R v Manuofetoa [2024] TOSC 17; CR 147-149 of 2023 (5 April 2024)

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

CR 147 to 149/2023

REX

-v-

Heneli MANUOFETOA
‘Aisea HAVEA
Kaniteli GUTTENBEIL

Verdict and Sentence

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fifita for the Prosecution
The defendants represented themselves.
Date of Trial: 5, 6 March 2024

Date of Verdict: 14 March 2024

Date of Sentence Mr Havea & Mr Guttenbeil: 5 APRIL 2024

ORDERS MADE BY : COOPER J

DATE OF VERDICTS: 14 MARCH 2024

DATE OF SENTENCE MR HAVEA & MR GUTTENBEIL: 5 APRIL 2024

VERDICTS : Heneli Manuofetoa was found guilty of possession
0.41 grams cannabis.
‘Aiseam Havea and Kaniteli Guttenbeil were both found
guilty of jointly possessing (i) 3.33 grams of cannabis
and (ii) possession of a drug utensil, namely a smoking
pipe.

SENTENCE : ‘Aiseam Havea sentenced to 2 months’ imprisonment
Activated on his suspended sentence CR 31-32/2022.
Possession cannabis 6 month’s imprisonment.
Possession utensils, 6 months’ imprisonment, concurrent.

Kaniteli Guttenbeil sentenced to 10 months’ imprisonment
Activated on his suspended sentence CR 308/2020.
Possession cannabis 9 months’ imprisonment.
Possession utensils, 6 months’ imprisonment, concurrent.

Reasons for verdict

1. At the close of submissions, I handed down an ex tempore judgement convicting all three defendants of the counts they faced, this formalizes those decisions.
2. Their co-defendants having earlier pleaded guilty, these are the allegation they faced.

Indictment

STATEMENT OF THE OFFENCES

Heneli Manuofetoa

(Count 2)

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

‘Aisea Havea & Kaniteli Guttenbeil

(Count 3)

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

(Count 4)

Unlawful possession of utensils, contrary to section 5A of the Illicit Drugs Control Act.

PARTICULARS OF THE OFFENCES

(Count 2)

Heneli Manuofetoa of Ma’ufanga, on or about 15 March 2023, at Popua, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 0.41 grams of cannabis.

(Count 3)

‘Aisea Havea of Havelu, and Kaniteli Guttenbeil of Ma’ufanga, on or about 15 March 2023, at Popua, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 3.33 grams of cannabis.

(Count 4)

‘Aisea Havea of Havelu and Kaniteli Guttenbeil of Ma’ufanga on or about 15 March 2023, at Popua, you did knowingly without lawful excuse possess utensils when you had in your possession one test tube and seven empty packets, used for smoking and packing illicit drugs.

Background

3. On 15 March 2023 at approximately 5 pm, at Popua, in Tongatapu, a number of people were arrested at the ‘api of Sione Songo’imoli, in respect of allegations of possession illicit drugs.
4. This trial focused on just three people and two particular locations were the packets of cannabis and a smoking pipe were recovered.
5. All three defendants had been found in and around two motor vehicles that afternoon, parked at Mr. Songoi’moli’s ‘api, when the police raided the address.

Mr. Mauofetoa

6. He was found standing next to a green Toyota saloon at the driver’s door. The two occupants were Pita Talanoa, in the driver’s seat and a woman in the front passenger seat.
7. Behind that car, on the ground, was located a packet of cannabis, its net weight being 0.41 grams.

Mr. Guttenbeil

8. He was found in the driver’s seat of a white Mazda car parked to the side of and a car’s length behind the green Toyota.

Mr. Havea

9. He was in the front passenger seat of that same white Mazda motor car.
   
10. The second location concerns the item found between these two men. It was a black shoulder bag, that contained 8 packets of cannabis and a smoking pipe. The bag had a zip that ran across the top; it was open. That bag discovered between the car’s front seats, 5 or 6 inches behind the gear stick, apparently resting on the hand break.
11. The photographs, exhibit 2, in the Court Book, details almost every aspect of the foregoing, save that by the time those images were taken, Mr. Manuofetoa is seen arrested, detained face down on the ground in handcuffs.
12. One other detail must be noted. It is the presence of the cigarette lighter on the lap of Mr. Havea.

