R v 'Atuekaho [2024] TOSC 28; CR 12 of 2024 (13 May 2024)

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

CR 12 of 2024

BETWEEN:
REX – Prosecution

AND:

TU’UTALELEI ‘ATUEKAHO – Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI
Counsel: Mrs ‘E. Lui for the Crown Prosecution
The Accused in Person
Date of Sentence: 13 May 2024

1. THE CHARGES
   1. On 4 March 2024, the Defendant pled guilty to the following charges:
      1. Count 4: Possession of an illicit drug contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act having 0.15 grams of methamphetamine in his possession.
      2. Count 5: Possession of utensils contrary to section 5A of the Illicit Drugs Control Act.
2. SUMMARY OF FACTS
   2. The Defendant is Tu’utalelei ‘Atuekaho, a 42-year-old male from Puke. The Defendant was charged together with Isiah Takau and Matafonua Tupou.
   3. On or about 9 October 2023, at 8:40 pm the police received reliable information that illicit drugs were being sold at the First Accused Isiah’s residence at Tu’atakilangi.
   4. The Police conducted a search at Isiah’s residence and found all three Defendants there together with Malia Takau and two young children;
   5. Officer Fifita saw the Defendant attempt to throw something away. The Defendant also tried to resist arrest and did not follow the instructions of the Police whilst he tried to rid the contents of his trouser pocket.
   6. The Police took the items from the Defendants trousers. The items consisted of:
      1. 5 packs containing a white substance suspected to be methamphetamine (Exhibit 1 - Exhibit 5);
      2. 1 pack containing 3 empty packs (Exhibit 7.1-7.3)
      100. 1 pack containing 3 packs consisting of a white substance suspected to be methamphetamine (Exhibit 8.1-Exhibit 8.3)
      4. 1 pack containing 3 packs consisting of a white substance suspected to be methamphetamine (Exhibit 9.1-Exhibit 9.3)
   7. Police asked the Defendant what the items were, and he answered that a portion of it was salt, another portion of it was glass and the other portion of it was “ice” which he said was an illicit drug. Police then informed the defendant that he would be arrested for possession of an illicit drug as well as destruction of evidence when he had earlier smashed a smoking pipe.
   8. On or about 10 October 2023, Police conducted the weighing and testing of the suspected illicit drug exhibits. It went as follows:

Discovered in the trouser pocket of the Defendant:

a. Exhibit 1- 0.16 grams (Inconclusive)

b. Exhibit 2- 3.39 grams (Inconclusive)

c. Exhibit 3- 0.02 grams (positive for methamphetamine)

d. Exhibit 4 - 0.07 grams (positive for methamphetamine)

e. Exhibit 5 – 0.06 grams (positive for methamphetamine)

f. Exhibit 8.1 – 4.0 grams (Inconclusive)

g. Exhibit 8.2 - 0.38 grams (Inconclusive)

h. Exhibit 8.3 - 0.55 grams (Inconclusive)

i. Exhibit 9.1 - 0.47 grams (Inconclusive)

j. Exhibit 9.2 - 0.44 grams (Inconclusive)

k. Exhibit 9.3 - 0.34 grams (Inconclusive)

9. A total of 0.15 grams tested positive for methamphetamine in the contents that were found in the Defendant’s trouser pocket.
   

100. AGGRAVATING & MITIGATING FACTORS
     10. The Crown submits the following as aggravating factors in this case:

i. The matter of illicit drugs is a widespread issue in Tonga.

11. The Crown submits the following as mitigating factors in this case:

i. He is a first-time offender.

