R v Fanga [2024] TOSC 23; CR 25 of 2024 (23 April 2024)

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

CR 25/2024

REX

-v-

Mosese Mafile’o UASIKE aka FANGA

Sentencing remarks

BEFORE : THE HONOURABLE COOPER J
Counsel : Miss Kafa for the Prosecution
Mr. Uasike was unrepresented

Date of : 23 APRIL 2024

THE ORDER OF COOPER J
DATE OF ORDER 23 APRIL 2024

THE COURT ORDERS

1. Mr. Uasike is to serve a sentence of 8 months’ imprisonment, the last 4 months suspended for 1 year on conditions, back dated to 12 March 2024.
2. All drugs and paraphernalia are to be forfeited and destroyed.
3. The TOP $200.00 seized is forfeited.
   

REASONS

1. On 26 March 2024 at his arraignment hearing, Mr. Uasike pleaded guilty to a three count indictment.

(Count 1)

2. Mosese Mafile’o Uasike of Kolomotu’a, on or about 20 September 2023, at Kolomotu’a, you did knowingly without lawful excuse, possess a Class A drug, when you had in your possession 0.99grams of methamphetamine.

(Count 2)

3. Mosese Mafile’o Uasike of Kolomotu’a, on or about 20 September 2023, at Kolomotu’a, you did knowingly without lawful excuse, possess 1 smoking glass utensil, 3 straws, 130 empty packs, 1 weighing scale, 1 bong can and 1 smoking utensil, used for packing and smoking illicit drugs.

(Count 3)

4. Mosese Mafile’o Uasike of Kolomotu’a, on or about 20 September 2023, at Kolomotu’a, you did possess a .38mm ammunition without a licence.
   

Background

5. On 20 September 2023 at approximately 10.30 pm, Police Inspector Vi received intelligence that ultimately took him and colleagues to Kolomotu’a, with the intention of raiding the home of Mr. Uasike.
6. As they arrived in Kolomotu’s they received information directing them to the front of the hall of the Wesleyan Church.
7. Officers observed a black motor car drop an individual in the vicinity of the hall, before departing, only to return shortly thereafter.
8. While that vehicle remained stationary, Mr. Uasike approached it.
9. Police officers intercepted, detained and secured him in handcuffs. As they did so he attempted to discard a vape. That was immediately seized (exhibit 1.1A).
10. He was searched and all that was found upon his person was TOP $200.00 cash (exhibit 2).
11. Police Inspector Vi opened the rear of the vape, which was wrapped at one end with black tape and discovered inside 1 pack (exhibit 1.1A1), containing 5 packs with a white substance inside (exhibits 1.1A2-1.1A5, 1.2) and 1 pack also containing white substance (exhibit 2). Mr. Uasike was cautioned and asked about the contents of the vape, but he denied any knowledge of them.
12. Mr. Uasike’s property was then searched by police assisted by a police dog. The following items were recovered:

Quantity	Items	Found by	Where it was found	Exhibit No.
1	Empty pack	Tomu	On top of a sideboard in the living room	4
1	Piece of straw			5A
1	.38 ammunition		A box on top of the sideboard	5
1	Smoking pipe which had white powder residue		On top of a speaker beside the sideboard in the living room	6
1	Weighing scale		On top of a speaker in the living room	7
1	Piece of straw
1	A big pack containing 119 empty packs
1	A pack containing a white substance			7.1

13. He admitted these items were used by him for smoking. But, he stated the white substance was used as a cooking ingredient.
14. The packets recovered from inside the vape were analysed and found to contain methamphetamine, as was the residue from the pipe, exhibit 6 and the contents of the packet seized from the top of the speaker in the living room, exhibit 7.1. They were all weighed:

Exhibit No.	Net Weight (grams)
1.1A1	0.08
1.1A2	0.10
1.1A3	0.10
1.1A4	0.11
1.1A5	0.09
1.2	0.48
6	0.02
7.1	0.01

Pre-sentence report

15. Mr. Uasike is 39 years old. He is married with three young children.
16. He is of hitherto good character.
17. Mr. Uasike lives at home with his children and his mother, who is unwell and depends on him.
18. He works sporadically as a carpenter and gets some financial support from a sister who lives in New Zealand, though that is modest and not regular.
19. When confronted with the facts of these offences, Mr. Uasike admitted them to the probation officer. The impression he made was of someone able to rehabilitate and accordingly should have a portion of his sentence suspended, with appropriate conditions to that end.

