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R v Talanoa [2024] TOSC 16; CR 92 of 2023 (7 March 2024)

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


CR 92 & 146 /2023 CR 5/2024


REX


-v-


Pita TALANOA


Sentencing remarks


BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fifita for the Crown
Mr. Talanoa was unrepresented
Date of Sentence: 7 March 2024


ORDERS MADE BY: COOPER J


DATE OF ORDER: 7 MARCH 2024


SENTENCE: Mr Talanoa is sentenced to 9 years and 10 months’
imprisonment.


No part of which is suspended.


Reasons for sentence


  1. Mr. Talanoa falls to be sentenced for three separate sets of offences concerning illicit drugs as well as being re-sentenced for a further drugs offence.
  2. CR 92/2023; 19 February 2023 (the first offences). He was convicted after trial; 8 February 2024, in respect of, count 1, possession 24.42 grams methamphetamine; count 2 possession 11.47 grams cannabis; count 3 possession utensils, namely two test tubes, two straws and 59 empty packets.
  3. All these items were recovered from a small black pouch that he had discarded on trying to flee police, late one night, at a house in Veitongo where a large number of young people were gathered socialising.
  4. CR 146/2023; 15 March 2023 (the second offences). He pleaded guilty on his arraignment; 23 November 2023, to a single count of possession drug utensils. This was in respect of a police raid at an address in Popua where he was found in a car. As police officers approached he tried to discard a white board marker. That item in fact had concealed inside 5 empty packets and a straw. This led to a search of that vehicle. Recovered from inside a test tube, a set of weighing scales and $1,010.00 in cash.
  5. CR 5/2024; 16 August 2023 (the third offences). Once again a police raid in Popua, this time upon Mr. Talanoa’s home address. He was in possession of; count 1, 11.72 grams methamphetamine, count 2, 33.56 grams of cannabis, count 3, 10 test tubes and 282 empty packs. To these offences he pleaded guilty on 22 January 2024.
  6. In respect of this latter allegation, CR 5/2024, the prosecution summary disclosed that a notebook that contained “...[drug] dealer information...” and a mobile phone had been seized. According to the case summary, Mr. Talanoa had admitted the notebook was his. Yet there was no count on the indictment to reflect any dealing in illicit drugs that notebook may have revealed. No explanation was ever proffered as to this. Five times, between 27 February 2024 and 2 April 2024, the Court requested this material and the investigation into the mobile phone be produced. It was never made available, nor any explanation provided as to why not and why the Court’s ordered was repeatedly ignored.

Previous convictions


  1. 16 September 2003 fined in Magistrates’ court for offence drunkenness.
  2. 16 May 2006 fined in Magistrates’ court for offence drunkenness.
  3. 22 October 2018 a fine of $1,000.00, 3 months imprisonment in default, imposed in the Magistrates’ court for an offence of possession illicit drugs.
  4. 1 April 2009 he was sentenced to imprisonment in the Magistrates’ court for offences of domestic violence. Those terms were made concurrent to an activated suspended sentence of 11 months’ imprisonment. The record does not state what the suspended sentence was imposed for.
  5. 28 September 2021 received a sentence of 5 months’ imprisonment fully suspended for 2 years, imposed in the enhanced jurisdiction of the Magistrates’ court, for possession of illicit drugs.
  6. 28 October 2021 this court imposed a term of 18 months’ imprisonment, the last 12 suspended for 18 months for possession 150.50 grams cannabis, as well as possession drug utensils, namely weighing scales, 198 dealer bags and a test tube used to smoke illicit drugs. His previous suspended sentence was activated and ordered to run concurrent with the sentence for those offences.
  1. Therefore, two of the sets of offences he is to be sentenced for were committed in breach of the suspended sentence imposed in October 2021.
  2. The latter two sets of offences were committed whilst on bail.

CR 92/2023


  1. Possession 24.43 grams methamphetamine
  2. I have considered the following cases:
  3. For possession of 11.47 grams’ cannabis I have considered the following:
  4. In respect of the possession of utensils I have considered the following cases:
  5. This offence was committed in breach of his suspended sentence CR 146/2021.

CR 146/2023


  1. Possession of drug utensils, namely 5 empty packets, a straw, one test tube for smoking illicit drugs and weighing scales.
  2. I have gone on to consider the following case:
  3. This offence was committed whilst on bail. It was also committed in breach of his suspended sentence CR 146/2021.

CR 5/2024


  1. Possession of 11.72 grams methamphetamine.
  2. I have gone on to consider the following cases:
  3. Possession of 33.56 grams cannabis
  4. I have gone on to consider the following cases:
  5. Possession utensils, namely 10 test tubes and 282 empty packets, I have considered the following case:
  6. These offences were committed whilst on bail.
  7. Further to the above, I have reviewed the guidance in Zhang v R [2019] NZCA 507.
  8. It is to be noted that in Zhang v R, the setting of the sentencing ranges was merely one aspect of that case. For example, the first of the eight points the Court stressed was the need for

“a full evaluation of the circumstances to achieve justice in the individual case”.[1] That injunction calls for flexibility and discretion in setting sentences. A guideline judgment is not supposed to alter that fundamental requirement.


