R v Po'oi [2023] TOSC 63; CR 203 of 2021 (30 November 2023)

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

CR 203/2021

REX
-v-
Sione Po’oi

Sentencing remarks

BEFORE : THE HONOURABLE COOPER J

Counsel : Mrs. A. Aholelei for the Prosecution
Mr. Po’oi was self-represented

Date of : 30 November 2023

1. On 5 October 2023 Mr. Sione Po’oi was convicted, following trial before Judge sitting on his own on the single count indictment he faced, namely.
   

Engaging in dealings with another person for the transfer of illicit drugs, contrary to section 4(b) of the Illicit Drugs Control Act.

Namely

Sione Po’oi of Halaleva on or about July-August 2021, at Tongatapu, he did knowingly and without lawful excuse engage with another person for the transfer of a Class A illicit drug, when he engaged with Andrew Motuliki to transfer 437.94 grams of cocaine to him from Vava’u.

2. Mr. Po’oi is the 12^th defendant to be sentenced for being significantly involved in the scheme to possess and or distribute a portion of a salvaged shipment of cocaine washed up in Vava’u in 2021.
3. Some consideration to the back ground of the sentencing tariffs already imposed must be noted in order to demonstrate consistency and fairness in the instant case.
4. In arriving at the starting points for the below defendants the following matters were considered.
5. The sentences for the two co-defendants sentenced by Lord Chief Justice Whitten KC; R v Cox & Cox, Cr 153 and 157 of 2022, and his approach in their cases.
6. The maximum sentence for an offence under this section is a fine not exceeding $1,000,000.00 or to imprisonment for any period up to life, or both.
7. Cocaine is a Class “A” drug. The attitude of these Courts when sentencing for Class A drug possession and supply has been to take as their starting point the guidance of the New Zealand Court of Appeal in the case of Zhang v R [2019] NZCA 507.
8. That case set the following sentencing bands:

band one: less than five grams - community service up to 4 years;

band two: less than 250 grams - 2 to 9 years;

band three: less than 500 grams – 6 to 12 years;

band four: less than 2 kilograms - 8 to 16 years;

band five: more than 2 kilograms - 10 years to life.

9. In considering how Zhang guidelines might be appropriate in cases involving cocaine, reviewing the New Zealand Court of Appeal decision in Cavallo v R [2022] NZCA 276, Lord Chief Justice Whitten KC stated:

“...the Court of Appeal considered that ... cocaine is slightly less harmful than methamphetamine and therefore sentencing for like quantities of cocaine should not exceed sentencing for methamphetamine and should generally be slightly below comparable methamphetamine starting points – engaging a discount of around five per cent. I see no reason why a similar approach should not be adopted in Tonga, especially while, as in New Zealand, cocaine use remains comparatively rare.”^[1]

10. Quantity is but only one factor; in considering which band and where, within a particular band, a starting point should be set. Consideration must also be given to the role of an offender.
11. As the New Zealand Court of Appeal did in Zhang v R; (at 10 (f)) and Lord Chief Justice Whitten KC did in R v Cox and Cox, I will go on to turn to the UK Sentencing Council guidance : Drug Offences Definitive Guideline^[2], with the roles divided into ‘leading’, ‘significant’ and ‘lesser’ for further assistance.
12. Mr. Normani Naeata a 15 year starting point was adopted for possession of 3 kilograms of cocaine for this consignment.
13. For Miss Na’a a 10 year starting point was set for the offence of supplying one kilogram of cocaine.
14. Pertinently, Mr. Andrew Motuliki was sentenced for the offence of supplying the 437.94 g to Mr. Sione Po’oi and the starting point of 6 ½ years was the tariff arrived at.
15. In each case, the starting point was then considered in the light of the role each defendant played.
16. Mr. Po’oi was convicted on the basis of his admissions in his statement to police, dated. There was no evidence before the Court that undermined or expanded upon that confession.
17. In that statement he accepted that he knew he was involved in a scheme to bring cocaine to Tongatapu, on behalf of Andrew Motuliki who was to make money from that arrangement. Who was to sell it is not clear. Whilst it may be thought there was bound to be some reward, financial or other in it for Mr. Po’oi, that is not clear either.
18. That said, it is beyond any doubt that in making the plans he did, Mr. Po’oi was instrumental in deliberately causing large quantities of highly addictive Class A drugs into Tongatapu for financial reward, even if not his directly, or at all.
19. When considering the United Kingdom’s Sentencing Council guidelines in assessing culpability this is through an offender’s role. Significant characteristics are Mr. Po’oi’s awareness and understanding of something of the scale of the operation, his function within the chain and that he was aware of the financial motivation that the supplier involved him in.
20. Accordingly, his involvement in this offence whilst it is rightly categorised as a significant role, it falls within the lower end of that bracket, given the limits to those characteristics.

