R v Kafalava [2023] TOSC 7; CR 26 & 38 of 2022 (18 January 2023)

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

CR 26 & 38/2022

REX
-v-
Motuku Kafalava
Latu Veamatahau

Sentencing remarks

BEFORE : THE HONOURABLE COOPER J
Counsel : Mrs S. ‘Eliesa for the Prosecution
The defendant himself
Date of : 18 January 2023

1. Mr. Kafalava pleaded guilty at arraignment to the three counts that he faced on the joint indictment, two counts of possession methamphetamine; 12.09 g and 0.65 g and possession utensils.
2. On 4^th November 2022 Mr. Veamatahau was convicted after trial on three of the six counts he faced, possession of 12.09 g methamphetamine, possession utensils and failing to comply with a lawful request.
3. The facts are these :
4. On 8^th July 2021 the police received information alleging that Mr. Veamatahau was supplying drugs, from his car, index number C27234.
5. Officers deployed in two vehicles eventually went to Holonga where Mr. Veamatahau car had been spotted, parked on private property.
6. The first vehicle on the scene contained officers Vimahi, front passenger and Vaka driving. Both were in a marked police vehicle, wearing standard issue police uniforms, including body armour that had printed on it front and back “Police”.
7. Officer Vaka drove swiftly to block in Mr. Veamatahau’s car to contain him. At that moment the front passenger door was open and a man stood at the car’s side.
8. Officer Vimahi left his car, moved into position to the front of the target vehicle, shouting out a command to not move as they were police.
9. The man at the passenger door jumped into the car. Immediately Mr. Veamatahau tried to drive off. Officer Vimahi drew his police issue Glock side arm and shot-out a tyre of Mr. Veamatahau’s car bringing it to a halt.
10. Officer Vaka came from his vehicle to detain the driver of the suspect vehicle. He removed him from the driver’s seat and brought him to the ground to control him and secured him with handcuffs.
11. As he did this Mr. Veamatahau tried to reach into his hoody pocket, in so doing two items feel from it; a $50 bill and a black box that landed close to some plants where Mr. Veamatahau was placed on the ground.
12. Other police units attended. Once both men had been detained then a search took place. It was established that Latu Veamatahau was the driver of the car and Motuku Kafalava was the front passenger.
13. The black box that had fallen from Mr. Veamatahau’s pocket to the ground turned out to be a glasses’ case and was seized and placed on the rear of a police vehicle to be searched and photographed. It, along with all other items seized, were entered into the contemporaneously recorded search list.
14. The fale where the car was parked was also searched.
15. From the glasses’ case, 14 dealers bags of methamphetamine were discovered. They weighed a total of 12.09 g.
16. Recovered from within the car two further dealer bags of methamphetamine were seized from under the front passenger seat and another between the two front seats. Together they weighed a total of 0.65 g.
17. A small bottle made or adapted for smoking drugs was seized from the rear far-side passenger door pocket. Two quantities of cash, $55 and a further $120 were also seized.
18. Nothing of significance was recovered from Mr. Kafalava’s person.
19. Inside the car was a machete by the driver’s side and a small knife and a hammer under the driver’s seat.
20. When the police asked them about the contents of the glasses’ case, both Mr. Kafalava and Mr. Veamatahau denied knowledge of what the items were or who they belonged to.
21. Of the two bags of methamphetamine found in the car, Mr. Kafalava volunteered that they were “Ice”, but denied they were his. Mr. Veamatahau denied any knowledge of them.
22. Both men were arrested and taken to the police station. Both declined to answer police questions and exercised their right to silence.
23. On 11^th May 2021 at the arraignment hearing, Mr. Kafalava pleaded guilty in respect to possession of the drugs recovered from the car and also the drugs in the glasses’ case as well as the utensil, the bottle made or adapted as a drugs’ pipe.
24. At the conclusion of his trial, Mr. Veamatahau was convicted in respect of the drugs that were recovered from the glasses’ case that fell from his pocket, possession of the bottle adapted or made as a drug’s pipe and failure to comply with a lawful request, namely his driving his car in defiance of Officer Vimahi’s order that he was not to move.