2. The Defendant pled guilty at the first available opportunity.
3. The Defendant was, to a certain extent cooperative with the Police during the search.
   4. PRE-SENTENCE REPORT
   1. Personal History
      12. The Defendant is the eldest of his parents’ 6 children. The Defendant’s father passed away in 2017 and all remaining family members are survived.
      13. Three months after the Defendant was born, he was customarily fostered by Luseane Tauheluhelu (maternal aunt) of Nuapapu, Vava’u. In 1991 Luseane died following the accused return to his biological parents at Makave. Relationships at home as he grew up was reported to be good.
      14. In 1996, the Defendant moved back to Nuku’alofa to seek employment.
      15. The Defendant married his wife Lesila of Lotofoa Ha’apai, family relations were good. In 2008, they secured a piece of land at Puke where they have lived in up till now. They have three children (2 female and 1 male) ranging from 16, 13, 10 years old.
      16. Later in 2019, the Defendant started experiencing marital problems. The Defendant blamed his wife for having affairs before she travelled to Australia as a seasonal worker in 2019. The Defendant explained, his wife was stuck in Australia during the Covid lockdown further causing the problems following their separation since 2021 to today. The Defendant also blames his wife for his marital issues and involvement with illegal drugs.
      17. The Defendant’s mother, Melenoa confirmed the Defendant is separated from his wife but stated the reason being his involvement with illegal drugs. Melenoa mentioned nothing related to the accusation by the defendant of the wife’s deceitful conduct. Lesila returned last year only for a week to see her children and her relationship with the wife and the kids are good according to the Melenoa. The statement by the Melenoa was confirmed by the Town Officer and Bishop Tupou.
      18. Melenoa also described her son as a good-natured person that cared a lot for his family before getting into trouble with drugs. The Defendant was a devoted husband and father to his family.
      19. The Defendant is a member of the Mormon Church in Puke but is not committed as she should be. According to Bishop Tupou, the Accused was a former Assistant Bishop for 2 years (2018, 2019. After the Defendant was released from his role, he began to miss normal religious activities and would only occasionally attend Sunday services. Bishop Tupou also visited the Defendant for counselling sessions to no avail with the result being the Defendant committing these offences.
      20. This is the same perspective shared by the Town officer disclosed during his interview. The Defendant was a good individual recognised to always be involved in community activities, yet in the past few years the Defendant has now associated himself with new people that do not belong to the village. The Defendant has now occupied himself with his new friends and is not involved in any of the community activities. The Town Officer further said Hon. Fohe made a decision in the recent village Fono to remove the Defendant from Puke because of his involvement with illegal drugs.
      21. The Defendant attended Tailulu College, Vava’u and he left at Form 3 level in 1994 due to financial difficulties.
      22. The Defendant suffers a medical condition to his neck and appointment for treatment is booked for 17/04/2024 at Vaiola Hospital.
      23. The Defendant also admitted to being involved with illegal drugs dealing since 2022 as a user and supplier.
      24. The Defendant had skills in heavy machinery operator. He was hired to work on the new development project at Queen Salote wharf from March until October 2023 when he was arrested on this matter. He has lost his job due to the offences.
      25. In 2018 to 2020, the Defendant was involved with the Government Road construction project when he was hired by ‘Atunaisa Fetokai as a heavy machinery operator.

ii. Factors Relating To The Offending

26. The Defendant’s version of the offence:
27. On interview with the Defendant, he admitted to the offending and stated that he accepted the summary of facts.
28. The Defendant stated his involvement with drugs is for his personal use especially when he works as a heavy machinery operator. The Defendant further stated he supplies and sells drugs for financial gain and reused the money he received to buy more drugs and to spend for his family’s household expenses.
29. The Defendant’s Accused’s Character Post-offence:
30. According to all persons interviewed, there is no indication of positive change of behaviour from the Defendant.
31. The Defendant’s behaviour during the interview, blaming his wife for their separation is seems he just make it up to justify what he did in the offences.
32. The Defendant has also admitted to having another matter related to illegal drugs still pending and due to appear at Magistrate Court on 22/04/2024.
33. However, on interview the Defendant had expressed his remorse and regrets of committing the offences. The Defendant now wants to right his wrongs and make his family proud of him again by living a drug free life.

iii. Summary

34. The Defendant is now 42 years old, a husband, a father and is a local resident of Puke, Tongatapu. Despite there being some form of childhood difficulties, he is seemed to have a stable upbringing with both parents actively present throughout his life transitional period.
35. Furthermore, he has no act of transgression in neither the community nor the public in general until these current offences.
36. It is unfortunate that his choices with illegal drugs makes life difficult and the consequences against him ruins further opportunities for him. The impact was not only on him but also his family and community.
37. The Defendant is subject for medical treatment and has no previous crimes.
38. The Defendant said he is remorseful for the offences and asked for the court leniency and mercy.

iv. Assessment

39. The Defendant shows “moderate risk” of re-offending for his guilty plea and previous good character.
    40. He is a first-time offender and identified with illegal drugs abused problem.
    41. His attitude and behaviour towards the offences was intent for the purpose of personal use and selling for financial benefit.
    42. His risk of recidivism is heightened if he continues to associate with negative peers, live away from his family and stay disconnected with his community.
    43. The Defendant needs to undergo a program of drug abuse to counter any risks of relapse.
    44. The Defendant shows strong prospect of effective rehabilitation with the assistance of professionals in the needed area.

v. Recommendation

45. It is recommended for the Defendant to be given a partly suspended sentence on the following conditions during his suspension term including;

i) To be placed on probation

2. Not to commit any offence punishable by imprisonment
3. To live where directed by the probation officer.
4. To undergo a counselling course with Rev. Semisi Kava while serving in prison.
5. Upon release from prison, the Defendant is to enrol and complete a drug abuse course with the Salvation Army.

