utensils and all cash seized, to be forfeited to the Crown pursuant to section 33 of the said Act.

Pre-sentencing report

16. Unfortunately, the Defendant did not make himself available for the preparation of the Probation Office’s report.

Starting Point

17. The maximum statutory penalties for the instant offences are:
    1. possession of 1 gram or more of a Class A illicit drug such as methamphetamine is a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life, or both;
    2. possession of less than 28 grams of a Class B drug such as cannabis is a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year, or both; and
    3. possession of utensils is a fine not exceeding $10,000 or imprisonment for any period not exceeding 3 years, or both.
18. In 2018, Cato J opined in R v Ngaue [2018] TOSC 38 (CR6 of 2018) that:

“It has become more noticeable in recent times, that methamphetamine is featuring more commonly in these courts, generally, however, offenders being involved in small amounts of the drug. The drug has the potential to cause society in Tonga immense damage. This Court, like others elsewhere, will impose severe penalties on those who engage with this drug to deter this kind of offending and to protect Tongan society from the ravages of it.”^[1]

19. In 2019, the Court of Appeal in R v Maile [2019]TOCA 17^[2] echoed the same sentiments and held that those involved with methamphetamine in any capacity, even in small amounts should expect to receive a custodial sentence.
20. In 2021, Parliament increased the term of imprisonment for the offence of possession of 1 gram or more of a Class A illicit drug from 30 years to life. Plainly, in a matter of a few years the society’s need to intensify the response to those who participate in these types of offences warranted a review in order to strengthen the protection against the genuine depredations that has befallen the society caused by these drugs and to daunt the attraction of the significant markets and potential large profits discussed in Ngaue.
21. In the instant case the headcount is the possession of 1.74 grams of methamphetamine. I agree with the Crown that the amount of the illicit drug and other related drug paraphernalia deem the Defendant a supplier pursuant to ss4(2)(b) of the Act.
22. In R v Siulangapo^[3], the court adopted the view in R v Cox^[4] that the role played by the offender is an important consideration, ranging from “lesser, “significant” and “leading”. This was recently endorsed by the Court of Appeal in AC 5 of 2023 R v Tamo’ua [CR 148 of 2021]. The combination of the Defendant’s attempt to escape, his denial of any knowledge of the content of the bag found on the motorbike on which he was sitting, the denial of the presence of anything illegal on his property and then admitting ownership of the bag found containing 38 empty packs and 1 pack of cannabis, I consider the Defendant’s role here as “significant”.
23. Accordingly, having regard to the seriousness of the offending demonstrated by the increased maximum penalty of life imprisonment, the amount of the methamphetamine, the significant role the Defendant, the sentencing principles of deterrence and denunciation and considering the amount here falls a little above the comparable cases of Tangata ‘o Pangai and Holani above, I set a starting point of 24 months imprisonment.
24. For his early guilty plea and lack of conviction in the previous 14 years I deduct 2 months, resulting in a final sentence of 22 months imprisonment.
25. For counts 2 and 3, I adopt the Crown’s suggestion of 1 month and 9 months imprisonment respectively to be served concurrent to count 1.
26. Against the considerations in Mounga^[5], the Defendant is 25 years old and has one unrelated conviction. Accordingly, I suspend 10 months of his sentence for a period of 2 years on conditions.

Result

27. Malakai Fonua is convicted of:
    1. Possession of 1.74 grams of methamphetamine and is sentenced to 22 months imprisonment;
    2. Possession of 0.02 grams of cannabis and I sentenced to 1 months imprisonment; and
    100. Possession of utensils and is sentenced to 9 months imprisonment.
28. The sentences for counts 2 and 3 is to be served concurrently to count 1.
29. The final 10 months of the Defendant’s sentence is suspended for a period of 2 years on the condition that during that period he is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. contact the probation office within 48 hours of his release and thereafter

according to directions provided by the probation officer; and

100. attend and satisfactorily complete a course on drug abuse at the direction of his probation officer.

30. Failure to comply with these conditions may result in the suspension being rescinded

and the Defendant being required to serve the balance of his prison term.

31. In the result, and subject to those conditions and any remissions available under the

Prisons Act, the Defendant will be required to serve 12 months in prison and is to be given credit for any time spent in custody on remand for the charges the subject of these proceedings.

32. The illicit drugs and utensils subject of these proceedings are to be destroyed and all cash seized is to be forfeited to the Crown pursuant to s.32(2) and s.33 respectively of the Illicit Drugs Control Act.
    

NUKU’ALOFA	P. Tupou KC
13 October, 2023	ACTING LORD CHIEF JUSTICE

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^[1] [10]
^[2] [18]
^[3] CR 63 of 2023
^[4] [2022] TOSC 90
^[5] Mou’nga v R [1998] Tonga LR 154