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R v Kalisitiane [2023] TOSC 67; CR 101 & 104 of 2023 (15 December 2023)

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


CR 101& 104 of 2023


REX
-v-
Paea Kalisitiane
Fa’onelua Lina Halangahu


Sentencing remarks


BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Samani for the Prosecution.
Both defendants were self-represented.
Date of: 15 December 2023

  1. On the second day of their trial, both defendants pleaded guilty to the counts they faced.

Miss Kalisitiane -

Count 1: Possession of illicit drugs (1.29 grams of methamphetamine);

Count 2: Possession of an illicit drug (0.13 grams of cannabis); and

Count 3: Unlawful possession of utensils (1 empty pack, and 1 piece of straw).


Miss Halangahu –

Count 6: Unlawful possession of utensils (1 ‘bong’ can, 1 piece of straw, and 3 empty packs).

  1. In respect of count 1, that was 5 separate packets of methamphetamine.

Previous convictions

  1. Miss Kalisitiane
  2. Miss Halangahu was of previous good character.
  3. The Crown made these submissions

AGGRAVATING FEATURES

Miss Kalisitiane -

(1) Possession of illicit drugs is a huge issue in the kingdom;
(2) The Accused possessed over 1 gram of a Class A drug;
(3) The Accused was in possession of both Class A and Class B drugs;
(4) For the purpose of sentencing, section 4(2)(b) applies, and the Accused can be described as possessing the illicit drugs for supply. This is based on the amount of methamphetamine.

Miss Halangahu –

(1) She was in possession of utensils capable of being used for storage and use of illicit drugs.

MITIGATING FEATURES

(1) Both Accused pleaded guilty;
(2) Both Accused are first-time offenders;
  1. RELEVANT LEGISLATION
    1. The penalty for possession of a Class A illicit drug over 1 gram is in section 4(1)(a)(iv) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life or both.
    2. The penalty for possession of an illicit drug is in section 4(1)(a)(i) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year, or both.
    3. The penalty for possession of utensils is in section 5A of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $10,000 or to imprisonment for any period not exceeding 3 years or both.
  2. SENTENCING COMPARABLES
  1. The Crown submits the following cases in order to assist the Court in determining an appropriate sentence for the accused.
  1. CROWN’S POSITION ON SENTENCING
  1. Based on the offending and the relevant authorities cited, it is appropriate to impose a custodial sentence. In R v Maile [2019] TOCA 17 at [18], the Court of Appeal held that those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences. To illustrate, the Court cited R v Ngaue (unreported, Supreme Court, CV 6 of 2018, 2 August 2018) at [5] and [6], where Cato J observed:

“This judgment will serve as a warning to those who engage in Tonga with the drug methamphetamine, whether it be for possession only of small amounts or larger amounts, trafficking or supplying it to others, manufacturing, importing, exporting or dealing, in any way, with this extremely dangerous and addictive drug that the courts will sentence offenders to severe punishment. Even for possession of small amounts, offenders can expect to be sentenced to terms of imprisonment. Methamphetamine is a scourge and has effected a great deal of harm and misery on society in countries such as Australia and New Zealand where it has become prevalent in the last couple of decades. It is highly addictive for users, is mind altering and is often accompanied by acts of serious violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for the user to fund the acquisition of the drug. Significant markets are to be found for those who choose to manufacture or import the drug and large profits can be made by criminals who choose to engage in such activity. The courts have responded by imposing very significant penalties on those who engage in this kind of activity."

Miss Kalisitiane -

  1. The Accused was present at the place of offending, and just as she was assisting another person in packing the illicit drug, the Police arrived. She was well aware of the presence of the illicit drug, she knew that it was illicit drug, and as the Police arrived, she put the empty pack and straw into her pants’ back pocket in an attempt to hide it.
  2. The Crown submits that the head sentence is Count 1, and it is submitted in reference to the authorities cited, that the appropriate starting point for the headcount is 18 - 24 months imprisonment.
  3. Given the Accused’s guilty plea on day 2 of the trial, and lack of drug-related offence, a 4-month reduction from the starting point would be appropriate, leaving 14 - 20 months imprisonment.

For Count 2, 1-month imprisonment.

For Count 3, 1-month imprisonment.


  1. It is further submitted that the sentence for Counts 2 and 3 is served concurrently with the sentence for Count 1.

Miss Halangahu -

  1. The Crown submits that an appropriate sentence is 1-month imprisonment.

SUSPENSION

Miss Kalisitiane:

  1. The Accused is young, she is 19 years old. She pleaded guilty although not at the earliest opportunity, but on day 2, her guilty plea can be seen as an expression of remorse and acceptance of the crime she committed. She has recent convictions.
  2. In reference to the criteria set out in Mo’unga v Rex [1998] Tonga LR 154 the Crown is of the view that the Accused should be granted partial suspension.