Maximum sentences

25. Possession of Illicit drugs contrary to section 4 (1) (a) (iv) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $1,000,000.00 or to imprisonment for any period not exceeding life (sic), or both.
26. Possession utensils contrary to section 5 A, a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.
27. Failure to comply with a lawful request, contrary to section 29 (b) Illicit Drugs Control Act a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.

Sentencing submissions

28. On 4^th November 2022 the Crown were directed to serve their submissions no later than 2^nd December, the defence, no later than 9^th December.
29. In the two months since that order, neither party has filed submissions.
30. This morning both defence and prosecution were told, before the sentencing hearing, what cases I had considered and my preliminary thoughts on sentence and given time to reflect on that.
31. At the start of the sentencing hearing both sides were invited to make any sentencing submissions they had.
32. In the event there was nothing further.

Comparable sentences

Possession methamphetamine

33. R v Mateni; Cr 213/2020. A starting point of 48 months for possession of 8.08 g methamphetamine.
34. R v Kautai Moala CR 148/2020, Lord Chief Justice Whitten KC sentenced the defendant, after trial and upon his conviction for possession of 19.49 g methamphetamine, to 66 months imprisonment, the last 6 suspended and that he complete a drugs awareness course.
35. R v Vaiangina. Possession 19.31 g methamphetamine, precisely the same approach adopted by myself, in that a starting point of 66 months was set, before the necessary reduction for a guilty plea and mitigation.
36. When I consider those sentences and how they sit either side of the amount I am concerned with in the instant case, I come to the view that for possession of 12.09 g methamphetamine, the correct starting point is one of 54 months.

Possession utensils

37. 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.
38. 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.

Failure to comply with a lawful request

39. R v Latu 289/2020 & 92/2021. Lord Chief Justice Whitten KC imposed a sentence of 9 months’ imprisonment for each of the two counts of failure to comply with a lawful request.
40. The facts of CR 289/2020 are instructive as it was an incident where officers had ordered the defendant to stop his car, but proceeded to drive it at the police officers and they were forced to discharge their side-arms at the defendant’s car to try to bring it to a stop.

Mr. Kafalava

41. He has previous convictions for housebreaking and theft. He was convicted before this Court in October 2021 of murder.

Pre-sentence report

42. A pre-sentence report was prepared for his last sentence and I repeat here what was stated therein.
43. He is 25 years old now and described as growing up in an unstable environment. His mother abandoned him when he was young and his father had already left the family home. His grandparents brought him up. But when he discovered their true relationship to him it left him detached and he started to withdraw.
44. As for education he only has 4 years of high school having dropped out twice.
45. When asked about this offence he stated he did not want to talk about it. He apparently appeared to be in his own world during the interview with probation. Asked about his feelings towards the victim, he simply smiled.
46. The town officer of Kolonga described him as a very challenging young man.

Sentence

47. Mr. Kafalava pleaded guilty at arraignment and as such he is entitled to maximum credit, 30 %, that is a reduction of 16 months to 38 months.
48. Count 2, possession 0.65 g methamphetamine. When I consider the sentence of 9 months (fully suspended) that Lord Chief Justice Whitten KC imposed in R v Latuselu CR 328/2020 for possession of 0.70 g methamphetamine following a plea, it suggests a starting point of 12 months for that weight of illicit drug.
49. A 30 % discount would then give a sentence of 9 months.
50. For possession of utensil, the bottle converted or adapted for use 6 months, reduced by 30 % to 4 months.

Consecutive or concurrent sentences

51. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
52. In the case of count 2 and the additional 0.65 g methamphetamine that Mr. Kafalava possessed I am not prepared to simply say these were like offences and occurred at the same time so should attract concurrent sentences.
53. I quote from Lord Chief Justice Whitten KC in the case of R v Latu :

The Court’s repeated stance on illicit drugs, particularly methamphetamines,

and the approach taken to sentencing, may be summarized as follows:

(a) methamphetamine is a scourge to societies everywhere that has effected

a great deal of harm and misery;

(b) the distribution and use of methamphetamine in Tonga is a significant

government and community concern;

(c) in prescribing a maximum penalty of 30 years imprisonment (and now, for

1 gram or more, life imprisonment), the Legislature has expressed a clear

intention that significant penalties are to be imposed;

(d) therefore, those involved with methamphetamine in any capacity, and

even small amounts, can expect to receive custodial sentences.

