R v Tongia [2024] TOSC 100; CR 171 & 166-168 of 2024 (21 November 2024)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 171 & CR 166-168 of 2024

BETWEEN:

REX

-Prosecution

AND:

[1]‘INOSI TONGIA

[2] SEMISI ‘INISI

[3] VATIKANI FIFITA

[4] POUSIMA VAIOLETI

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution

Mr O Tongia in Person

Mr S ‘Inisi in Person

Mr V Fifita in Person

Mr P Vaioleti in Person

Date: 21 November 2024

THE CHARGES
CR 171 of 2024 Rex v ‘Inosi Tongia

1. On 12 November 2024, the Accused pleaded not guilty to Count 3 in which the Crown has discharged given his guilty plea to the following charge
   1. Count 4: Possession of an Illicit Drug (0.60g of methamphetamine) contrary to 4(1)(a)(iii) of the Illicit Drug Control Act.
      

CR 166 of 2024 Rex v Semisi ‘Inisi

2. On 14 September 2024, the Accused pleaded guilty to the following charge
   1. Count 6: Unlawful Possession of Utensils (1 smoking pipe and 1 part of a straw) contrary to section 5A of the Illicit Drugs Control Act
      

CR 167 of 2024 Rex v Vatikani Fifita

3. On 14 September 2024, the Accused pleaded guilty to the following charge
   1. Count 7: Unlawful Possession of Utensils (1 smoking pipe) contrary to section 5A of the Illicit drugs Control Act
      

CR 168 of 2024 Rex v Pousima Vaioleti

4. On 21 October 2024, the Accused pleaded guilty to the following charge
   1. Count 9: Unlawful Possession of Utensils (3 empty packs) contrary to section 5A of the Illicit drugs Control Act.
      

CROWN SUBMISSIONS

5. The Crown included in their submissions received 19 October 2024, a medical report from the Ministry of Health of the injuries sustained by the Complainant.
6. Aggravating and mitigating factors were also submitted with the following caselaw:
   1. R v Holani (CR 65 of 2020)
   2. R v Loto’aniu (CR 66 of 2024)
   100. R v Leka (CR 15 of 2020)
   4. Police v Tapueluelu (CR 158 of 2020)
   5. Police v Teulilo (CR 11 of 2021)
   6. Rex v ‘Akauola (CR 260 of 2020)
   7. Police v Tulahe (CR 266-267 of 2023)
   8. Rex v Mangisi (CR 10 of 2018)
7. The Crown submit for following recommendations for sentence as follows:

CR 171 of 2024 Rex v ‘Inosi Tongia

8. A starting point of 12 months’ imprisonment is recommended, with 3 months deducted to account for mitigation.
9. The Accused is not entitled to any suspension as his committed two offences (the two counts in this matter) during the suspension period of CR 361/2024.
10. A final sentence of 15 months is recommended with no suspension and for the suspended sentence in CR 290 & 296/2024 to commence after his term of imprisonment in this case.
    

CR 166 of 2024 Rex v Semisi ‘Inisi

11. A starting point of 6 months is recommended with 3 months deducted for his guilty plea.
12. For suspension, it is recommended for a fully suspended sentence on the condition that he not reoffend, complete 40 hours of community service and undertake and complete a course on drugs under the supervision of the Probation Office and Salvation Army.
    

CR 167 of 2024 Rex v Vatikani Fifita

13. A sentence of 3 months of recommended to be fully suspended on the conditions that he not reoffend, complete 40 hours of community service and undertake and complete a course on drugs under the supervision of the Probation Office and Salvation Army.
    

CR 168 of 2024 Rex v Pousima Vaioleti

14. A starting point of 6 months is recommended, to be uplifted by 3 months to reflect his repeat offending and breach of suspension in CR 729/23, C Therefore, the appropriate starting point for this Accused is 9 months imprisonment, with 3 months deducted for mitigation.
15. The suspended sentence of 6 months for CR 729/23 is to be reactivated and this current offending occurred during the 1-year suspension.
16. The Accused’s recommended sentence is a total of 12 months’ imprisonment with no suspension.
    

