R v Ngaue [2024] TOSC 12; CR 155 of 2023 (28 February 2024)

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

CR 155/2023

REX

-v-

Raymond NGAUE

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fifita for the Prosecution.
Mr. Ngaue was unrepresented.
Date of: 28 February 2024

1. On 27 November 2023 Raymond Ngaue pleaded guilty to a two count indictment alleging

(Count 2)

Possession of an illicit drug, contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.

(Count 3)

Possession of ammunition without a licence, contrary to section 4(1) and (2)(b) of the Arms and Ammunition Act.

(Count 2)

Raymond Ngaue of Lapaha, on or about 30 June 2023, at Sopu, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 89.38 grams of cannabis.

(Count 3)

Raymond Ngaue of Lapaha, on or about 30 June 2023, at Sopu, you did possess ammunition without a licence when you had in your possession seventeen unlicensed .22 caliber ammunition.

2. Mr. Ngaue was arrested following a police raid at his home address in Sopu, on 30 June 2023. Two co-defendants were arrested and charged with drug offences for which they both pleaded guilty on 28 November 2023 and were sentenced forthwith.
3. Mr. Raymond Ngaue was arrested, having been found in his motor vehicle at the scene, in possession of all the ammunition, in a plastic bag he was holding, and three packets of cannabis in the front passenger footwell. The contents weighed 89.38 grams. Also seized from the car was $4,350 cash.
4. From the Crown’s summary of facts, it is not clear who was sat where in the car. Nor, why his wife, who was also in the vehicle, was not charged. Indeed, how it was, just as the police were about to raid his home, he seemingly got all the illicit items he had and took to his vehicle. None of these questions have been addressed in the information before me and I draw no conclusions at all.

Previous convictions

5. Mr. Ngaue has a number of previous convictions recorded against him, helpfully set out in the Crown’s submissions.

OFFENCE	COURT	CASE NUMBER	DATE	SENTENCE
Abetment to housebreaking; Abetment to common assault; Housebreaking; Theft.	Nuku’alofa Supreme Court	CR 132 & 257/2008	7/11/2008	2 years imprisonment for each charge, served concurrently to head sentence.
Cultivation of illicit drugs; Possession of illicit drugs.	Fasi Magistrate Court	CR 599 & 600/2014	15/06/2014	$500 fine, or 2 months imprisonment.
Housebreaking; Theft.	Fasi Magistrate Court	CR 619 & 620/2014	12/08/2014	2 years’ probation.
Possession of illicit drugs	Fasi Magistrate Court	CR 209/2016	13/05/2016	$500 fine or 1-month imprisonment.

Legislative framework

6. The penalty for the possession of a Class B drug exceeding 28 grams is a fine not exceeding $50,000 or imprisonment for a term not exceeding 7 years, or both.
7. For possession of ammunition without licence the maximum penalty is 5 years’ imprisonment.

Possession cannabis

Comparable sentences

8. Turning first to what, in this case might be thought to be the most serious offence, possession of cannabis. The Crown have provided me with a number of cases they submit assist in reaching the correct tariff. The final submission is that for possession of this quantity of a starting of 18 months be adopted. This was calculated by reference to three cases R v Saafi 290/2020; R v Finau 46/2020 and Vea v Crown [2024] TOCA 7 also R v Terewi [1999] NZCA 92; [1999] 3 NZ LR 62.
9. Yet, each of those cases deals with the offence of cultivating cannabis, which is not the situation here. Rather than turn to cultivating cannabis and then make an arbitrary adjustment for simple possession, I consider a better approach is to simply look at decide cases of possession cannabis in similar quantities. This Court acknowledges that quantity is only one factor.
10. Looking at the case of R v Funaki 272/2020 this Court adopted a starting point of 14 months’ imprisonment for 108.33 grams; when considering R v Likamani Fa’aoso 240/2020 Whitten LCJ considered a sentence of 24 months, for possession with on the basis of small commercial supply for 165.37 g cannabis.
11. Accordingly, I conclude that a 12 month starting point is appropriate in this case.
12. I consider that the aggravating feature in this case is his previous convictions, especially for drugs, albeit not recent. For this I increase the starting point to 15 months.
13. The Crown had set out a number of features they submitted were aggravating. The reality is he is being sentenced on the basis of quantity; for which it must be taken he was in possession for the purposes of supply; commensurate with the statutory assumption under section 4(2) (a) of the Illicit Drugs Control Act. Therefore, those elements of the offending, said to be aggravating, are already acknowledged in the starting point.
14. That he did not assist the police, as claimed, is no more than he exercised his right to silence.
15. His timely guilty plea is a matter to be taken into account.

Possession unlicensed ammunition

Comparable sentences

16. Rex v Salesi Fa’aoa CR 312/2020 a starting point of 3 months’ imprisonment.
    
17. In the instant case I set a starting point of 3 months’ imprisonment.
    

Consecutive or concurrent sentences

18. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
19. The offence of possession ammunition is, on the face of it, unrelated to that of the cannabis.
    

Sentence

20. 15 months reduced by one third for his guilty plea. 3 months, likewise reduced to 2 on the second count. Those terms to be served consecutively; a sentence of 12 months.
    

Totality

21. I have gone on to consider the question of totality in imposing concurrent terms.
22. In R v Selupe [2021] TOSC 47 at [25] Lord Chief Justice Whitten KC said this:

“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. Further, in cases where

the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment.”

Suspension

23. Nothing about the term of imprisonment for an offence involving repeated offending for illicit drugs as well as possession ammunition in my view is excessive.
24. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
25. Those principles are aimed at promoting rehabilitation.
26. The key points being whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
27. In this case Mr. Ngaue denied to probation the cannabis was his. Then at the last hearing, he admitted he knew of the presence of the cannabis in the car, but stated it belonged to his Uncle. The case was listed for a Newton hearing on 28 February 2024, to determine the factual basis upon which to sentence.
28. At that hearing he was asked if he maintained his denials. He stated he did not and accepted the illicit drugs were his.
29. This has made me conclude that, despite his previous convictions, a portion of his sentence ought to be suspended.
30. My rationale is this. A defendant who denies liability, in this Court’s experience, finds it all too easy to keep making those denials. It shows some real strength of character, so can be seen as a sign of wishing to rehabilitate, in breaking with an untrue denial.
31. Thus I conclude a portion of his sentence should be suspended.
32. Of his 12-month sentence, 3 months will be suspended for 12 months on the condition he:
    1. report to probation within 48 hours of his release;
    2. be placed on probation; and
    3. complete a drug awareness course.
33. If he breaches any of those conditions or commits a criminal offence during the suspended sentence he will be liable to be resentenced.

Conclusion

34. 12 months’ imprisonment, the last 3 months suspended for a year on the above conditions.
35. All money seized is forfeited.
36. All illicit drugs and paraphernalia and all ammunition to be forfeited and destroyed.
    

NUKU’ALOFA	N. J. Cooper
28 February 2024	J U D G E