In order for the Courts to send a message for deterrence of drug offending, it

ensures that “sentences imposed ... are adequate and effective in denouncing

and punishing such crimes, provide a strong deterrent effect, not just for

individual offenders but also for the general community and those who may

contemplate succumbing to the toxic allure of illegal drugs and also to provide

incentive and opportunity for rehabilitation of those who have succumbed.”

54. Further to the foregoing I add this, the more illicit drugs you possess, the longer your sentence must be.
55. Accordingly the sentence for count 1 and 2 will be consecutive, making a term of 47 months’ imprisonment.

Totality

56. With the prevalence of methamphetamine in the Kingdom of Tonga and the harm it causes and the urgent need to deter and denounce those involved in this trade, when I consider the length of the sentence in the context of the criminality involved, I am quite satisfied that 47 months is in no way excessive.
57. For count 3, possession utensils, that sentence of 4 months I make concurrent to the above sentences.
58. That makes a total of 47 months.
59. Mr. Kafalava is currently a serving prisoner. On 29^th October 2021 he and a co-accused were convicted of murdering Mr. Fanaafi Misifani. A third defendant was convicted of his manslaughter.
60. Mr. Kafalava was sentenced to life imprisonment on 5^th May 2022.
61. It follows from that, this sentence must run concurrently to the term of imprisonment imposed for that offence.

Suspension

62. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
63. Those principles, set out in that case, are so as to promote rehabilitation.
64. 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.
65. Given that Mr. Kafalava tried throughout these proceedings to mislead the court and chose to lie, repeatedly stating that the drugs were his and not Mr. Veamatahau’s (drugs in a glasses’ case that had been seen to come from Mr. Vaematahau’s pocket, by a police officer at the scene), it suggests in the strongest way that Mr. Kafalava is still prepared to be dishonest in relation to this offence and as such shows no signs of being able to rehabilitate.
66. As such I would not have suspended any portion of his sentence.
67. In fact any consideration of this question of suspension is academic as his sentence must run concurrently to the life term he is serving.

Mr. Veamatahau

68. The information concerning his marriage and child I have taken from a pre-sentence report dated July 2019, to which a supplemental report has been attached, served at the beginning of December 2022. He is 24 years old, married and has a daughter about 2 years old.

Pre-sentence report

69. The supplemental report notes he has convictions for common assault, serious bodily harm, theft and housebreaking.
70. Of the instant offence, Mr. Veamatahau denied that the drugs were his, though in the narrative account of the day in question he provided to the Probation officer, he has not offered an explanation why a glasses’ case with over 12 g methamphetamine separated into individual dealer packs was in the pocket of the hoody he was wearing, or why he drove away from the police when they tried to stop him.
71. He told the Probation officer he simply did not commit the offence.
72. Aloisio Finau, the Holonga Town Officer described him as “...one of the most dangerous and disrespectful people in the village.”
73. The probation report states that he makes no contribution to his community and is a source of contention.

Sentence

74. For the offence of possession of 12.09 g methamphetamine, a starting point of 54 months.
75. I note the presence of a machete, knife and hammer in the car. But in the light of the acquittal in respect of the count alleging the use of that vehicle for the supply of illicit drugs, it would be inconsistent to suggest the presence of those items was an aggravating factor. I therefore do not.
76. The methamphetamine was packaged in 14 individual dealer bags and was plainly intended to be sold on. Mr. Veamatahau was obviously in the business of methamphetamine dealing. Because of the statutory assumption under section 4 (2) (b) and given the weight involved, the tariff I have reached already reflects that amount is associated with drug dealing and so to find that the drugs were packaged and prepared for dealing would be ‘double counting’. Therefore I conclude there are no further aggravating factors.
77. Mr. Veamatahau and Mr. Kafalava appear to have worked in concert through the trial, at every stage, with Mr. Kafalava insisting the drugs were his and they had nothing to do with Mr. Veamatahau, with Mr. Kafalava addressing the court at least on one mention hearing to this effect.
78. Mr. Veamatahau, as mentioned above, continues to deny these offences.
79. In terms of mitigation I can find no mitigating factors either to do with the facts of the case or by way of personal circumstances.
80. I therefore conclude that 54 months is the correct sentence after considering any mitigation and or aggravating factors.
81. Likewise, for the offence of possession utensils, a sentence of 6 months.
82. Also, for the offence of failure to comply with a lawful request, a sentence of 9 months.

