R v 'Ala [2023] TOSC 61; CR 111 & 113 of 2023 (14 December 2023)

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

CR 111 & 113/2023

REX

-v-
Sione ‘Ala

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Mrs. A. Aholelei for the Prosecution
The defendant for himself
Date of: 14 December 2023

1. Mr. Sione ‘Ala is before the Court to be sentenced in relation to two sets of offences involving possession methamphetamine, cannabis and drug paraphernalia.
2. The first is in respect of offences committed on 6 March 2023. He was caught in possession of 0.71 grams methamphetamine, 1.25 grams cannabis and drug utensils; straws and empty packets, both associated with using illicit drugs.
3. The circumstances of the police arresting Mr. ‘Ala were that they had received information that led them to where he had parked his motor vehicle, outside the TCC company buildings. He was in the driver’s seat and there was another man in the front passenger seat.
4. This man appears to have tried to smash the test tube he was holding to frustrate their investigations. Mr. ‘Ala was taken from the vehicle and found on his person was a single packet of methamphetamine and one packet containing the cannabis. A further packet of methamphetamine was recovered from the vehicle, $116.00 from Mr. ‘Ala and a further $100 found in the vehicle were also seized.
5. Then, whilst he was on bail for those offences, he was caught again by police on 11 May 2023, once more in a motor vehicle, in possession of methamphetamine, cannabis and drugs utensils.
6. This time outside a restaurant in Ma’ufanga, he was the passenger of the car in question and in possession of:

12 packs of methamphetamine found inside the plastic box weighing 1.05 grams.

1 pack of methamphetamine found in between the front passenger and driver seats weighing 0.34 grams.

1 pack of methamphetamine found under the front passenger seat weighing 1.04 grams.

7. The driver of the vehicle present was detained searched and seemingly involved in these offences too. She need not concern us at this stage. What is of relevance is that 10 packets of cannabis weighing 2.89 grams as well as a test tube, straw, scales and a further 48 further empty dealer packs that were also all recovered.
8. A total of $586.00 was also seized.
9. To these offences Mr. ‘Ala also pleaded guilty at his arraignment.

Previous convictions

10. The Defendant was convicted in CR 468/2020, in the Magistrate Court, for the possession of illicit drugs. He was sentenced on 7 August 2020, to pay a $300 fine within a week, or serve 6 months of imprisonment.
11. The Crown made these submissions
    • First set of offences

AGGRAVATING FEATURES

(1) The Defendant is not a first-time offender under the Illicit Drugs Control Act.
(2) The Defendant committed the offence of CR 113/23 whilst on bail for this matter.
(3) Methamphetamine, cannabis and utensils were found at the same time, implying a serious presumption that it was intended for use.
(4) The Defendant is presumed a supplier pursuant to section 4(2)(a) of the Illicit Drugs Control Act.
(5) Lying during his Pre-Sentence Report interview by telling his Probation Officer that this was his first court appearance and does not have any previous criminal record.

MITIGATING FEATURES

(1) The Defendant’s guilty plea.

1. RELEVANT LEGISLATION

The penalty for possession of a Class A drug in the quantity of less than 1 gram of is in section 4(1)(a)(iii) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $1,000,000.00 or imprisonment for any period not exceeding 3 years, or both.

The penalty for possession of Class B drug in the quantity of less that 28 grams is in section 4(1)(a)(i) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $5,000.00 or imprisonment not exceeding 12 months, or both.

The penalty for unlawful possession of utensils in in section 5A of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $10,000.00 or imprisonment for a term not exceeding 3 years or both.

2. SENTENCING COMPARABLES

The Crown submits the following cases in order to assist the Court in determining an appropriate sentence for the Defendant.

(1) Police v Titali To’ia, CR 103 – 104/2021

1. The Defendant pleaded guilty to possession of 0.75 grams of methamphetamine.
2. The Defendant was a first-time offender and he cooperate with the Police.

100. The Defendant had no mitigating factor.

4. The Defendant was sentenced to 9 months but to be fully suspended for two years and to perform 80 hours of community service.

(2) R v ‘Alapasita Sakopo, CR 145/2018

1. The Accused was charged with possession of 0.72 grams of methamphetamine.
   
2. The Accused pleaded not guilty and was tried before Justice Cato.
   

100. The Accused was a first-time drug offender.
     

4. Justice Cato found the Accused guilty and sentenced her to 10 months imprisonment but to be fully suspended on conditions.
   • (3) Police v ‘Asaeli Teulilo, CR 11/2021
     
   1. The Defendant was charged with possession 0.70 grams of methamphetamine.
      
   2. The Defendant pleaded not guilty but and was convicted after a contested trial.
      
   100. The Defendant is drug repeat offender and did not have any mitigating factors.
        
   4. The Defendant was sentenced to 12 months imprisonment with the final 6 months suspended on conditions.

3. CROWN’S POSITION ON SENTENCING

The Crown respectfully submits that based on the offending and the relevant authorities cited it is appropriate to impose a Custodial Sentence.