E. PREVIOUS CONVICTIONS

46. The Defendant has no previous convictions.

F. SENTENCING COMPARABLES

47. The Crown submits the following cases to assist the Court in determining an appropriate sentence for the Defendant.

i. R v Inoke Hu'akau CR 247 of 2020

48. The Accused was charged with one count of possession of 0.06 grams of methamphetamine, and one count of possession of 0.04 grams of methamphetamine. The Accused pleaded guilty upon arraignment.
49. The sentencing Judge adopted the Crown's submission of 12 months for the starting point for the first count noting that in previous cases sentenced by the sentencing Judge, she had set the starting point for possession of any amount of methamphetamine under 1 gram at 12 months’ imprisonment.
50. Due to the Accused's likelihood to take the opportunity to rehabilitate himself, as well as his co-operation with the authorities, and the early guilty plea, the sentencing Judge reduced the head sentence by 6 months.
51. Considering the mitigating factors, the Accused was sentenced to 6 months imprisonment, fully suspended for 1 year on conditions.

ii. R v Paula Keni Moala, CR 44, 260-261, 405,412 of 2023

52. On 24 November 2022, the Accused was found in possession of 28.66 grams of methamphetamine, unlawful possession of utensils and possession of 3.81 grams of cannabis (CR 44/23).
53. On 13 April 2023, the Accused was found in possession of 0.07 grams of methamphetamine (CR 260-261/23).
54. On 27 June 2023, the Accused was found in possession of 0.12 grams of methamphetamine and four empty plastic packets (CR 405,412/23).
55. The Accused on different dates pleaded guilty to al his matters and requested that he is sentenced together.
56. On 21 September 2023, Acting Lord Chief Justice Tupou KC sentenced the Accused to the following:

(a) In CR 44/23:

• Count 1(28.66 grams of methamphetamine) - 5 years imprisonment

• Count 2 - 5 months imprisonment

• Count 3- 10 months imprisonment

• Counts 2 & 3 are to be served in concurrent to Count .1

(b) In CR 260-261/23

• Count 1 (0.07g of methamphetamine) - 9 months imprisonment

• Count 2 - 5 months imprisonment

• Count 2 is to be served in Concurrent to Count .1

(c) In CR 405,412/23

• Count 1 (0.12 g of methamphetamine) - 12 months’ imprisonment

• Count 2 - 5 months imprisonment

• Count 2 is to be served in concurrent to Count 1

57. The sentencing Judge accepted the Crown's recommendation of a cumulative

approach sentence. Therefore, Acting Lord Chief Justice Tupou KC in light of the totality principle pronounced:

58. That 3 months from the sentence on CR 260-261/23 is added to the head sentence in CR 44/23;
59. That 6 months from the sentence in CR 405,412/23 is added to the head sentence in CR 44/23.
60. Therefore, the resulting sentence is 5 years and 9 months imprisonment with the final 6 months of the sentence suspended for 3 years on conditions.

3. Rv 'Emeline Haisila [2022) TOSC 40
   61. The Defendant pleaded guilty to possession of illicit drugs and utensils, contrary to section 4(1)(a)(iv) and 5A of the Illicit Drugs Control Act. The items in possession included 766 empty dealer packs, a test tube containing fragments of methamphetamine, notebooks of suspected records of drug purchases and supplies, two weighing scales, two straws and $150.
   62. The then LCJ Whitten imposed a starting point of 12 months imprisonment and in consideration of the aggravating and mitigating factors, the Defendant was sentenced to 10 months imprisonment to be served concurrent to the head count.

7. CROWN’S POSITION ON SENTENCING
   63. The Crown submits the following position on sentencing for the Defendant:
   64. Based on the offending and the relevant authorities cited, it is appropriate particularly in the case of the Defendant to impose a custodial sentence. In R v Maile [2019] TOCA 17 at [18], the Court of Appeal held that those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences. To illustrate, the Court cited R v Ngaue (unreported, Supreme Court, CV 6 of 2018, 2 August 2018) at [5] and [6], where Cato J observed and summarised by Lord Chief Justice Whitten in R v 'Amusia Mateni CR 213 of 2020 at [16]:

(a) Methamphetamine is a scourge to societies everywhere that has affected a great deal of harm and misery.
(b) The distribution and use of methamphetamine in Tonga is a significant government and community concern.
(c) In prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed; and
(d) Therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.