Consecutive or concurrent sentences

83. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
84. I have reviewed carefully how Lord Chief Justice Whitten KC approached the sentence in R v Latu. The sentences for the two offences of failure to comply with a lawful request he made concurrent with the head sentence.
85. But the overall situation faced in that sentencing exercise was more complicated than a single indictment. The Lord Chief Justice had four indictments to consider.
86. In the first step, whether to make the sentences concurrent or consecutive, he took the head sentence from each of the indictments and made those consecutive.
87. He then made an adjustment to reflect the totality principle.
88. The point being that in R v Latu his focus involved a very different set of considerations as to at which point to make the sentences for failure to comply with a lawful request concurrent or consecutive when the overall picture he faced demanded a different overall approach.
89. Having reflected upon the facts in the instant case, in considering whether it should be a concurrent or consecutive sentence, I conclude the situation is much like sentencing for the offence of offering to bribe a police officer when the officer had arrested someone for a suspected drug offence. The offering to bribe the officer, albeit occurring in close succession to the arrest for suspected drugs and closely related to that offence, arising as it does out of related facts, it merits a portion of that sentence to be made consecutive. This is because at the heart of this offence was the attempt to evade justice, just as when a bribe is offered.
90. That was the approach in R v Nausaimone Kitekei'aho CR 36/2015 where the offence of offering a bribe attracted a 2 year sentence, 1 year of which was added to the head count, possession of cannabis.
91. Rex v Piliote Uasike, CR 161/2019, 14 months imposed for the offence of bribery, 3 of which were made consecutive with the head count; for the offence of possession methamphetamine.
92. The features of the instant offence that are significant are (i) the attempt to evade arrest, (ii) use of the car as a weapon and (iii) driving directly at Officer Vimahi.
93. For the offence of possession of utensils I make that sentence concurrent with the sentence for possession of methamphetamine.
94. The sentence for failure to comply with a lawful request, 9 months’ imprisonment, I make consecutive with the sentence of 54 months for possession of methamphetamine.
95. That produces a sentence of 63 months.

Suspension

96. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
97. Those principles, set out in that case, are so as to promote rehabilitation.
98. 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.
99. Given Mr. Veamatahau’s previous convictions, that he continues to deny the offence and that in his pre-sentence report, the Town Officer for his village of Holonga, described him as “...one of the most dangerous and disrespectful people in the village.” I conclude that Mr. Veamatahau shows no signs of being able to rehabilitate and has no wish to.
100. I therefore decline to suspend any portion of his sentence.

Totality

101. In R v Selupe [2021] TOSC 47; at [25] Lord Chief Justice Whitten KC considered the totality principle and its aims :

“The totality principle requires the court to have regard to the totality of the

offending, particularly where the offences are a series of related offences. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the

process to consider whether the aggregate figure represents a proper period of

incarceration to be imposed for the total criminality involved: McDonald v The

Queen [1994] FCA 956; (1994) 48 FCR 555 at 563.”

102. Having carefully reflected on the fact that when committing the offence of failure to comply with a lawful request, Mr. Veamatahau used the car he was driving as a weapon and drove directly at Officer Vimahi, I am quite sure that a term of imprisonment of 63 months ( 5 years and 3 months) is in no way excessive for that offence and the offence of possession of the 12.09 g methamphetamine.

Forfeiture and destruction orders

103. All drugs and paraphernalia to be forfeited and destroyed. All monies seized to be forfeited.

Result

104. Mr. Kafalava is sentenced to 47 months’ imprisonment to be served concurrent to his life sentence.
105. Mr. Veamatahau 63 months’ imprisonment, no portion of which is suspended.
     

N. J. Cooper
J U D G E

NUKU’ALOFA
18 January 2023