R v Hau [2024] TOSC 18; CR 36-37 of 2024 (25 March 2024)

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

CR 36-37 of 2024

REX

-v-

VENASIO HAU
TUPOU HAUPEAKUI

ORDER

BEFORE: HON. COOPER J
Appearances: Mrs. T. Vainikolo for the prosecution
The defendant for themselves
Date of order: 25 March 2024

1. Both cases were listed today for arraignment. Mr. Haupeakui did not attend. Mr. Hau was produced from Hu’atolitoli.
   
2. Mr. Hau was arraigned:

Count 1 possession 1.61 grams methamphetamine guilty

Count 2 possession 6.70 grams cannabis guilty

Count 3 possession drug utensils 2 straws 5 empty packs guilty

Count 4 possession drug utensils 2 straws 12 empty packs guilty

3. Mr. Hau did not want a pre-sentence report and the court moved to sentence. He simply explained that he was sorry for these offences and asked the court for a chance to rehabilitate.
   

Legislation

For possession of class A drugs over 1 gram, the maximum sentence is a fine not exceeding $1,000,00.00 and, or a term up to life imprisonment or both, pursuant to section 4(1) (a) (iv) Illicit Drugs Control Act.

For possession of Class B drugs under 28 grams, the maximum sentence is a fine not exceeding $5,000.00 and, or a term of imprisonment not exceeding 7 years or both,

pursuant to section 4 (1) (a) (ii) Illicit Drugs Control Act.

Possession utensils contrary to section 5 A, a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.

Count 1.

4. The Court considered these guidelines and comparable sentences:
   
5. Starting with the case of Zhang v R [2019] NZCA 507 that revised the tariffs for methamphetamine offending set in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
   
6. Lord Chief Justice Whitten KC in R v Paletu’a [2021] TOSC 49, approved the adopting of that approach.

The bands set are these:

Band 1 under 5 g community penalty – 4 years

Band 2 under 250 g 2 – 9 years

Band 3 under 500 g 6 – 12 years

Band 4 under 2 kg 8 – 16 years

Band 5 over 2 KG 10 years – life.

7. R v Tevita Valikoula CR 205/20 Justice Tupou imposed a 9 month custodial sentence on a guilty plea to possession 1.68 g methamphetamine, 4 months of which were suspended on conditions.
   
8. R v Petelo Moli CR 284/20 Lord Chief Justice Whitten KC imposed a sentence of 16 months fully suspended for possession 2.12 g methamphetamine.
   
9. In this case I set a starting point of 18 months. This I increase to 24 months because it was an offence that committed whilst Mr. Hau was on bail in respect of CR 137/2023.
   
10. A 30% discount for an early guilty plea gives a sentence of 16 months’ imprisonment.
    

Count 2.

11. The Court considered the following comparable sentences:
    
    • 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.
      
    • 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 0.07g methamphetamine.
      
    • R v Holani, CR possession 5.57 grams’ cannabis. A starting point of 12 months’ imprisonment was imposed.
      

Imprisonment

12. I set a starting point of 12 months, reduced to 8 for early guilty plea.
    

Counts 3 & 4.

13. The Court considered the following comparable sentences:
    
    • 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.
      
    • R v Namoa, Sekona & Finau 58, 59 & 61/ 2022 for 4 empty snap bags, and both counts of possession of a single test tube, a starting point of 6 months.
      
14. For each offence I set a starting point of 9 months, reduced to 6 for early guilty plea.
    

Suspension

15. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154. Those principles, set out in that case, are so as to promote rehabilitation.
    
16. The considerations advanced in that case were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
    
17. Given these offences were committed on bail, a suspended sentence is not appropriate. The sentences in counts 2,3 and 4 are to run concurrent with the sentence in count 1.
    
18. That gives a total sentence of 16 months.
    
19. Albeit that Mr. Hau is already serving a sentence of 4 1/2 years (the last 12 months suspended) imposed 13 December 2023, a portion of this sentence must be cumulative with that sentence.
    
20. 8 months of this sentence must be added to the sentence in CR 137/2023. In arriving at that decision I have had in mind the overall totality of the sentences imposed. A monies are to be forfeited.
    
21. All drugs, paraphernalia and mobiles phones to be forfeited and destroyed.
    
22. The warrant for Mr. Haupeakui remains in force and his case to be mentioned next 2 April 2024 at 0900 hrs.
    

NUKU’ALOFA	N. J. Cooper
25 March 2024	J U D G E