65. The most serious offence in relation to the Defendant is clearly the possession of methamphetamine. The Defendant's offending is placed in Band 1of the guidelines for Class A drugs provided by the New Zealand Court of Appeal in Zhang v R /2019] NZCA 507, because the weight of 0.15 grams is less than 5 grams, imputes a sentence of community service to 4 years imprisonment.
66. However, as discussed recently in R v Cox /2022] TOSC 90, the task of identifying where, within that range, the offending falls, requires consideration not only of the quantity of the drug involved, but also the role played by the Defendant in the offending (whether "lesser", "significant" or "leading"). "The role played by the offender is an important consideration in fixing culpability. Due regard to role enables sentencing judges to properly assess [in a holistic manner] the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending".
67. The Crown submits in that regard, that the Defendant here is clearly a drug supplier. The fact that the Defendant was discovered with drug related paraphernalia on his person, suggests that he is involved in the supply of illicit drugs. However, the illicit drugs discovered on his person are of a small amount, and therefore the Crown submits that the Defendant's role or level of culpability to be between lesser and significant. Hence, his offending should be placed further down the range within Zhang band 1.
68. In consideration of the Defendant's level of culpability, and the aggravating factor, the Crown submits that the appropriate starting point for the head count is 15 months.
69. The Defendant possesses mitigating factors, which are deserving of a mitigation discount. The Crown submits a discount of 5 months reduction to the starting point.
70. The appropriate sentence for count 2 is 6 months imprisonment.
71. As the offending in both counts arose out of the same facts and on the same date, it is appropriate for the sentence for count 2 to be concurrent to the sentence of count 1.

1. Suspension
   72. The Crown submits the following position on suspension of the sentence for the Defendant:
   73. In considering the guidelines established in Mo'unga v R [1998) Tonga LR 154, the Crown is of the view that the Defendants should be granted a full suspension of their imprisonment sentences.
   74. The Defendant is not a young man, he is currently 42 years old. However, he is a first-time offender, and at the earliest convenience, the Defendant pleaded guilty to his charges. This displays his cooperation with the authorities and likelihood to use a fully suspended sentence as an opportunity to rehabilitate.
   75. The Crown submits that the Defendant’s sentence be fully suspended for 2 years.
2. Final Sentence
   76. The Crown submits that the Defendant be sentenced to 10 months imprisonment.
   77. This sentence of 10 months imprisonment is to be fully suspended on the following conditions:

(a) not commit any offence punishable by imprisonment.
(b) live where directed.
(c) be placed on probation.
(d) attend life skills program and drugs abuse course conducted by Salvation Army; and
(e) complete 40 hours community service.

3. Conclusion
   78. Considering the comparable sentences, the mitigating and aggravating factors against the Defendant, the Crown leaves it to the discretion of the Court to determine the appropriate sentence.
   79. The Crown also seeks an order from the court, pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils the subject of these proceedings are to be destroyed.

8. DISCUSSION
   80. The maximum penalty for possession of a Class A drug is ;
   81. In light of the submissions by the Crown and the Probation office and comparable cases, I set a starting point of 12 months imprisonment for possession of a Class A drug under one gram;
   82. For the mitigating factor of early guilty plea I deduct 3 months from the starting point. This leaves a total of 9 months imprisonment;
   83. I agree with the Crown submission that there are factors in this case that warrants a full suspension of the term of imprisonment. The accused pleaded guilty at the first available opportunity and he does not have any previous convictions.
   84. However, given the problems faced by our country as a result of the rise in drug related offending, a first time offender should not expect to walk off without some kind of punishment being given. I do not believe that 40 hours of community work is sufficient as recommended by the Crown. I order that the accused complete 100 hours of community service. This is to reflect the courts position on drug related offences;

1. RESULT
   85. On the charge of possession of 0.15 grams of a Class A drug the accused is convicted and sentenced to 9 months imprisonment;
   86. The sentence is fully suspended for 2 years on the following conditions:

1. The accused is to serve 100 hours of community service. He is to contact the Probation officer within 48 hours of this sentence;
2. He is not to commit any further offences punishable by imprisonment during the term of suspension;

100. He is to undertake and complete the life skills program under the supervision of the Probation office;
     87. On the charge of possession of utensils, the accused is sentenced to 6 months imprisonment to be served concurrent to count 1;
     88. I further order pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils the subject of these proceedings are to be destroyed.
         

NUKU’ALOFA: 15 April 2024

‘E. M. L Langi
J U D G E