R v Tupou [2024] TOSC 29; CR 56 of 2024 (13 May 2024)

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

CR 56 of 2024

BETWEEN:
REX – Prosecution

AND:

MATAFONUA TUPOU – 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 April 2024, the Defendant pleaded guilty to the following charges:
   1. Count 6: Unlawful possession of Utensils

2. SUMMARY OF FACTS

2. The Defendant is Matafonua Tupou, a 36-year-old male from ‘Utulau . He was charged together with Isiah Takau and Tu’utalelei ‘Atuekaho.
3. On or about 9 October 2023, at 8:40pm the police received reliable information that illicit drugs were being sold at Isiah’s residence, that Isiah drove a vehicle with the license plate L-20987 and at the time he was still at a residence in Tu’atakilangi.
4. All three Defendants were present with, Malia Takau 36 years old, Willy Takau 8 years old and Lesieli Takau a 6-month-old.
5. Police informed Sione Lamipeti Mapa Tonga 71 years old, the owner of the residence, that the operation members are Tonga Police, and they are there to conduct a search without warrant in the interest of discovering illicit drugs, pursuant to section 12, 13 and 24 of the Illicit Drug Controls Act, this was understood.
6. Police informed the present individuals that they would first be searched before the search continued.
7. The operation members searched the Defendant and discovered in his right trouser pocket 1 empty pack with traces of a white substance suspected to be methamphetamine.
8. Police asked the Defendant what the previously discovered item was, and he answered that it was used to store "ice' and then he was asked where the 'ice' was and he answered that he did not know because he just found that trousers and put them on but he suspects that the pants belong to an individual named Soane. Police then informed the Defendant that he was arrested for possession of utensils.
9. The Police also searched the vehicle that the Defendant was standing at when Police arrived, he was present during the search.
10. Police discovered in the glove box of the vehicle, one smoking pipe wrapped in toilet paper (Exhibit 1). The Defendant mentioned that the vehicle belonged to the residence. Police asked the Defendant if he had the keys to the vehicle, and he answered that he did not. Police then informed him that he was arrested for the possession of utensils because when the operations members arrived, they discovered the Defendant standing at the door of the vehicle touching something inside.
11. Police discovered 1smoking pipe (Exhibit 2) on top the dashboard on the side of the driver. The Defendant was asked if he was aware of the item, he answered that he was not.
12. Police then discovered 1 bong bottle (Exhibit 3) under the driver's seat. The Defendant was asked if he was aware of the item, he answered that he was not. The Defendant was then brought and asked if he was aware of the smoking pipes and bong bottle which he claims belongs to the residence. Mapa answered that he was not aware of it and that the Defendant, and another person are the only ones that use the vehicle, and that the Defendant stays in the vehicle.
13. After the search was conducted, Police then informed all present parties that the search had concluded and asked them if there was anything further, they were concerned with and they answered there was not.
14. The operation members than departed for the police station and placed the Defendant and the other two Accused persons in custody.
    100. AGGRAVATING & MITIGATING FACTORS
15. The Crown submits the following as aggravating factors in this case:
    1. The matter of illicit drugs is a widespread issue in Tonga today.
    2. The Defendant is not a first-time offender.
    3. The Defendant did not cooperate with the Police.
16. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pled guilty at the first available opportunity.

4. PREVIOUS CONVICTIONS

17. The Defendant has a previous conviction on 15 September 2021 for theft, where he was sentenced to 1 year probation.
    5. SENTENCING COMPARABLES
18. The Crown submits the following cases to assist the Court in determining an appropriate sentence for the Defendant.

1. R v Inoke Hu'akau CR 247 of 2020
   19. 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.
   20. 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.
   21. 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.
   22. Taking into account the mitigating factors, the Accused was sentenced to 6 months imprisonment, fully suspended for 1 year on conditions.
2. Rv Paula Keni Moala, CR 44, 260-261, 405,412 of 2023
   23. 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).
   24. On 13 April 2023, the Accused was found in possession of 0.07 grams of methamphetamine (CR 260-261/23).
   25. 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).
   26. The Accused on different dates pleaded guilty to all his matters and requested that he is sentenced together.
   27. On 21 September 2023, Acting Lord Chief Justice Tupou KC sentenced the Accused to the following:

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
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
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

28. 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:

29. That 3 months from the sentence on CR 260-261/23 is added to the head sentence in CR 44/23;
30. That 6 months from the sentence in CR 405,412/23 is added to the head sentence in CR 44/23.
31. 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
   32. 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.
   33. 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.
       6. CROWN’S POSITION ON SENTENCING
   34. The Crown submits the following position on sentencing for the Defendant:
   35. 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.

36. 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".
37. The Crown submits the appropriate sentence would be 9 months imprisonment for the Defendant.
    1. Suspension
38. The Crown submits the following position on suspension of the sentence for the Defendant:
39. In considering the guidelines established in Mo'unga v R [1998) Tonga LR 154, the Crown is of the view that the Defendant should be granted a full suspension of their imprisonment sentences.
40. The Defendant is not young as he is currently 36 years old, and he is not a first-time offender. However, given the offence of which he is charged and his guilty plea to his charge at the first available opportunity, this displays his likelihood to use a fully suspended sentence as an opportunity to rehabilitate.
41. The Crown proposes that the Defendant’s sentence should be fully suspended for 1 year.
    2. Final Sentence
42. The Crown submits that the Defendant be sentenced to 9 months imprisonment.