Maximum sentences

20. Possession of less than 1 gram of a Class a illicit drug contrary to section 4 (1) (a) (iii) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, both.
21. Possession utensils contrary to section 5 A Illicit drugs Control Act,, a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.
22. Possession ammunition without a licence contrary to sections 4 (1) and (2) (b) Arms and Ammunition Act a sentence not exceeding 5 years.

Comparable sentences

Possession methamphetamine

23. 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).
24. Lord Chief Justice Whitten KC in R v Paletu’a [2021] TOSC 49, approved that approach.
25. The bands set are:

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.

26. R v Tevita Valikoula CR 205/20 Acting Chief 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.
27. 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.
28. CR 131/2021 R v Fiefie, this Court imposed a starting point of 12 months’ imprisonment for possession 1.19 grams methamphetamine.
29. This Court acknowledges that the weight of the drugs seized is an important factor in sentencing for offences involving possession illicit drugs, but is not the sole factor.

Possession utensils

30. 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.
31. 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.

Possession ammunition without a licence

32. CR 279/2020 R v Poteki, possession of 2 rounds of 0.22 ammunition, a starting point of 1 months’ imprisonment.
33. CR 294/2020 R v Creed (a.k.a. Kuliti) Tongamoa in respect possession of a quantity of 0.22 and 9 mm cartridges a sentence of 4 months’ imprisonment.

Crown’s indicative sentencing submission

34. Count 1 a sentence in the range of 12-15 months with 5 months deducted for early guilty plea and his previous good character. The final 4 months of his sentence to be suspended.
35. Possession utensils, 9-12 months, with 3 months deducted the final sentence to run concurrent with count 1.
36. Possession ammunition, a sentence of 1 month, concurrent to count 1.

Sentence

37. Count 1, possession 0.99 grams methamphetamine, 12 months, reduced by 4 for his previous good character and early plea.
38. Count 2 possession 1 smoking glass utensil, 3 straws, 130 empty packs, 1 weighing scale, 1 bong can and 1 smoking utensil 9 months reduced to 6 to run concurrent with count 1.
39. Count 3 possession two .22 rounds ammunition, 1 month, concurrent with count 1.

Suspension

40. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
41. Those principles are aimed at promoting rehabilitation.
42. 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.
43. As mentioned in R v Wolfgramm & ors 35/2019, at paragraphs 46 to 49 and indeed, reiterated in R v Creed (a.k.a.) Tongamoa ^[1] supporting ones family, the so-called “bread winner” plea, is not of itself a basis for suspension.
44. Because this was a first offence and his stated remorse, some of his sentence should rightly be suspended.
45. Mr. Uasike is sentenced to 8 months’ imprisonment, the last 4 months suspended for 1 year on conditions, namely:
    1. he must not commit any offence punishable by imprisonment;
    2. notify probation within 48 hours of his release;
    3. reside where directed by his probation officer,
    4. he must complete a life skills and drug awareness course as directed by probation.

Conclusion

46. 8 months’ imprisonment, the last 4 months suspended for 1 year on conditions.
47. His sentence to be back dated to his first remand 12 March 2024.
48. All drugs and paraphernalia to be forfeited and destroyed.
49. The TOP $ 200.00.00 seized is to be forfeited.
    

SUPREME COURT	23 APRIL 2024
NUKU’A LOFA	COOPER J

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^[1] Ibid, paragraph 51.