PRESENTENCE REPORT

CR 171 of 2024 Rex v ‘Inosi Tongia

17. A presentence report was received from the Probation Office on 15 October 2024.
18. This report detailed the Accused’s personal history factors in relation to the offending and their recommendation on sentencing.
19. The Probation Officer recommends the Accused serve a custodial sentence and to revoke the suspended sentence in CR 290/23 and CR 296/23 and activate the terms of imprisonment.
20. I take the contents of this report into account in considering the Accused’s sentence.
    

CR 166 of 2024 Rex v Semisi ‘Inisi

21. The Probation Office filed a report on 19 November 2024 stating no submission of a Pre-Sentence Report due to the Accused failing to attend the Probation Office.
22. The Probation Officer further attempted to find the Accused at this village with the assistance of the town officer but was unsuccessful.
    

CR 167 of 2024 Rex v Vatikani Fifita

23. A presentence report was received from the Probation Office on 18 November 2024.
24. This report detailed the Accused’s personal history factors in relation to the offending and their recommendation on sentencing.
25. The Probation Officer recommended a fully suspended sentence on conditions including 100 hours of community service and to complete a course on Drugs and Alcohol with Salvation Army.
26. I take the contents of this report into account in considering the Accused’s sentence.
    

CR 168 of 2024 Rex v Pousima Vaioleti

27. The Probation Office filed a report on 19 November 2024 stating the Accused refused to cooperate with the Probation Officer.
28. The Accused informed the Probation Officer he had a Pre-Sentence Report done before and it did not help him in anyway as he still ended up being sent to prison by the Court.
    

DSCUSSION

29. You all were arrested following the execution of a search warrant on the 10^th of June 2024, some of you were playing ping-pong, others were standing by, still others were seated in a car near the ping-pong table and some fled but were quickly recaptured and arrested.
30. In considering what sentence justice requires I have been helpfully provided with crown sentencing submissions and in some cases a probation report which I have carefully perused.
31. Let me say it once that the possession of quantities of methamphetamine even small quantities in the ordinary way will result in a custodial sentence. That has been the policy of this court for some years. It was well said by my distinguished predecessor Lord Chief Justice Whitten in R v ‘Amusia Mateni CR 213 of 2020 at [16].
32. Methamphetamine is a scourge to society everywhere that has affected a great deal of harm and misery. The distribution and use of methamphetamine in Tonga is a significant government and community concern.
33. In prescribing a maximum penalty of 30 years’ imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed and therefore, those involved with methamphetamine in any capacity even of small amounts can expect to receive custodial sentences.
34. In addition, I have considered the 8 sentencing comparables set out in the Crown sentencing submissions. They are of course helpful guidelines, and I take them into account, but each defendant must be sentenced on the facts and circumstances applicable to him or her.
    

CR 171 of 2024 Rex v ‘Inosi Tongia

35. ‘Inosi Tongia, you are charged in count 3 and 4 of the indictment. Count 3 is that you knowingly destroyed a smoking pipe which you knew was about to be apprehended by the police as being as being used for the smoking of methamphetamine in addition you are charged with Count 4 of having 0.60g of methamphetamine in your possession.
36. In your case, count 3 possession of a smoking pipe is not proceeded with and I enter a plea of not guilty to that Count. You have however pleaded guilty to count 4 namely being in possession of 0.60g of methamphetamine.
37. The offence was committed whilst you were subject to 1-year suspended sentence following the commission of two offences in on the 14^th of May when the court for theft imposed a term of 3 months suspended for 12 months, and the 10^th of June 2024 when for illicit possession of drugs and utensils, 9 months was handed down suspended for 12 months.
38. Those sentences must be activated and served consecutively to the sentence which I now impose for the index offence but concurrently to each other, which is one of 9 months imprisonment.
39. That is to say I take a starting point of 12 months for this current charge and deduct 3 months for your guilty plea.
40. I do not consider appropriate to add any further term for the breach of the suspended sentence but that must be served and consecutive to the sentence I know impose.
41. The upshot in your case is that you serve nine months for this offense and then 9 months for beach of the suspended sentence.
42. The Accused will serve a total is 18 months’ imprisonment in all.
    