Crown’s submissions

21. Crown advocate filed submissions that acknowledged the sentence of Andrew Motuliki for the reciprocal offence and then considered any appropriate discount.
22. Those features submitted as being aggravating I reject, as they are in fact simply intrinsic parts of the offence itself.
23. As will be seen below, the discount for all mitigating aspects of Mr. Po’oi’s case have been considered along with the appropriate period to suspend and reasons given.

Pre-sentence report

24. The report prepared for Mr. Po’oi was submitted along with a number of references.
25. He is 33 years old, of hitherto good character and works for Tonga gas. He is newly married and his wife 3 month’s pregnant expecting their first child. The prospect of his being sentenced for this offence has put a huge burden on his wife and is a constant source of stress.
26. He is candid about what he did and regrets his involvement.
27. There are a number of positive references; his church priest, his wife, Mr. Charles ‘Ofa and Town Officer Sosefo Kamo, who all similarly describe him as honest and dependable, a changed man; a committed colleague, friend, parishioner and husband. One reference noted that he is the only child to care for his elderly, widowed mother.

Sentence

28. A starting point of 6 ½ years is appropriate in this case. This I reduce by 12 months to reflect his level of involvement, there being no evidence that he would benefit financially and for his previous good character and the positive references on his behalf.
29. That gives a tariff of 5 ½ years.
    

Suspension

30. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
31. Those principles, set out in that case, are so as to promote rehabilitation.
32. The considerations advanced in that case were whether the defendant was young, of previous good character, or passed a long time without offending; whether the defendant would take the opportunity to rehabilitate.
33. Whilst the pre-sentence report does not deal with his risk of harm to the public or likelihood of re-offending, I conclude from the report that in respect of both criteria he is at a low risk given his relative youth, previous good character and remorse.
34. That being the case it is appropriate for a portion of his sentence to be suspended.
35. The sentences passed by this Court on the co-defendants involved portions of each of their sentences being suspended. In no case was that less than 2 years; for example Andrew Motuliki was sentenced to 7 ½ years’ imprisonment, the last 2 years suspended for 2 years or Fe ‘ofa ‘aki Havea was sentenced to 7 years’ imprisonment, the last 2 are suspended for 2 years or Leonati Motulik was sentenced to 7 ½ years’ imprisonment, the last year is suspended for 2.
36. Given the need for parity amongst all co-defendants I conclude that 2 years of Mr. Po’oi’s 5 ½ year sentence ought to be suspended and that should be for 2 years on the following conditions:
    

I not commit any offences punishable by imprisonment;

II report to probation within 48 hours of his release;

III be placed on probation;

IV live where directed by his probation officer; and

V attend and complete a life skills course at the direction of his probation

officer.

37. Three weeks and four days spent on remand must count towards his sentence.
38. All drugs and paraphernalia are to be forfeited and destroyed. All monies seized to be forfeited.
    

NUKU’ALOFA	N. J. Cooper
30 November 2023	J U D G E

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^[1] R v Cox & Cox (ibid) [55.10]
^[2] https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug-offences-definitive-guideline-Web.pdf