This sentence of 9 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

43. 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.
44. 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.
    7. PRESENTENCE REPORT
       1. Personal History
45. The Defendant is the youngest of 11 children, he grew up living with his parents in ‘Utulau until they both passed away a few years ago. He has close relationships with his siblings, and it is reported that he grew up in a good environment.
46. In 2017, the Defendant married his wife ‘Elitisi and together they have five children ranging from ages 8-16 years old excluding their youngest that passed away shortly after birth this year at the end of January.
47. The Defendant’s wife describes him as a good-natured person and their marital relationship was good in the beginning. Five years ago, the Defendant got involved with alcohol and drugs spending most of his time away from home and associating with friends and in extra marital affairs.
48. In 2022, the Defendant’s wife was happy when he enrolled to study at Sia’atoutai Theological College. But, in early 2023, he quit, and they returned to ‘Utulau and the Defendant quickly fell back into his former life of substance abuse and associating in other marital affairs. This led to their separation and for ‘Elitisi to return to her parents who were serving in a missionary at Free Weslyan Church at ‘Eua.
49. In February 2024, after the offending the defendant went to ‘Eua to apologise and reconcile with his wife. They are now reunited and have returned to their normal life at his wife’s parents house in Haveluloto.
50. The Defendant was in Tupou College Toloa from 1999-2002 and graduated after completing technical course in automotive engineering. In 2003, he went into Fokololo-e-Hau Institute to further his training in engineering.
51. During his second year of study, he was assigned to do practical training at his father’s workshop at ‘Utulau but never returned to complete the requirements of his program of study.
52. The Defendant is not involved with his community and is reported to occasionally attend church with the Free Wesleyan Church.
53. The Defendant is generally healthy. He consumes alcohol and has admitted to having an addiction to illegal drugs. His wife reported that the Defendant promised to quit both drugs and illegal drugs once they got together.
54. The Defendant and his wife grow a plantation together for income, he also has skills in auto mechanical engineering that was previously the family’s main source of income. According to his wife, his skill in engineering is how he got involved with drugs, so she has stopped him from going back into that field to avoid further association with those type of friends.
    2. In relation to the offending
55. The Defendant admits to the offending and states he had used illegal drugs before when he did engineering work. That is the only purpose of the offence, nothing else.
56. The Defendant returned to reunite with his family after the offence and promised his wife that he quit and is no longer involved with illegal drugs.
57. The Defendant expressed his remorse and regrets committing the offence. He asks the court leniency and mercy.
    3. Summary
58. Mr. Matafonua Tupou is now 36-years-old, married and has four young children. He is self-employed and lives together with his family at Haveluloto, Tongatapu. He had a stable upbringing with both parents actively present throughout his life, both have now passed away.
59. The Defendant has skills in motor engineering but did not complete his studies to be qualified.
60. He admitted having an addiction to illegal drugs that led to his arrest and being charged with the offence. He has subsequently ceased his involvement with auto engineering.
61. His illegal drugs addiction had also further caused marital problems and affected his family relationships.
62. He has very little to no connections with his religion and village community due to his involvement with illegal drugs.
63. He is said to be remorseful for the offence and had shown positive life changes.
    4. Assessment
64. The Accused shows “moderate risk” of re-offending for his plea of guilty and showing remorse.
65. His attitude and behaviour towards the offence i directly link to strong peer pressure and illegal drugs addiction problems.
66. However, his risk of recidivism can be heightened if he resumes to associate with negative peers and to live away from his family.
67. He needs to undergo a program of drug abuse to counter any risks of relapse.
    5. Recommendation
68. It is hereby respectfully submitted and recommend for the court to consider a full suspended sentence under the following conditions;
    1. The Accused is to be placed on probation.
    2. He is not to commit any offence punishable by imprisonment.
    100. He is to live where directed by the probation officer.
    4. He is to undergo alcohol and drugs awareness course (ADAC) with Salvation Army.
    5. He is to complete 50 hours’ community works under the supervision of his probation officer.

8. DISCUSSION

69. The maximum penalty for unlawful possession of utensils is a fine not exceeding $10,000 or imprisonment not exceeding 3 years or both;

70. In light of the starting point set by LCJ Whitten in Haisila, I adopt the same starting point for this case of 12 months imprisonment;
71. For the mitigating factors of pleading guilty and being a first time drug offender, I deduct 4 months. This leaves 8 months imprisonment;
72. I agree with the Crown and the recommendation of the Probation officer that the circumstances of this case warrant a fully suspended sentence.
73. However, I do not agree that he should carry out only 40 hours of community service. Despite being a first offender, the fact that he was in possession of utensils directly related to the taking of illicit drugs is a serious crime. He has freely admitted to using illicit drugs. First time offenders, even for possession of utensils, should not expect to get off lightly. I therefore order that the accused carry out 80 hours of community service.
    1. RESULT
74. The accused is sentenced to 8 months imprisonment for unlawful possession of utensils;
75. The sentence is fully suspended for 1 year on the following conditions:
    1. He is not to commit any offence punishable by imprisonment during the term of the suspension;
    2. The accused is carry out 80 hours of community work and is to report to the probation office within 48 hours of this judgment;
    100. He is to complete life skill course under the direction of the Probation Office;
76. 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 May 2024

‘E. M. Langi
J U D G E