Charges

13. Mr. Manuofetoa was charged with possession of the single bag of cannabis, 0.41 grams.
14. Mr. Havea and Mr. Guttenbeil were charged with joint possession of the 8 bags of cannabis, weighing 3.33 grams and the glass smoking pipe.
15. There was no dispute as to either the final weight of the illicit drugs or that the glass pipe was an illicit drugs utensil.
16. All defendants disputed possession.
17. In line with Warner v Metropolitan Police Commr [1969] a A.C. 256 and R v Boyesen [1982] A.C. 768 HL the two elements the Crown must prove beyond reasonable doubt to establish of possession are (i) knowledge and (ii) control.

Mr. Manuofetoa

18. The Crown’s evidence came essentially from Officer Fifita.
19. Exhibit 2, top image page 22 Court Book, showed the front bumper of the unmarked police car he was driver of, parked behind the Toyota and the Mazda after he and his other colleagues, all in plain clothes, raided the address that day.
20. On arrival he exited his vehicle in short order and was already moving to the Toyota where he saw Mr. Manuofetoa with his left arm on the roof of that car.
    
21. Officer Fifita’s evidence was that Mr. Manuofetoa thrust his arm out side ways, and he saw the item, which proved to be the packet of cannabis in question, thrown by him. What the Officer effectively described was that it skidded down the back of the car and off the trunk to land a few feet to the rear of that vehicle.
22. It can be seen clearly in the bottom image of that same page of photographs in the Court Book.
23. The contention on Mr. Manuofetoa’s part was that he had not had that item. It was thrown by Mr. Guttenbeil out the window of the Mazda who sat in the driver’s seat of that car. This happened as the Officer approached Mr. Manuofetoa .
24. Mr. Talanoa gave evidence for Mr. Manuofetoa of a confession by Mr. Guttenbeil to this effect, made in the police cells later that day.
25. Mr. Havea, cross-examined by Mr. Manuofetoa, gave evidence he saw that packet of cannabis thrown across his body and out the car window, by Mr. Guttenbeil.
26. Mr. Guttenbeil in his evidence stated he threw the packet of cannabis in question.
27. Mr. Manuofetoa also made the point that there was no evidence of finger prints to link him to the exhibit.

Findings

28. I was quite certain that the absence of finger print evidence to link Mr. Mauofetoa to the packet of cannabis did not diminish the strength of the Crown’s case against him.
29. The packet of cannabis in question was recovered from a position consistent with both versions.
    
30. I preferred Officer Fifita’s for the following reasons:
    • Whilst the packet was recovered from a position consistent with both accounts, to have arrived there, as explained on the defence case, would have meant Mr. Guttenbeil effectively throwing it at the feet of Officer Fifita, who was then approaching Mr. Mauofetoa.
    • What is clear from the photographs, exhibit 2, Court Book pages 35, 38 and 40, Mr. Guttenbeil had his car door window down at the time. If he wanted to get rid of cannabis in his possession without being caught by the police, it was far more likely that he would attempt to dispose of it out of his window and not the other side of the car.
    • Officer Fifita’s account was clear. It was consistent with Mr. Manuofetoa being surprised by the sudden appearance of a police officer when he, Mr. Manuofetoa, was caught in broad day light with the packet of cannabis in his left hand, the hand nearest the officer. There being nowhere for him to hide it and no easy means of disposing of it, he attempted the least bad option, or so he hoped.
    • Officer Fifita had no reason to state he saw Mr. Manuofetoa throw it, if it had come from someone else at the scene.
    • His account was not undermined by cross-examination.
31. As to his witnesses’ assertions that Mr. Guttenbeil had agreed to take the blame, in the light of Officer Fifita’s clear evidence I was quite sure that whilst Mr. Guttenbeil had indeed decided to take the blame, he had not thrown the item or ever been in possession of it, for the reasons above, I am certain Mr. Mauofetoa had.

