R v Fukofuka [2024] TOSC 102; CR 65 of 2024 (29 November 2024)

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

CR 65 of 2024

BETWEEN:
REX
-Prosecution

AND:
IRVIN FUKOFUKA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr A Fisi’iahi for the Crown Prosecution
The Accused in Person
Date: 29 November 2024

THE CHARGES

1. On 22 May 2024, the Defendant pled guilty to the following charges:
   1. Count 2: Unlawful Possession of Utensil, contrary to section 5A of the Illicit Drugs Control Act.
      

CROWN SUBMISSIONS

2. The Crown submitted their sentencing submissions on 24 June 2024 to assist the Court.
3. Aggravating and Migitaging factors were submitted together with the following caselaw:
   1. R v Samiuela Fiefia, CR 131 of 2021
   2. R v Siu Holani, CR 65 of 2020
   100. R v Maika Namoa, CR 58 of 2022
4. A starting point of 6 months is maintained by the Crown Prosecution, and they withdraw their submission that the Accused was in breach of a prior suspended sentence.
5. Crown submit the appropriate sentence for the Defendant is 6 months’ imprisonment as imposed to the initial 10-month imprisonment with no suspension filed in their submissions
   
   2. PRESENTENCE REPORT
6. The probation office filed a Pre-Sentence Report detailing the Accused’s personal history, background and factors in relation to the offending.
7. The Probation Officer submits that a custodial sentence is appropriate for the Defendant together with any sentence the court deems appropriate.
8. I take account of the Defendant’s Pre-Sentence Report in considering his sentence.
   

DISCUSSION

9. It is unfortunate that this matter has been dragged on in the way that it has. Today, I sentence you for one count of possession of unlawful utensils.
10. I bear in mind that each case must be decided on its own merits to which I have done here, with consideration to the caselaw that has been helpfully submitted by the Prosecution.
11. I have it in mind to sentence you to 6 months in which you have already served given that you have been in custody for this matter since May.
    

FINAL RESULT

12. For Count 2 on the unlawful possession of utensils, I impose a sentence of 6 months imprisonment to which time has already been served.
13. I further order under section 32(2)(b) of the Illicit Drug Control Act that the utensil seized in this proceeding is destroyed.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
29 November 2024