CR 166 of 2024 Rex v Semisi ‘Inisi

43. You have pleaded guilty to count 6 of the indictment, namely the possession of a smoking pipe part of a straw which was to be used could be used for the smoking of illicit drugs namely methamphetamine I infer.
44. I am prepared to take a merciful view of your involvement although it is serious and must be marked by a term of imprisonment namely six months which I abate by three months by virtue of your guilty plea that sentence namely 3 months imprisonment is to be fully suspended for two years on conditions that you do not reoffend, that you must also serve 40 hours community service within the period of this of the suspension and that you undertake complete a course offered on drugs under the supervision of the Probation Service and the Salvation Army.
45. Let this be a lesson to you.
    

CR 167 of 2024 Rex v Vatikani Fifita

46. You to be sentenced on count seven of the indictment in your case being in possession of a smoking pipe capable of being used to smoke illicit drugs again in your case I take a merciful view but warn you that any repetition of your involvement in drugs which is likely to be met by a custodial sentence.
47. For this offence I sent it to you to 3 months imprisonment suspended for two years on the condition that you do not reoffend during that period the undertake community service of 40 hours and undertaking complete a course on drugs under the supervision of the probation service at the Salvation Army.
    

CR 168 of 2024 Rex v Pousima Vaioleti

48. You are to be sentenced on count nine of the indictment namely having in your possession three empty packs capable of being used to pack illicit drugs. In your case, I am not able to take a merciful course because of your history of previous offending you have been convicted on six occasions and given every opportunity to reform by the imposition of a suspended sentence on the 9^th of May 2023 for domestic violence a partial suspended sentence on the 26^th of July 2023 for theft and a fully suspended sentence of six months for housebreaking in on the 9^th of August 2024.
49. I take as a starting part for the index offence a term of 6 months’ imprisonment which I discount by 3 months to take account of your guilty plea but the suspended sentence of 6 months imprisonment for which you are now in breach must be activated in full and served consecutively to the sentence I am now imposing.
50. That is 9 Months in total but to be served concurrently to the sentence of 24 months which I imposed on you in September.
51. The practical effect of the sentence I am imposing has no effect on the term you are currently serving.
52. The reason I do not order them to serve them to be served consecutively, is because the index offence is that of a different type and also in an attempt or expectation or hope that you will learn your lesson and move away from the life of crime which you are now serving, so that when you do finish your current sentence of imprisonment, you get to start afresh, otherwise, the Courts will still be here and you will serve a greater and greater term of imprisonment when you return.
53. I do not consider it appropriate to add a further term by reason of the fact that that earlier suspended sentence was committed whilst you were on bail for this matter and so the total sentence you must serve is nine months imprisonment.
    

FINAL RESULT
CR 171 of 2024 Rex v ‘Inosi Tongia

54. For Count 4 of Possession of an Illicit Drug, I impose a sentence of 9 months imprisonment for the charge in this indictment. Furthermore, the suspended sentences in are activated amounting to 3 months and 9 months respectively.
55. The two suspended sentences are to be served concurrently to each other and consecutive to the sentence of 9 months in this current case.
56. The Accused is sentenced to a total of 18months imprisonment.
    

CR 166 of 2024 Rex v Semisi ‘Inisi

57. For Count 6 of Unlawful Possession of Utensils, I impose a sentence of 3 months imprisonment, fully suspended for 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must complete 40 hours of community service within 2 years
    100. You must complete a course on Drug Awareness under the supervision of the Probation Office and the Salvation Army.
         

CR 167 of 2024 Rex v Vatikani Fifita

58. For Count 7 of Unlawful Possession of Utensils, I impose a sentence of 3 months imprisonment, fully suspended for 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must complete 40 hours of community service within 2 years
    100. You must complete a course on Drug Awareness under the supervision of the Probation Office and the Salvation Army.
         

CR 168 of 2024 Rex v Pousima Vaioleti

59. For Count 9 of Unlawful Possession of Utensils, I impose a sentence of 3 months imprisonment for this current case. The suspended sentence in CR 729/23 is also activated to a total of 6 months imprisonment.
60. The Accused is to serve a total of 9 months imprisonment.
61. This sentence is concurrent to his sentence in CR 187/23 in which I sentenced him to 24 months imprisonment with the last 4 months suspended on 5 September 2024.
    
62. In addition, I make the appropriate orders for the destruction of all illicit drugs and utensils in these proceedings pursuant to section 33 of the illicit drugs control act and for all cash seized is to be forfeited to the crown which amounts to $595TOP and $280NZD and $220AUD.
    

NUKU’ALOFA

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

21 November 2024