R v Tu'ipulotu [2024] TOSC 104; CR 133 & 134 of 2024 (29 November 2024)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 133-134 of 2024

BETWEEN:

REX

-Prosecution

AND:

[1]PELETO TU’IPULOTU

[2] LAVINIA ‘OTUAFI

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Fifita for the Crown Prosecution

Mr P Tu’ipulotu in Person

Ms L ‘Otuafi in Person

Date: 29 November 2024

THE CHARGES
CR 133 of 2024 Rex v Petelo Tu’ipulotu

1. On 21 October 2024, before the trial was about to commence the Accused requested to be re-arraigned and pleaded guilty to the following:
   1. Count 1: Possession of an Illicit Drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
   2. Count 3: Attempt to Destroy Evidence, contrary to section 37A(2) of the Illicit Drugs Control Act.
2. The Accused was also charged with Count 2 & 4, however these charges were withdrawn by the Prosecution given his guilty plea to Count 1 & 3.
   

CR 134 of 2024 Rex v Lavinia ‘Otuafi

3. On 27 August, the Accused pleaded guilty to the following charges:
   1. Count 4: Unlawful Possession of Utensil, contrary to section 5A of the Illicit Drugs Control Act.
   2. Count 5: Possession of an Illicit Drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act.
      

CROWN SUBMISSIONS

4. The Crown filed their sentencing submissions on 25 November 2024 to assist the Court.
5. Aggravating and mitigating factors were also submitted with the following caselaw:
   1. R v Namoa (CR 58 of 2022)
   2. R v Loto’aniu (CR 66 of 2024)
   100. R v Teulilo (CR 266 of 2020)
   4. Rex v Maile (CR 133 of 2019)
   5. R v Manu (CR 152 of 2018)
   6. State v Bulitavu - Sentence [2022] FJHC
   7. R v Tu’ifua (CR 266-267 of 2023)
   8. R v Afimeimounga [2024] TOSC 9
   9. R v Rodney Toki AC 19 of 2022
6. The Crown submit for following recommendations for sentence as follows:

CR 133 of 2024 Rex v Petelo Tu’ipulotu

7. The appropriate starting point for the Accused in Count 1 is 18 months, uplifted by 6 months given the seriousness of his offending. To account for his late guilty plea, 6 months is deducted resulting in 18 months imprisonment.
8. For Count 3, 9 months imprisonment is recommended to be served concurrently to Count 1.
9. The Accused is not entitled to any suspension and should therefore be sentenced to a total of 18 months imprisonment.
   

CR 134 of 2024 Rex v Lavinia ‘Otuafi

10. Count 5 is recommended as the headcount with a starting point of 12 months imprisonment. For her mitigating factors, 6 months is deducted.
11. The Crown recommend the remaining 6 months is fully suspended for two years on conditions.
    

PRESENTENCE REPORT
CR 133 of 2024 Rex v Petelo Tu’ipulotu

12. A presentence report was received from the Probation Office on 27 November 2024, attached with a previous presentence report for the Accused on a previous matter in 2021.
13. The report goes through the Accused’s personal history, criminal records, factors in relation to the offending and their recommendation on sentencing.
14. The Probation Officer recommends the Accused be given a imprisonment sentence that is partly suspended on the following conditions; to be placed on probation, to reside and work where directed by the probation officer, not to commit any offence punishable by imprisonment, not to associate with any known drug offenders and to complete a course on drug awareness, life skills and anger management as directed by the probation officer.
    

CR 134 of 2024 Rex v Lavinia ‘Otuafi

15. A presentence report was received from the Probation Office on 26 November 2024.
16. This report detailed the Accused’s personal history, factors in relation to the offending and their recommendation on sentencing.
17. The Probation Officer recommends the Accused serve a community work sentence including conditions of; being placed on probation, not to commit any offence punishable by imprisonment, not to be associated with the co-Accused unless agreed by the Probation Officer on reasonable grounds, complete community work at Ha’apai under the direction of the Probation Officer and to undertake counselling as directed by the Probation Officer.
18. I take the contents of this report into account in considering the Accused’s sentence.
    

DISCUSSION

19. I make it clear that I have taken into account the previous convictions of both Accused and the comparable cases helpfully submitted by the Prosecution although each case must be decided on its own facts.
    

CR 133 of 2024 Rex v Petelo Tu’ipulotu

20. You pleaded guilty to possession of 1.34g of methamphetamine, you’ve pleaded not guilty to supplying drugs, but you have
21. I am satisfied that the circumstances of your arrest and the amount of money found on your person, enable me to draw the inference that you were in fact a low-level supplier of drugs.
22. I impose a starting point of 18 months’ imprisonment, you have bad criminal record, and you have committed offences immediately after your release from prison, that obliges me to uplift your sentence in accordance with the statute and I do so that you now serve a sentence of 2 years imprisonment.
23. You are not young, you have previous convictions and in your case the prospects of rehabilitation are bleak and for that reason you will serve a full 2-year imprisonment.
24. In relation to Count 3, I impose a sentence of 9 months imprisonment to be served concurrently
    

CR 134 of 2024 Rex v Lavinia ‘Otuafi

25. In your case Lavinia, for Count 5, I am minded suspend a sentence of 6 months imprisonment for 2 years, that means you must not commit any offence within the next two years, if you do, you will serve 6 months of this sentence as well as any other penalty for the matter you would then be charged for.
26. In addition, you serve 40 hours of unpaid work within 2 years, and you must submit yourself to a drugs awareness program at the direction of the Probation Office and the Salvation Army.
27. For Count 3, I impose a sentence of 3 months imprisonment concurrent to Count 5.
28. The upshot is, the total term of 6 months imprisonment is fully suspended for 2 years on the conditions already mentioned.
    

FINAL RESULT
CR 133 of 2024 Rex v Petelo Tu’ipulotu

1. For Count 1, I impose a sentence of 2 years imprisonment with no suspension period.
2. For Count 3, I impose a sentence of 9 months imprisonment to be serve concurrently to Count 1.
3. This sentence is to be backdated to when the Accused was first remanded for this matter.
   

CR 134 of 2024 Rex v Lavinia ‘Otuafi

29. For Count 5, I impose a sentence of 6 months imprisonment.
30. For Count 4, I impose a sentence of 3 months imprisonment concurrent to Count 5.
31. The Accused sentence is of 6 months is fully suspended for 2 years on the following conditions:
    1. You must not commit any further offence during your period of suspension
    2. You must complete 40 hours of community service within 2 years
    100. You must complete a course on drugs awareness at the direction of the Probation Office and the Salvation Army.
         
32. In addition to these orders, I further order that all drugs and utensils seized in these proceedings are to be destroyed pursuant to section 32(2)(b) of the Illicit Drugs Control Act and the cash in the amount of $415 is forfeited to the Crown pursuant to section 33 of the same Act.
    

NUKU’ALOFA

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

29 November 2024