R v Fifita [2024] TOSC 24; CR 19 of 2024 (24 April 2024)

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

CR 19/2024

REX

-v-

Sosaia FIFITA

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Miss Kafa for the Prosecution
Mr. Fifita was unrepresented
Date of: 24 April 2024

ORDER OF COOPER J
DATE OF ORDER 24 APRIL 2024

THE COURT ORDERS:

1. Mr. Fifita will serve 9 months’ imprisonment, activated in respect of the suspended sentence CR 245/2020.
2. Mr. Fifita will then serve 16 months’ imprisonment, minus the 15 days he has already served since his first remand.
   
3. All drugs and paraphernalia to be forfeited and destroyed.
   
4. All monies are forfeited.
   

REASONS

1. On 11 March 2024, Mr. Sosaia Fifita appeared for his arraignment and entered guilty pleas to the three count indictment he faced. Only Mr. Fifita falls to be sentenced today.

(Count 1)

Sosaia Fifita of Tofoa, on or about 14 September 2023, at Tofoa, you did knowingly without lawful justification, possess a Class A illicit drug, when you had in your possession 1.16 grams of methamphetamine.

(Count 2)

Sosaia Fifita of Tofoa, on or about 14 September 2023, at Tofoa, you did knowingly without lawful justification possess utensils, when you had in your possession 2 empty packs used for storing illicit drugs.

(Count 3)

Sosaia Fifita of Tofoa, on or about 14 September 2023, at Tofoa, you did knowingly attempt to destroy an article capable of being as evidence in relation to the commission of an offence, when you attempted to destroy a smoking pipe, used for the smoking of methamphetamine.

Background

2. Responding to intelligence they had received, Police Officer Fifita and fellow police officers targeted Mr. Fifita’s home address in Tofoa on 14 September 2023 at approximately 10.30 pm that night.
3. A number of people were found at the address and ultimately the police arrested five people, amongst them, Sosiaia Fifita. He was found inside his fale in a bedroom. Others were caught in the fale and on the verandah, officers spotted, Kapiolani Tu’akalau, he tried to run but was pursued and detained.
4. On apprehending Mr. Fifita, he was handcuffed, then cautioned and informed his property would be searched for illicit drugs and associated items.
5. From amongst others arrested at the scene were recovered quantities of methamphetamine, utensils and money. They have been dealt with by the Court in separate hearings.
6. Sosaia Fifita was found with $167.00 in cash in his trouser pocket.
7. It was noted that his right hand was bleeding. A search of the area outside the bedroom, adjacent to the one he was found in, revealed pieces of broken glass louvre blades and 2 packs that contained white substance suspected to be methamphetamine [Exhibit 5 & 7], and a further 2 empty packs.
8. Mr. Sosaia Fifita remained silent on arrest. He was led inside the bedroom where he was first discovered by police. A further search was conducted. Officer Fifita found a phone, and 1 methamphetamine smoking pipe on top of a speaker. The smoking pipe was partially smashed on the speaker. It was Officer Fifita’s opinion that the smoking pipe was recently destroyed by Mr. Fifita upon the Police’s arrival. He made no reply to questions put to him before being arrested for the destruction of evidence.
9. On 15 September 2023, at approximately 1:00pm, Officer Leveni weighed and examined Exhibits 5 & 7. The examination confirmed that these exhibits were methamphetamine. Their weights were recorded as follows-

Exhibit 5- 0.92 grams.
Exhibit 7- 0.24 grams.

10. Crown’s Indicative Sentencing Submissions

Charges:	[1] POSSESSION OF AN ILLICIT DRUG, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act (1.16 grams of methamphetamine). [2] POSSESSION OF UTENSILS, contrary to section 5A of the Illicit Drugs Control Act (2 empty packs). [3] ATTEMPTED DESTRUCTION OF EVIDENCE, contrary to section 37A, (2) of the Illicit Drugs Control Act.
Starting point (range):	[1] 2 - 2½ years imprisonment [Headcount] [2] 3 - 6 months imprisonment [3] 1 ½ - 2 years imprisonment
Discount for an early guilty plea:	[1] 8 - 10 months deduction [2] 1 – 2 months deduction [3] 6 – 8 months deduction No further deductions
Any further discount for mitigation (e.g. first offence):
Resulting sentence (range):	[1] 1 year and 4 months – 1 year and 10 months imprisonment [2] 2 - 4 months imprisonment [3] 1 year – 1 year & 4 months imprisonment
Suspension of sentence, in full or in part:	No Suspension
Conditions of any suspension (including rehabilitation programs, restitution and/or community service):	N/A
Final resulting sentence to be served:	[1] 1 year and 10 months imprisonment [2] 2 months imprisonment concurrent to Count [1] [3] 1 year imprisonment concurrent to Count [1]

11. The Crown have recommended a starting point of 24 to 30 months for possession of 1.16 grams of methamphetamine.
12. In their submissions in an unrelated case, sentenced yesterday, for possession of 0.99 grams methamphetamine^[1] the recommended starting point was 12 to 15 months.
13. It therefore appears to me that there is the possibility that the recommended starting point in the case of Mr. Fifita is too high.
14. Accordingly, I have gone on the review a number of authorities before setting the starting point for the offence in count 1, all the while recognising that the sentencing regime in respect of an offence of possession of more than 1 gram of an illicit Class A drug is different to that of possession of a Class A drug, below the amount of 1 gram.