Continuity and Testing

32. It is convenient at this point to note the continuity and testing of all the illicit drugs and the utensil, the subjects of the trial, were all made out.
33. Officer Tu’ilotolava was in charge of the Diary of Action, sometimes called the Investigation Diary (the Diary), exhibit 1.
34. She gave evidence of seeing the packet of cannabis, subject of the count Mr. Manuofetoa faced, in situ. She recorded that contemporaneously in the Diary at entry 5. In turn she saw it taken by the Exhibit Keeper, Officer ‘Utouhoma, who in turn passed it on the Officer Leveni, who tested a portion of it and produced the certificate proving that items contained cannabis.
35. This was precisely the same for the illicit drugs and the smoking pipe seized from the Mazda car, recovered from the bag between Mr. Havea and Mr. Guttenbeil.
36. These items were seen by Officer Tu’ilotolava in situ; as they appear in the photographs, exhibit 2, Court Book pages 34 to 46.
37. She contemporaneously recorded in the Diary their discovery, in the entries timed 1916 hrs to 1920 hrs.
38. The hand-over from the scene and eventual testing, was put into evidence in just the same way, and by exactly the same officers as the single packet seized in respect to the allegation Mr. Mauofetoa faced.
39. A challenge was made to one aspect to the continuity evidence.
40. When Mr. Havea cross-examined Officer Tu’ilotolava, he put it to her that she had, in answer a question from me, initially stated she did not know who had seized the single bag of cannabis, alleged against Mr. Manuofetoa. Mr. Havea explored how it was she later said that Officer ‘Utouhoma took the item from the scene.
41. In assessing this part of the evidence I am quite sure Officer Tu’ilotolava was telling the truth when she stated she had seen Officer ‘Utouhoma take the item.
42. I come to that view because:
    • My question to Officer Tu’ilotolava was not as clearly stated as the prosecutor’s. I had merely asked who had later “seized” the item, whereas the prosecutor had elicited which officer it was next to handle and take control of the item.
    • From this I was entirely sure that Officer Tu’ilotolava was not giving a second different version of events, rather, she had failed to understand what I had asked and understood clearly when Crown Counsel had asked his question.
      

Mr. Havea and Mr. Guttenbeil

43. In respect of the allegations Mr. Havea and Mr. Guttenbeil faced, The Crown’s case was simple. They had been caught red-handed sitting in their car, the eight small packets of cannabis with the pipe in an open bag between them, while they were parked up together.
44. At trial Mr. Havea gave evidence that he did not know what was in the bag. Mr. Guttenbeil gave evidence it was Mr. Havea’s bag.
45. I was entirely sure that both had knowledge and control of the bag and its contents.
46. I came to that view for these reasons:
    • The location of the bag, between both men.
    • Both Mr. Havea and Mr. Guttenbeil accepted the car had been parked up at the ‘api for some 10 or 20 minutes, depending which of the two versions of evidence they gave was to be preferred.
    • The bag was open between them.
    • Mr. Havea had a lighter in his lap.
    • The were no cigarettes or packets of cigarettes or tobacco to explain the presence of the lighter.
47. The denials as to knowledge by either were, in the circumstances, unrealistic and unbelievable.
48. I came to the certain view on the evidence the Crown adduced, they both had been caught by police sitting in a car, where they had been smoking cannabis that day; in the pipe found in the bag between them, which was also where they kept the cannabis.

Conclusion

49. Mr. Manuofetoa was found guilty of possession of the bag containing 0.41 grams cannabis.
50. Mr. Havea and Mr. Guttenbeil were each found guilty of possession of both the eight packs of cannabis found in the black bag, which had a total weight 3.33 grams.
51. Both were also found guilty of possession of the glass pipe used to smoke cannabis, found in that same bag.
    