The Crown submits that Count 2 is made the Head Sentence.

In consideration of the relevant authorities and the features of this case, the Crown submits a starting point of 18 months imprisonment for Count 2.

For the Defendant’s guilty plea, it is submitted that 6 months is deducted from the starting point.

In consideration of Mo’unga v R (1998) Tonga LR 154 at 157, the Crown submits that the Defendant is not entitled to a suspended sentence. He is not a young offender and has a previous conviction under the Illicit Drugs Control Act. He also did not cooperate with the Police. There was no diminution of culpability because the Defendant lied to the Probation Officer about his criminal conviction. The Defendant did not use the opportunity of his non-custodial sentence to rehabilitate himself. Instead, he re-offended on a much serious case.

The only factor favouring a suspended sentence is his guilty plea. However, it is submitted that this factor has been recognized in his mitigation and is still outweigh by the other factors in Mo’unga v R, that he does not qualify for.

In relation to Count 3, 5 months imprisonment is recommended and for Count 4 a sentence of 2 months imprisonment. These sentences are to be served in concurrent to Count 2.

Therefore, the Crown submits that the Defendant should serve a sentence of 12 months imprisonment with no suspension. Furthermore, it is submitted that 6 months from this sentence is added cumulatively to his imposed sentenced of CR 113/23.

• In respect of the second set of offences the Crown made the following submissions

AGGRAVATING FEATURES

(6) The Defendant committed the offences in the instant case in May, whilst on bail for CR 111/2023 in the Magistrate Court;
(7) He has a previous conviction for drug offending in CR 468/2020;
(8) The existence of the various utensils^[1], various drug types^[2], cash^[3], the circumstances of the drugs readily packaged^[4], the circumstances of being mobile in a vehicle, the overall quantity of the methamphetamine and the support of the legal presumption^[5], all undoubtedly indicate that the Defendant was one half of a drug supply operation;
(9) The Defendant’s consistent drug re-offending illustrates a blatant disregard to the law, and a serious inability of self-rehabilitation.

MITIGATING FEATURES

(2) The Defendant pleaded guilty at the earliest opportunity.

IV. RELEVANT LEGISLATION

7. The penalty for possession of a Class A drug in the quantity of 1 gram or more, is a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life, or both^[6].
   
8. The penalty for possession of a Class B drug in the quantity of less than 28 grams is a fine not exceeding $5,000 or imprisonment for any period not exceeding 12 months, or both^[7].
   
9. The penalty for unlawful possession of utensils is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both^[8].
   

V. SENTENCING COMPARABLES

10. The Crown submits the following cases in order to assist the Court in determining an appropriate sentence for the Defendant.
    
    • (4) Rex v Kalafitoni Toluta’u CR 100/2020
      1. The Defendant was convicted after a contested trial for the possession of 2.80 grams of methamphetamine. The Defendant had a previous conviction for robbery which he had already served. The Crown proposed a starting point of 2 years and 6 months imprisonment and proposed that there were no mitigating features to assist in any deduction of that starting point. Justice Niu accepted the Crown’s submission and sentenced the Defendant to an unaffected total operative sentence of 2 years and 6 months imprisonment. The Defendant was not given any suspension.
         
    • (5) Rex v Pangi Puloka CR 256/2020
      1. The Defendant was convicted in two separate proceedings after contesting both trials. He was convicted in CR 126 for the possession of 0.2 grams of methamphetamine and 1.48 grams of cannabis. He was convicted in CR 256, for two charges of possession of 4.34 grams and 2.17 grams of methamphetamine.
         
      2. The charge for the 4.34 grams of methamphetamine was the head sentence, where the Defendant was sentenced to 3 years imprisonment. A sentence of 1 year and 6 months imprisonment was imposed for the 2.17 grams of methamphetamine, served concurrently with the head sentence. That Defendant was not awarded any suspension.
         
    • (6) Rex v ‘Emeline Ha’isila CR 22/2022
      1. The Defendant pleaded guilty to the possession of 2.43 grams of methamphetamine, and utensils (2 weighing scales, 1 test-tube, 3 straws and 766 empty packs). The Defendant had previous convictions for drug offending and had committed these offences whilst on a fully suspended sentence for a drug matter.
         
      2. A starting point of 2 years and 6 months imprisonment was adopted for the methamphetamine charge. That starting point was further increased by 6 months on the presumption of supply based on the quantity of drugs seized, resulting in 3 years imprisonment. An aggregate of 6 months was deducted for mitigation leaving a sentence of 2 years and 6 months imprisonment.
         