Maximum sentences

15. Possession of more than 1 gram of a Class A illicit drug contrary to section 4 (1) (a) (iv) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $1,000,000.00 or imprisonment for life, or both.
16. 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.
17. The maximum statutory penalty for destruction of evidence is 15 years’ imprisonment.

Comparable sentences

Possession methamphetamine

18. 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).
19. Lord Chief Justice Whitten KC in R v Paletu’a [2021] TOSC 49, approved the following of that authority.
20. Those bands 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.

21. 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.
22. 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.
23. CR 131/2021 R v Fiefie, this Court imposed a starting point of 12 months’ imprisonment for possession 1.19 grams methamphetamine.
24. Therefore, having reviewed those cases, I conclude the starting point as submitted is too high.
25. 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.
26. I conclude a starting point of 12 months is appropriate.

Previous convictions

27. On 21 August 2021, Mr. Sosaia Fifita was sentenced by Niu J in respect of 2.36 grams of methamphetamine and 3.14 grams of cannabis, both offences committed on 14 November 2019 in Tofoa.^[2]
28. On that occasion police had acted on information that led them to Mr. Fifita dealing illicit drugs from his car. He was found near the Vaiola hospital. The drugs were seized as well as a total of TOP $ 996.00 cash.
29. For those offences Mr. Fifita was sentenced to 2 years’ imprisonment, the final 9 months suspended for 2 years on conditions.
30. In reaching that sentence, Niu J noted that in his pre-sentence report Mr. Fifita had admitted that you were using illicit drugs prior to that offence and even carried on the sale and supply of illicit drugs.
31. In the pre-sentence report that was compiled on this occasion he admits that his problem with methamphetamine use dates back to 2009.
32. He was released from the sentence of imprisonment imposed on 24 August 2021 on 27 July 2022. The suspended portion of that sentence then was active until 27 July 2024.
33. During the currency of the suspended sentence he reoffended when he committed these offences.
34. Therefore, he falls to be resentenced to 9 months’ imprisonment for breaching his suspended sentence.
35. Further, probation report that he did not enrol on his Salvation Army course which under paragraph 22 (ii) of the Sentencing Remarks of Niu J, was also a condition of that suspended sentence.

Pre-sentence report

36. Sosaia Fifita is 36 years old. He lives with his four young children in Tofoa. At one time he was employed by the security firm Tiger Protection Services, but he left that employment and his life descended into drug use and supplying drugs to feed his habit.
37. He told the Probation officer he is remorseful, that he wants to lead a sober life and believes he can achieve this.
38. He is assessed as being at a high risk of reoffending.

Supplying methamphetamine

39. Pursuant to section 4 (2) (b) Illicit Drugs Control Act the statutory assumption is that offences of possession of more than 0.25 grams of a Class A drug are for the purposes of supply.
40. In this case four people were discovered at Mr. Fifita’s house who were arrested for drugs offences committed that night. For example, Kapiolani Tu’akalau, who had attempted to flee the scene, was discovered with a pipe for smoking methamphetamine. Soane Naupoto, who was apprehended in front of the fale, was found to be in possession of 0.02 grams methamphetamine.
41. It is quite clear that on 14 September 2023 Mr. Fifita was involved, yet again, in Class A drug supplying.
42. I therefore conclude the starting point should be increased to 24 months for this repeated pattern of supplying Class A drugs, especially in the light of his continued and determined drug dealing.
43. For his early guilty plea, a reduction of 8 months making a sentence of 16 months.

Possession utensils

44. 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.
45. 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.
46. I conclude a sentence of 6 months, reduced by 2 months must be imposed, to run concurrently to the sentence in Count 1.

Attempted destruction of evidence

47. R v Maka Latu [2021] TOSC 81, a 2 year starting point for destruction of evidence.
48. R v Namoa [2021] TOSC 169; CR 140 of 2021 (28 October 2021) an offence of throwing a test tube away when officers executed a search on the defendant’s property; a starting point of 2 years’ imprisonment.
49. In the instant case I set a starting point of 16 months’ imprisonment, which will run concurrent with count 1.

Suspension

50. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
51. Those principles are aimed at promoting rehabilitation.
52. The key considerations 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.
53. Because of his consistent offending and his high risk of re-offending the conclusion I have reached is that it would not be appropriate to suspend any portion of his sentence.

Conclusion

54. Mr. Fifita will serve the 9 months’ imprisonment, activated in respect of the suspended sentence CR 245/2020.
55. Mr. Fifita will then serve 16 months’ imprisonment, minus the 15 days he has already served since his first remand.
56. All drugs and paraphernalia are to be forfeited and destroyed.
57. All monies are to be forfeited.
    

SUPREME COURT	24 APRIL 2024
NUKU’A LOFA	COOPER J

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^[1] CR 25/2024 R v Uasike
^[2] R v Fifita [2021] TOSC 142; CR 245 of 2020 (24 August 2021) http://www.paclii.org/to/cases/TOSC/2021/142.html