R v Manuofetoa [2023] TOSC 59; CR 142 of 2023 (6 December 2023)

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

CR 142 of 2023

REX

-v-

HENELI MANUOFETOA

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mrs S. ‘Eliesa for the Prosecution
The Defendant in person
Date: 6 December, 2023.

The charges

1. On 11 October 2023, the Defendant pleaded guilty to one count of possession of illicit drugs (Count 1), contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act, one count of unlawful possession of utensils (Count 2), contrary to section 5A and one count of attempted destruction of evidence (Count 3), contrary to section 37A (1) and (2) of the said Act.

The Offending

2. In the evening of 19 June 2023, Sergeant Tu’amelie Fifita received information that the Defendant, Heneli Manuofetoa, 42 from Ma’ufanga, was selling illicit drugs in Nuku’alofa from a white vehicle with registration number R-2825.
3. It was confirmed that the vehicle was travelling towards Popua and Fangaloto on Vuna Road. The Drugs Squad were briefed. Inspector Vi and the Squad responded. They sighted the Defendant’s vehicle at Latae Taione’s residence at Fangaloto.
4. The Defendant was driving the vehicle with a passenger seated on the front passenger seat. The Police stopped the vehicle and Police Officer Mafi approached the Defendant. He informed that they were police officers and told the Defendant not to move. The Defendant turned to the front passenger seat and poured something from a packet to the floor. Officer Mafi grabbed the Defendant’s hand and handcuffed him.
5. The Police informed the Defendant and his passenger that they were detained and a search of the vehicle will be pursued under sections 12 and 13 of the illicit Drugs Control Act.
6. A glass smoking pipe^[1] was seen between the Defendant’s thighs. The Defendant was informed of his right to remain silent. When asked about the pipe, the Defendant admitted it was his. A piece of straw^[2] on the speedometer and a wrinkled pack^[3] on the floor of the front passenger seat were also found.
7. The Defendant and his passenger were searched. Nothing was found on his passenger while $80 was found on the Defendant’s person.
8. The vehicle was searched and white particles were found scattered on the floor of the front passenger seat^[4] and the floor of the driver’s seat^[5]. The police placed these particles into 2 new separate empty packs.
9. The Defendant and his passenger were informed of their right to remain silent and were asked whether they had any knowledge of the white particles. The Defendant admitted it belonged to him.
10. The Defendant was informed the search would be completed at the Nuku’alofa Police Station. The search at the Police Station uncovered the following:

Quantity	Items	Exhibit No.
3	Test tubes wrapped together using white tape.	8
1	Piece of clear straw found inside a small black bag which was placed under the radio	9
	Pieces of blocks suspected to be methamphetamine scattered between the front passenger’s seat and the driver’s seat.	10
1	Piece of a test tube found inside the glove box.	11
1	Clear straw found on the side of the driver’s seat.	12
$300	Cash found in a box under the radio	13
$72	Cash found inside a brown hoodie in the boot.	14

11. The Accused persons were informed of their right to remain silent and asked whether they had any knowledge of the items found in the vehicle. They both denied any knowledge of the items.
12. When they were informed that the search was complete, they indicated they were satisfied but refused to sign the paperwork. They were arrested and taken into custody.
13. Exhibit 7 was tested for fingerprints on 20 June 2023. It was unsuccessful. Sergeant Leveni weighed and examined the illicit drugs exhibits as follows:

Exhibit No.	Name	Net Weight of illicit drug (grams)
5	1 pack	0.44
6	1 pack	0.11
10	1 pack	0.23
	Total	0.78

14. The content was confirmed to be methamphetamine.
15. On June 22 2023, the Defendant was interviewed. He exercised his right to remain silent. He has previous convictions.