      100. A starting point of 1-year imprisonment was adopted for the utensils. An aggregate of 2 months was deducted for mitigation, leaving a sentence of 10 months imprisonment, served concurrently to the methamphetamine charge. The final 9 months of the sentence was suspended for 1 year on conditions.
           

Pre-sentence report

12. The report notes that Mr. ‘Ala is 26 years old, married but does not have any children.
13. Whilst he is said to be remorseful, it also notes the he misled the probation officer by denying he had any previous convictions, which were in fact for possession illicit drugs. It also does not deal with the fact that shortly after committing the offences in March, he committed more drugs offences in May 2023.
14. He does not work and relies on his wife’s income from the work she does selling clothing at Talamahu market. She earns some $200 a week.
15. I note that of the aggravating and mitigating features submitted, truly the only aggravating feature is that the second set of offences were committed on bail for the first, which are like offences. The other characteristics submitted are in fact features of the offences themselves.
16. Plainly his guilty pleas are relevant mitigating features.

Sentence

• For the first set of offences

17. For possession 0.71 g methamphetamine a starting point of 12 months, that reduced to 8 for his guilty plea.
18. In respect of possession 1.25 grams cannabis, a starting point of 6 months imprisonment. That reduced to 4 months for his plea. That to be served concurrent to the sentence of possession methamphetamine.
19. For the offence of possession of utensils 6 months reduced to 4 having regard to his guilty plea. That term is to be served concurrent to the sentence of possession methamphetamine.
20. That gives a total sentence of 8 months’ imprisonment.
    • For the second set of offences
21. The head count must be for possession of 2.43 grams methamphetamine. For that a starting point of 2 years and 6 months is appropriate. A reduction of 30 %, which is to say 9 months for his early guilty plea makes a sentence of 1 year and 9 months’ imprisonment.
22. For possession 2.89 grams cannabis a sentence of 18 months, reduced to 12 for his guilty plea, to run concurrent with the head count.
23. For the offence of possession utensils, a sentence of 12 months reduced to 8 to run concurrent with the head count.
24. That gives a total sentence of 1 year and 9 months’ imprisonment.

Consecutive or concurrent sentences

25. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
26. The the second set of offences were entirely separate to the first. As such the sentence for them must run consecutively to the sentence for first set.

Totality principle

27. I have gone on to consider if all or only part of the sentences should run consecutively with one another.
28. The Court notes the prevalence of methamphetamine; the harm it does to individuals as well as society as a whole. I have also gone on to consider that while the offences committed in March 2023 were possibly commercial drug supply, those committed in May plainly where. The amount of money recovered, in combination with the number of individual dealer bags of both cannabis and methamphetamine, the presence of the weighing scales is all revealing. Putting aside the statutory presumption, these offences clearly were ones of commercial drug supply.
29. On this basis I conclude it is appropriate that 1 year and 9 months imprisonment for the May 2023 offences must be served consecutive to the 8 months’ imprisonment for the March 2023 offences.

Suspension

30. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
31. Where the defendant demonstrates that he is remorseful and will rehabilitate then it is appropriate to suspend a portion of the sentence. In this case I note that Mr. ‘Ala pleaded guilty in respect of both sets of offences. Against that he did not tell probation the truth and hid the fact of his previous conviction which was for possession of an illicit drugs.
32. It is also significant that he committed the May offences whilst of bail for those he had committed in March.
33. Both these facts outweigh any seeming remorse the fact of his guilty pleas might speak to.
34. Accordingly, I decline to suspend any portion of his sentence.

Total sentence

35. Mr ‘Ala is to serve a total sentence of 8 month’s imprisonment followed by 1 year 9 months; 2 years and 5 months in total.
36. That is to be back dated to the time of his first remand 11 September 2023.
37. In respect of the March 2023 offences $216.00 is to be forfeited. In regard to the offences committed in May 2023 the monies seized will not be forfeited at this time and no decision will be made until the conclusion of the trial of the co-defendant.
38. All the drugs and paraphernalia from CR 111/2023 are forfeited and must be destroyed.
39. The drugs and paraphernalia the subject of CR 113/2023 will be preserved as evidence awaiting the trial of the co-defendant.
    

NUKU’ALOFA	N. J. Cooper
14 December 2023	J U D G E

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^[1] Test-tubes, a weighing scale and numerous empty packs as charged under Count 5,
^[2] Cannabis and methamphetamine as charged in Count 3 and 4 respectively
^[3] A total of $586 as stated in paragraph 29 of the summary of facts
^[4]1 packs of cannabis and 14 packs of methamphetamine as stated in paragraphs 23-28 of the summary of facts
^[5] s.4(2)(b) of the Act
^[6] s.4(1)(a)(iv) of the Act
^[7] s.4(1)(a)(i) of the Act
^[8] s.5A of the Act.