Miss Halangahu:

  1. The Accused is young, she is 24 years old Similar to Paea, she also pleaded guilty on day 2 of the trial, which can be seen an acceptance of the crime. She does not have any previous convictions. The Crown is of the view that her sentence should be fully suspended.

Final sentence –

Miss Kalisitiane:

  1. The Crown submits that the Accused is sentenced as follows –
    1. Count 1 – 20 months imprisonment.
    2. Count 2 – 1-month imprisonment
    1. Count 3 – 1-month imprisonment
    1. Counts 2 and 3 are to be served concurrently with Count 1.
  2. The last 12 months of the sentence are suspended for 2 years on the following conditions:
    1. Not to commit any offence punishable by imprisonment during the period of suspension;
    2. To be placed on probation;
    1. To live where directed by the Probation Office;
    1. To Attend a life skills program and drugs abuse course under the direction of the Probation Office.

Miss Halangahu:

  1. The Crown submits that the sentence to be imposed on Lina is 1 month, fully suspended on the following conditions –
    1. Not to commit any offence punishable by imprisonment during the period of suspension;
    2. To undertake 40 hours of community work under the direction of the Probation Office;
    1. To Attend a life skills program and drug abuse course under the direction of the Probation Office.
  2. I have gone on to consider the following cases

Methamphetamine possession

  1. R v Hufanga CR 211/2020; where Lord Chief Justice Whitten QC considered the correct starting point was 2 ½ years imprisonment for 2.13 g of methamphetamine.
  2. R v PMP [2020] TOSC 112, possession of 2.12 g methamphetamine attracted a starting point of 2 years’ imprisonment.

Cannabis possession

  1. R v Kolofale CR 166/202 0.75 g cannabis, 40 hours community service order.

Possession utensils

  1. R v Mahina & Wight, 93-94/2022. Mr. Wight was sentenced for possession of 4 straws, 3 sets of scales, a test tube and 112 dealer bags. The court adopted a starting point of 1 year, having considered R v Ha’isila CR/ 22/2022.
  2. R v Namoa, Sekona & Finau 58, 59 & 61/ 2022 for 4 empty snap bags, and both counts of possession of a single test tube, a starting point of 6 months.
  3. For their late guilty pleas some credit should be given. The system this Court adopts is to give a defendant a 30% discount for a guilty plea at the first available opportunity. There is then a sliding scale reducing to 10% on the day of trial. Both Miss Kalisitiane and Miss Halangahu pleaded towards the end of the prosecution case during their trials.
  4. That entitles them to no more than a 5% reduction of their starting points.
  5. As for the issue of the aggravating and mitigating features, whilst their pleas of guilty albeit late are mitigating factors and Miss Halangahu’s previous good character, there do not appear to be any aggravating features. The characteristics the Crown allude to, insofar as any is relevant, they form features of the offences before the Court.

Count 1 a starting point of 24 months, reduced to 23 for her guilty plea.

Count 2, no separate penalty.

Count 3, 6 months imprisonment concurrent with count 1.

Count 6, 6 months imprisonment, reduced to 5 for her guilty plea.

Suspension

  1. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
  2. Those principles, set out in that case, 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.

Miss Kalisitiane

  1. I have had the opportunity of not only the information concerning Miss Kalisitiane’s previous convictions, but seen her in court. She has, at every hearing, treated the proceedings as if they were a joke, laughing and making light of her criminal behaviour.
  2. Her pleas of guilty came during her trial. It is also noteworthy that in her police interview she fully admitted to helping others fill the individual bags of methamphetamine. In other words, her being convicted was inevitable and it is a wonder she pleaded not guilty at all.
  3. That said, I have decided the last 12 months of her sentence will be suspended for 12 months on the following conditions
    1. She must attend probation within 24 hours of her release
    2. She must be placed on probation
    3. She will live where she is directed by her probation officer
  4. She must not commit any offence punishable by imprisonment.
  5. If she breaches any condition she will be re-sentenced.
  6. Her sentence is back-dated to her first remand on 14 September 2023.

Miss Halanghu

  1. She is sentenced to 5 month prison term suspended for 12 months.

Conditions of her suspended sentence are


  1. She must attend probation by noon today, 15 December
  2. She is to be placed on probation
  3. She is to complete 40 hours community service
  4. She must not commit any offence punishable by imprisonment
  1. She was warned that any breach would almost certainly lead to her being re-sentenced and serve the custodial term of her sentence.
  2. I reserve any breaches by either defendant to myself.
  3. All drugs and paraphernalia are forfeited and must be destroyed.

Total sentences


Miss Kalisitiane


  1. 23 months’ imprisonment the last 12 suspended for 12 months on the above conditions, back dated to 14 September 2023.

Miss Halangahu


  1. 5 months’ imprisonment suspended for 12 months on the above conditions.
NUKU’ALOFA
N. J. Cooper
15 December 2023
J U D G E

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