Crown’s submissions

16. The Crown considered the aggravating factors for the Defendant to be:
    1. Possession of illicit drugs is a serious issue in the Kingdom;
    2. He tried to get rid of the drugs by pouring it inside the vehicle;
    100. He was in possession of a smoking pipe which indicates he is a user;
    4. Pursuant to section 4(20)(d), he is deemed a supplier;
    5. He has drug-related convictions and previous convictions show he is a habitual offender.
17. The sole mitigating feature is his early guilty plea.
18. The Crown referred to the following comparable sentences:

For destruction of evidence:

1. Rex v Kepilini Pole’o (CR57/2021) – the Defendant pleaded guilty to destruction of evidence (smashing a test tube) and possession of utensils (scale and empty packs). He was found guilty after a contested trial, for possession of 0.13 grams of methamphetamine. A starting point of 2 years imprisonment was imposed for the destruction of evidence charge, 9 months for the possession of methamphetamine, and 6 months for the utensils. The starting points were reduced by one-third for the Defendant’s lack of previous convictions and early guilty pleas to the charges. He was sentenced to 16 months imprisonment for the destruction of evidence, 7 months for the methamphetamine, and 4 months for the utensils, concurrently. The sentence was fully suspended for 2 years on conditions.
2. Rex v Rajh Kumar (CR101/2022) – the Defendant was convicted after a contested trial, for attempting to knowingly destroy evidence when he stepped on a small plastic pack containing white residue and dragged it with his feet. A starting point of 2 years imprisonment was set. For his previous good record and lack of relevant offending, 6 months was deducted. He was sentenced to 18 months imprisonment, fully suspended on conditions.

100. Rex v Kae Tau’aika (CR4/2021) – the Defendant was found guilty after trial for destruction of evidence (breaking a test tube) and unlawful possession of utensils (dealer packs, weighing scale and test tubes). A starting point of 18 months imprisonment was set for the destruction of evidence and 12 months for the utensils. There were no mitigating factors. He was sentenced to 18 months imprisonment for the destruction of evidence, and 12 months for the utensils, concurrently. The sentence was fully suspended for 2 years on conditions.

4. Rex v Folauola Kamoto (CR94/2023) – the Accused was charged with attempting to destroy 14 packs of methamphetamine when she tried to flush it down the toilet, and possession of 0.51 grams of methamphetamine. She was sentenced to 17 months imprisonment for the destruction charge, and 8 months for the possession, to be served concurrently.

For possession of methamphetamine below 1 gram:

5. Fainga Lavulo Tengange [2020] TOSC 9 – the Defendant pleaded guilty, albeit late, to possession of 0.8 grams of methamphetamine. He was a first-time offender and cooperated with the Police. He was sentenced to 6 months imprisonment, fully suspended for 12 months on conditions.
6. ‘Unga (CR28/2019) – the Defendant pleaded guilty to possession of 0.47 grams of methamphetamine. She was a first-time offender, and was sentenced to 8 months imprisonment, fully suspended.
7. Master Tome Suasau (CR120/2020) – the Defendant pleaded guilty to possession of 0.48 grams of methamphetamine. A starting point of 12 months was imposed, reduced by 4 months by way of mitigating. He was sentenced to 8 months imprisonment, fully suspended for two years on conditions including 70 hours of community service.
8. R v Maile (AC23/2018) – the Respondent pleaded guilty to possession of 0.52 grams of methamphetamine at first given opportunity. He was discharged without conviction by Justice Niu. The Court of Appeal allowed the Crown’s appeal on sentence and imposed a sentence of 9 months imprisonment, fully suspended on conditions.

For possession of utensils:

1. R v ‘Emeline Haisila [2022] TOSC 40 (1 June 2020) – the Defendant pleaded guilty to possession of illicit drugs and possession of utensils, contrary to section 4(1)(a)(v) and 5A of the Illicit Drugs Control Act. The utensils were 766 empty dealer packs, test tube containing fragments of methamphetamine, notebooks of suspected records of drug purchases and supplies, two weighing scales, two straws and $150. Lord Chief Justice Whitten adopted a starting point of 12 months imprisonment and in account of the aggravating and mitigating factors, the Defendant was sentenced to 10 months imprisonment, to be served concurrent to the head count.

For sentence served cumulatively:

10. R v Rodney Toki (AC19/2022) – the Respondent was found guilty of a string of theft and housebreaking charges taking place in succession. He was sentenced to 5 years and 4 months imprisonment. Justice Cooper ordered the sentence to be served concurrently rather than cumulatively, with an existing term of 12 years and 3 months imprisonment, fully suspended on the conditions of his bail. This was on the ground that if served cumulatively, the resulting sentence would be a substantial amount and unjust. The Appellant argued that in consideration of the seriousness of the crime and the Respondent’s lengthy criminal record, despite the possibility for the sentence to be considered excessive, it is appropriate that the present sentence is to be served partially cumulative to the previous sentence. The Appeal was allowed.

