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R v Napa'a [2023] TOSC 66; CR 120 of 2023 (12 December 2023)

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


CR 120/2023


REX
-v-
Fili Napa’a


Sentencing remarks


BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fifita for the Prosecution
Mr. Corbett for the defendant
Date of: 12 December 2023


  1. On 11 December 2023 Mr. Napa’a trial on a six count indictment was listed. The case was then adjourned to 12 December with directions to Crown for service of their opening note and the arraignment documents in electronic format.
  2. The counts he faced were these:

(Count 1)

Supplying an illicit drug to a child, contrary to section 5C 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 an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act.

(Count 4)

Use of an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act.

(Count 5)

Unlawful possession of utensils, contrary to section 5A of the Illicit Drugs Control Act.

(Count 6)

Possession of ammunition without a licence, contrary to section 4(1) and (2)(b) of the Arms and Ammunition Act.

PARTICULARS OF THE OFFENCES

(Count 1)

Fili Napa’a of Ha’asini, on or about March 2023, at Veitongo, you did knowingly without lawful excuse, supply a Class A drug to a Child, when you gave 0.01 grams of methamphetamine to Peteli Manu who is a child.

(Count 2)

Fili Napa’a of Ha’asini, on or about 8 March 2023, at Veitongo, you did knowingly without lawful excuse, possess a Class B drug, when you had in your possession 329.98 grams of cannabis

(Count 3)

Fili Napa’a of Ha’asini, on or about 8 March 2023, at Veitongo, you did knowingly without lawful excuse, possess a Class A drug, when you had in your possession 0.01 grams of methamphetamine.

(Count 4)

Fili Napa’a of Ha’asini, on or about 8 March 2023, at Veitongo, you did knowingly without lawful excuse, use a Class A drug, when you used 0.01 grams of methamphetamine.

(Count 5)

Fili Napa’a of Ha’asini, on or about 8 March 2023, at Ha’asini, you did knowingly without lawful excuse, possess thirteen empty packets and two test tubes, used for packing and smoking illicit drugs.

(Count 6)

Fili Napa’a of Ha’asini, on or about 8 March 2023, at Ha’asini, you did possess one 9mm ammunition, without a licence.

  1. On 12 December Crown indicated that there had been discussions between the parties and that a plea to count 2 was acceptable.
  2. Mr. Napa’a was re-arraigned and pleaded guilty to count 2. He had pleaded guilty to a further count at his arraignment hearing, 27 September 2023, in relation to possession .22 rifle without a licence.
  3. Those two offences he fell to be sentenced for.

Facts

  1. On or about 8 March 2023, the Police acting on information attended Veitongo where they located Mr. Napa’a in the driver’s seat of his vehicle with two passengers, one front, one rear.
  2. A search of the vehicle led to the following items being seized:
  3. Those discoveries led to a search of Mr. Napa’a’s residence at Ha’asini.
  4. A number of items of relevance were discovered:

Livingroom:

(a) An orange bowl on top of a drawer containing seven empty packets and leaves (Exhibit 1);

(b) Two empty packets (Exhibit 2.1), a test tube (Exhibit 2.2) and one 9mm ammunition (Exhibit 2.3) inside the drawer;

(c) Two empty packets (Exhibit 3) on a table;

(d) A smoking utensil and an empty packet (Exhibit 4);

(e) A test-tube and an empty packet (Exhibit 5);

(f) A test tube (Exhibit 6);

(g) A packet of suspected cannabis (Exhibit 7);

(h) A black trash bag containing cannabis seeds, leaves and branches (Exhibit 8).

Verandah:

(i) Two test tubes (Exhibits 9 & 10)
  1. The Police tested all the items suspected of being cannabis exhibits found in the vehicle and Napa’a’s residence and confirmed they were illicit drugs.
  2. The total weight of illicit drugs found in his vehicle was 345.33 grams of cannabis and 0.01 grams of methamphetamine. Comprised in the following way:
  3. From his home 0.34 grams cannabis:

Statutory maximum sentences

  1. For an offence contrary to section 4 (1) (b) (ii) Illicit Drugs Control Act in respect of a Class B drug in the quantity of 28 grams or more, a fine not exceeding $50,000 or imprisonment for a term not exceeding 7 years or both.
  2. In respect of an offence contrary to section 4 (1) and 2 (b) Arms and Ammunition Act the maximum sentence is a term of imprisonment not exceeding 5 years.
  3. I have borne in mind the Crown’s submission in their indicative sentence document that a term of 24 months’ imprisonment would be appropriate for the illicit drug offence and a term of 12 months concurrent for the offence of possession of a firearm without a licence.
  4. I have taken into account the sentence of Lord Chief Justice Whitten KC in R v Sosiua Totau whereby he imposed a term of 24 months’ imprisonment for possession of 400.37 grams of cannabis.

Previous convictions

  1. Mr. Napa’a has previous convictions for two matters of theft in 2011, sentenced in the Magistrates’ Court to a probation order and suspended sentence of imprisonment.
  2. In 2012 he received fines for two offences dealt with in the Magistrates’ Court; drunkenness and escaping lawful custody.
  3. 2014 a fine for an offence of drunkenness. That same year another fine for an offence of assault, likewise dealt with in the Magistrates’ Court.
  4. 2019 possession of illicit drugs, a fine was imposed in the Magistrates’ Court, no further information is available as to what drug was involved.

Sentence

  1. On count 2 I impose a starting point of 24 months’ imprisonment. That was the first opportunity Mr. Napa’a had to plead guilty on the basis of what the Crown offered today therefore a 30 % discount is appropriate; 18 months.
  2. Count 6 a starting point of 12 months, reduced to 8 for his guilty plea, to run concurrently with the sentence in count 2.

Suspension

  1. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
  2. Those principles are so as to promote rehabilitation.
  3. The considerations advanced in that case 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.
  4. I have taken into account his age, there being only a single drug offence in the past and the fact of his guilty plea.
  5. In this case I consider that 6 months of his sentence should be suspended for 12 months on the following conditions:
    1. he must report to probation within 24 hours of his release;
    2. he must be put on probation;
    3. he must complete a drug awareness course, and
    4. he must not commit any offence punishable by imprisonment.

Total sentence

  1. 18 months’ imprisonment, the final 6 months suspended for 12 months on the above conditions.
  2. His sentence is to be back-dated to 27th September when he was first remanded into custody.
  3. All drugs and paraphernalia are to be forfeited and to be destroyed.
  4. The $20 seized is confiscated.
  5. Count 1, 3 to 5 and 7 no evidence was offered against them and formal not guilty verdicts were entered.
NUKU’ALOFA
N. J. Cooper
12 December 2023
J U D G E

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