Sentence

Mr. Maunofetoa

52. He was sentenced at the conclusion of the trial as he wanted to have his case disposed of without the need for a pre-sentence report.
53. He was already serving a sentence of 20 months’ imprisonment for an offence he was sentenced to in October 2023. The final 8 months were suspended.
54. He was then sentenced in December 2023 for possession methamphetamine and a further 12 months were added to his earlier sentence.
55. I was of the view that a sentence of 5 ½ months’ imprisonment was appropriate for the instant offence.
56. That decision was arrived at having considered:
    • CR 166/2020 R v Kolofale; possession 0.75 grams’ cannabis a 40-hour Community Service Order.
    • CR 156/2023 R v Ngaue; possession 0.35 grams cannabis, a starting point 3 months’ imprisonment.
57. In the instant case I arrived at a starting point of 3 months’ imprisonment. That was increased to 5 ½ to reflect his previous convictions for illicit drugs.
58. The Crown submitted a portion of those 5 ½ months should be made consecutive with the term of 32 months he was already serving.
59. I considered that submission carefully.
60. In fact, the instant offence was committed before the offence for possession methamphetamine he was sentenced for in December 2023. Ultimately I concluded that had these all been sentenced together, which would have been preferable, the sentence for possession of methamphetamine would have eclipsed that passed for this offence of cannabis possession.
61. Further, there was no reason that his cases were not brought before the same court to be sentenced at the same time. I do not consider it desirable, or fair, for someone to be made subject of longer, then longer terms of imprisonment, in a piecemeal way when that could easily have been avoided.
62. Ultimately the term of imprisonment I pass is to run concurrent with the term he already serves.

Conclusion

63. 5 ½ months imprisonment, to run concurrent with the term of 32 months he is already serving.
64. The cannabis was ordered to be forfeited and destroyed, pursuant to sections 33 (1) and 33 (2) Illicit Drugs Control Act.

Mr. Havea and Mr. Guttenbeil

65. They both requested pre-sentence reports and their cases were adjourned to 5 April 2024 for that to take place.

Comparable sentences

Possession cannabis

66. R v ‘Akau ‘ola CR 260/20 Justice Tupou imposed a 6-month sentence fully suspended for possession 3.94 g cannabis after a plea of guilty. 50 hours community punished was added to that term.
67. R v Angilau Cr 210/20 Justice Langi imposed a sentence of 15 months’ imprisonment the last 9 months suspended on conditions on a guilty plea for possession 9.26 g cannabis, as well as 0.07 g methamphetamine.

Possession utensils

68. R v Mahina & Wight, 93-94/2022. Mr. Wight was sentenced for possession of 4 straws, 3 sets of scales, a test tube and 112 dealer bags. The court adopted a starting point of 1 year, having considered R v Ha’isila CR 22/2022.
69. R v Namoa, Sekona & Finau 58, 59 & 61/2022 for 4 empty snap bags and possession of a single test tube; a starting point of 6 months.

Mr. Havea

Pre-sentence report

70. He is 35 years old, father of 3 children with his de-facto partner. He was brought up in a stable, happy loving home. He was awarded a scholarship to play ruby in Japan in 2005. Ultimately he had problems with alcohol dependency and the years of hard work and training he put in, in Japan, ended because of this issue.
71. He returned to Tonga. His father employed him in the family business, but their relationship came under strain due to his poor discipline.
72. Ultimately, if he can be free of negative peers, he is hard working, dedicated and loyal.
73. He admits these offences and he is remorseful.
74. His previous conviction, CR 31-32/2022 was for offences of unlawful possession of ammunition and drug utensils. Sentenced on 3 November 2022; 2 months ammunition, 1 month for the utensils, to be served concurrently, thus 2 months fully suspended for one year.
75. When considering offences of possession of drugs, comparable sentences by weight, is merely one factor.
76. I have considered carefully all the positive things said about Mr. Havea in the pre-sentence report.
77. The Crown’s indicative sentence documents recommend a sentence of 9 months’ imprisonment and the 2-month sentence be activated.
78. I consider that is too harsh in the light of his wish to rehabilitate and that he has the ability to go on to make something good of his life. His comments about respecting and understanding the love and care his parents provide (paragraphs 21 and 26 of the pre-sentence report) are heartening.
79. Accordingly, for the offence of possession 3.33 grams cannabis, a starting point of 9 months’ imprisonment, which I reduce to 6. That reduction reflects all the positive sides of his character and is passed in the hope he can put this sentence behind him and change his ways.
80. For possession utensils, a starting point of 6 months. I see nothing to mitigate or aggravate that so as to alter that tariff and fix the sentence at 6 months’ imprisonment, concurrent to the count for possession cannabis.
81. The suspended sentence of 2 months must be activated.
82. He will serve 2 months’ imprisonment, then 6 months for the instant offences.
83. Those sentences are back dated to the date of his first remand.