19. The Crown submits Count 3 as the head sentence and accordingly recommended the starting point should range from 18 – 24 months imprisonment. For the Defendant’s early guilty plea, a deduction of 6 months was conceded, resulting in a final sentence of 12 to 18 months imprisonment. For Count 1, the Crown submitted 9 months imprisonment and for Count 2, it considered 3 months imprisonment appropriate and for both counts to be served concurrently with Count 3.
20. It was suggested that in line with the principle of totality, this sentence should be made partially cumulative to the sentence the Defendant is currently serving by adding 12 months from this sentence to that sentence.
21. The Crown sought for all illicit drugs and utensils subject of these proceedings to be destroyed and all cash seized be forfeited to the Crown.

Pre-Sentence Report

22. The Defendant is the seventh of seven children. Both his parents are deceased. He completed 4^th form at Tonga College and was suspended for violating school rules. He enrolled at Liahona High School’s Tech program but unfortunately did not complete the program. He is a member of the Free Wesleyan Church.
23. He has been married twice with 6 children in total. He has spent a lot of time at Hu’atolitoli Prison for drug related offences. This has impacted his family life whereby he was no longer living with any of them. He is currently in custody for receiving stolen property.
24. He pleaded guilty and suffers from gout.

Starting Point

25. The maximum statutory penalty for:
    1. The possession of illicit drugs in the relevant amount is a fine not exceeding $10,000 or imprisonment not exceeding 3 years or both;
    2. Unlawful possession of utensils is also a fine not exceeding $10,000 or imprisonment not exceeding 3 years or both; and
    100. Attempted destruction of evidence is 15 years imprisonment.
26. I agree with the Crown that Count 3, the charge for attempted destruction of evidence, ought to be treated as the head offence.
27. Having regard to the seriousness of the offending; his possession of equipment and class A drugs that deem him as a user and supplier of drugs; the attempt to destroy evidence thereby concealing his criminal activity; principles of punishment and deterrence for those involved in the use and supply of what has been considered a menace in the society and the comparable sentences referred to above, I set the following starting points of imprisonment:

(a) Count 1 - 9 months;

(b) Count 2 – 3 months; and

(c) Count 3 – 24 months.

28. For his early guilty plea, I deduct 3 months from Count 1, 1 month from Count 2 and 6 months from Count 3. Resulting in a final sentence of 6 months imprisonment for Count 1, 2 months imprisonment for Count 2 and 18 months imprisonment for Count 3. Counts 1 and 2 are to be served concurrently to Count 3.
29. Given this offending is distinct from the offending in CR 8 of 2023, coupled with the Defendant’s recidivism, a concurrent sentence is not appropriate. However, in account of the principle of totality, I consider it appropriate to add 12 months of this sentence to be served cumulative to the sentence imposed on him in CR8/2023. It means that the Defendant will be serving an aggregate of 2 years imprisonment for both convictions.

Result

30. The Defendant is convicted and sentenced on:
    1. Count 1 – to 6 months imprisonment.
    2. Count 2 – to 2 months imprisonment; and
    100. Count 3 – to 18 months imprisonment.
31. Sentences imposed under Counts 1 and 2 shall be served concurrently to the sentence imposed in Count 3.
32. Consistent with the sentencing principle of totality, I add 12 months of the sentence imposed for Count 3 here, to the Defendant’s sentence in CR 8/2023 to commence at the completion of the time ordered to be served in that matter.
33. The period of suspension and conditions in CR 8 of 2023 is preserved. The Defendant should take the opportunity that a suspended period offers to rehabilitate himself. He may not be afforded such opportunity in future.
34. I also order, for:
    1. All of the illicit drugs and utensils subject of these proceedings to be destroyed pursuant to section 32(2) of the Illicit Drugs Act; and
    2. All cash seized is to be forfeited to the Crown, pursuant to section 33 of the said Act.
       

NUKU’ALOFA	P. Tupou KC
6 December, 2023	ACTING LORD CHIEF JUSTICE

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^[1] Exhibit 1
^[2] Exhibit 4
^[3] Exhibit 7
^[4] Exhibit 5
^[5] Exhibit 6