  1. Which of itself means that weight is merely one factor in arriving at a sentence in cases involving illicit drugs.

Crown’s submissions


CR 92/2023


Aggravating features


  1. Quantity
  2. His previous convictions for illicit drugs
  3. Offence committed during a suspended sentence
  4. Statutory presumption under section 4 (2) (a) (b) Illicit Drugs Control Act means the drugs in question were with the intention of supply.
  5. He pleaded not guilty and was convicted after trial.
  6. He did not cooperate with the police.

CR 146/2023


Aggravating features


  1. This offence committed on bail
  2. He did not cooperate with the police.

CR 5/2024


Aggravating features


  1. These offences were committed on bail for two other drugs offences
  2. There was a significant quantity seized.
  3. The Statutory presumption under section 4 (2) (a) (b) Illicit Drugs Control Act means the drugs in question were with the intention of supply.
  4. The offending was committed at his home and so would have meant drug possession in and amongst his family and children.

The mitigating features are submitted to be his guilty pleas, where appropriate.


  1. Ultimately the Crown submit that for:
    1. CR 92/2023 the head count is count 1. The other sentences ought to be concurrent to it and it merits a starting point of 5 years.
    2. CR 146/2023 a starting point of 9 months, increased by 3 for the offence committed on bail with a reduction of 3 months for a timely guilty plea.
    3. CR 5/2024 a 5 year starting point for possession of the methamphetamine, because it was committed on bail for the two other drug related offences. The other offences marked by shorter terms of imprisonment concurrent to it. His guilty plea reducing that to 4 years and 3 months.
  2. For the three sets of offences a cumulative sentence of 7 ½ years. The suspended sentence be activated, therefore a total sentence of 8 ½ years. The last 6 months of which suspended.

Pre-sentence report


  1. Mr. Talanoa is 44 years old. He is married with 5 children. His immediate family live with him on the same ‘api, but the reality is that they do not cohabitate, rather remain close by for the sake of the children.
  2. Mr. Talanoa had a good family upbringing and education. Started life working as a mechanic and showed dedication and promise.
  3. This appears to have evaporated, instead he became addicted to illicit drugs and found it a superficially easier life to become a drug dealer.
  4. He told probation officer that he admits to all the offending.
  5. Whilst the probation report makes no assessment of harm, or risk of reoffending, it is quite clear to me from his previous criminal convictions and these offences that he poses a grave risk to society through dealing drugs and is of high risk of re-offending.

Maximum sentences


Sentence


CR 92/2023


  1. For count 1 possession 24.43 grams methamphetamine, a starting point of 5 years’ imprisonment.
  2. I do not accept that (i) the quantity, (ii) the statutory assumption that this was possession for supply, (iii) that he pleaded not guilty and (iv) he did not cooperate with the police, are aggravating features.
  3. The first two are elements of the offences, that are almost always reflected in a longer sentence passed. The latter two, were his acting in the exercise of his rights.
  4. That he committed this offence during the currency of a suspended sentence for illicit drugs and that he has other previous convictions for illicit drugs, I will take into account when considering totality.
  5. At this stage I decline to increase the starting point.
  6. Count 2, possession of 11.47 grams cannabis, a starting point of 6 months.
  7. Count 3, possession utensils; straws, test tubes and 59 empty packs, a starting point of 9 months.
  8. All sentences concurrent, therefore 5 years’ imprisonment.

CR146/2023


  1. Count 1, possession 5 empty packs, a straw, test tube and weighing scales.
  2. A starting point of 12 months. Reduced by a third for his timely guilty plea, a sentence 8 months.

CR 5/2024


  1. Count 1, possession 11.72 grams methamphetamine.
  2. A starting point of 54 months, reduced by 30 % for his guilty plea, 16 months, to 38 months.
  3. Count 2, possession 33.56 grams cannabis, 12 months, reduced to 8.
  4. Count 3, possession utensils, 10 test tubes and 282 empty packs, a starting point of 9 months, reduced to 6.
  5. Counts 2 and 3 concurrent with count 1.
  6. A total sentence on this indictment of 3 years and 2 months.

CR 146/2021


  1. I activate his 1 year suspended sentence.

Totality


  1. I have gone on to consider the question of totality in imposing consecutive terms. 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.”


  1. Mr. Talanoa’s offending was remorseless. Being on bail, or subject to a suspended sentence for possession of illicit drugs made no difference to him. That he had been convicted time and again for offences concerning illicit drugs, made no difference, nothing stopped him in his wish to make money out of selling drugs; drugs that ruin families, lives and communities in the Kingdom of Tonga.
  2. He will serve a substantial sentence, because this offending deserves it.
  3. Quite aside from the need to punish and rehabilitate and to act as a deterrence, the public need to be protected from his venal behaviour.
  4. Each of these sentences will be served consecutive to one another.

Suspension


  1. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
  2. Suspended sentences in the past he took advantage of to deal drugs, he has had his last chance.

Conclusion


  1. Subject to any remissions available under the Prisons Act, he will serve 9 years and 10 months’ imprisonment.
  2. No part of his sentence is suspended.
  3. His sentence will be back dated to his first remand.
  4. All monies to be forfeited.
  5. All drugs and paraphernalia to be forfeited and destroyed.
Supreme Court
7 March 2024
Nuku’alofa
Cooper J

[1] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, at [38].

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