Suspension

84. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
85. Those principles, as set out in that case, aim to promote rehabilitation.
86. The fact of the matter is he was already given a chance and he squandered it by committing this offence during a suspended sentence. If courts did not react properly and decisively to breaches of suspended sentences, they would have no effect as deterrents.
87. Accordingly, no part of his sentence will be suspended.

Conclusion

88. The 2 month suspended sentence is activated, at its conclusion Mr. Havea must serve a 6-month sentence.

Mr. Guttenbeil

Pre-sentence report

89. He is 33 years old. He grew up in a stable and secure family environment. Married in 2013, had four children, but the relationship broke up in 2020. His wife told the Probation Officer it was his use of illicit drugs that caused their problems.
90. He now lives back with his parents and helps his mother with her business, selling prepared meals.
91. His Town Officer reports that he has a bad reputation and is regarded as being an illicit drug user.
92. His schooling was successful and he graduated from Liahona High School in 2010. He started a 3 year course at Fokolo-e-Hau (Technical) Institute, which he did not complete. He expresses a desire to return to this but has, as yet, not enrolled.
93. He told the report writer that he maintains he is not guilty of the offence.
94. He has a conviction, CR308/2020, for which he was given a partial suspended sentence. He breached that by committing this offence.
95. An element of the suspended portion of that sentence was that he completes a drug awareness course. The probation officer reports that he failed to undertake it.
96. He is assessed as being at a high risk of reoffending and described as showing no remorse.
97. The Crown in their indicative sentence document submitted that a 9-month prison sentence would be appropriate.
98. As with Mr. Havea, I fix a starting point of 9 months for possession of the cannabis. This cannot be reduced given his continued denials and that he shows no remorse, also that he is at a high risk of reoffending.
99. For the offence of possession of utensils, a sentence of 6 months, for the same reasons as set out above, in respect of Mr. Havea. Likewise, that will be concurrent to the sentence imposed for possession of cannabis.
    

Suspended sentence

100. On 25 August 2021 Mr. Guttenbeil was sentenced to 1 year and 10 months’ imprisonment for two offences of possession of methamphetamine; 0.13 grams and 1.13 grams. The last 10 months were suspended, on conditions for 2 years.
101. He has breached the terms of his suspended sentence by (i) committing these offences during the operational period of the suspension and (ii) failing to comply with the condition he complete a drug awareness course.
102. The 10-month sentence will therefore be activated. He must serve that sentence before his 9-month sentence for the instant offences.

Suspension

103. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
104. Those principles, as set out in that case, aim to promote rehabilitation.
105. As observed above, he was given a chance to rehabilitate and yet failed to take it and did not comply with the conditions of his suspended sentence and, further, committed another offence for possession illicit drugs.
106. Accordingly, no part of his sentence will be suspended.

Conclusion

107. He will serve 10 months, activating the suspended sentence he breached. He will then have to serve 9 months’ imprisonment for these offences.
108. That will be back dated to the date of his first remand.

Ancillary orders

109. All drugs and paraphernalia are forfeited and are ordered to be destroyed.
     

Supreme Court	5 APRIL 2024
Nuku’alofa	COOPER J