R v Angilau [2024] TOSC 33; CR 65 of 2023 (10 May 2024)

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

CR 65 of 2023

BETWEEN:
REX
Prosecution

AND:
TU’IFUA ANGILAU
Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Mrs. Vainikolo for the Crown Prosecution
The Accused in Person

Date of Sentence: 10 May 2024

1. The charges

1. On 5 March 2024, the Defendant was found guilty on the following charges:
   1. Count 1: Possession of an illicit drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
      

2. Summary of facts

2. The Defendant is Tu’ifua Angilau, a 35-year-old male from Vaini, Tongatapu.
3. On or about 18 January 2023, about 5pm, the Police received credible information that the Defendant is travelling around in his vehicle licensed L26390 and is selling illicit drugs.
4. The Police acted on this information and planned to stop and detain the Defendant.
5. When the police arrived at the 3-way intersection at Tofoa, the Defendant was there so they stopped him and his vehicle.
6. After stopping the Defendant, the Police identified that the Defendant was the driver, and he was the only one inside the vehicle.
7. Police Officer Hanisi informed the Defendant that they are Police Officers and to put his hands up so that they can see it, but the Defendant did not do so.
8. Police Officer Vaka then approached from the front passenger's side and informed the Defendant to put his hands up so they can see it. The Defendant did not do so but instead, he held on to the headrest of the driver's seat.
9. The Police brought the Defendant out from the vehicle after the Defendant resisted Police attempts to bring him out of the vehicle.
10. The Defendant was then cuffed, and Officer Fifita informed him that they will move to the Longolongo Police Head-Quarters where they will conduct their work.
11. The Defendant and the Police left to the Longolongo Police Headquarters in the Defendant's vehicle. Officer Kailomani drove the Defendant's vehicle whilst Officer Tonga was in the front passenger seat. The Defendant and Officer Hanisi were at the back seat.
12. Upon their arrival at the Longolongo Police Headquarters, Officer Fifita informed the Defendant that they are Police Officers and are exercising their powers pursuant to sections 12 and 13 of the Illicit Drugs Control Act.
13. The Police commenced their search on the Defendant's person and found a Samsung Touch Screen phone inside the right pocket of his trousers.
14. The Police continued their search to the Defendant's vehicle and the Defendant was present. The Police found two packets containing white substance on the floor of the right-rear passenger seat directly behind the driver's seat.
15. The Police asked the Defendant if he had knowledge of these packets and he responded no.
16. The Police also found $50.00 cash in between the seats of the front passenger and driver.
17. The Defendant was arrested and taken into custody at the Central Police Station.
18. The Police weighed the white substances inside the two packets, and it was 1.95 grams.
19. The white substances inside the two packets were tested and confirmed to be methamphetamine.
20. The Defendant did not cooperate with the Police and chose to remain silent.
    
    100. Aggravating and Mitigating Factors
21. The Crown submits the following as aggravating factors in this case:
    1. The significant amount of Class A illicit drug (methamphetamine) possessed by the Defendant. Importantly it exceeds 1 gram, and it warrants an imprisonment
    2. His evasion from Officer Malolo Vi whilst on high speed during day hours of which the roads are congested. His actions whilst evading the Police are reckless and shows that he had no concern for the safety of the road users and public.
    3. His not guilty plea and conviction after a contested trial
    4. His lack of cooperation with the Police.
22. The Crown submits the following as mitigating factors in this case:
    1. The Defendant is a first-time drug offender.
       
       4. Previous convictions
23. The Defendant has three previous convictions all offences being a failure to comply with the directions of an authorised officer in 2022. This offending is the first drug related offence for the Defendant.
    
    5. Relevant Legislation
24. The penalty for possession of a Class A illicit drug exceeding 1 gram, is in section 4(1)(a)(iv) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.
    
    6. Sentencing comparables
25. The Crown submits the following cases to assist the court in determining an appropriate sentence for the Defendant:
    1. R v Tangata ‘o Pangai, CR 32 of 2021
26. The Defendant guilty to possess1011 of 1.63 grams of methamphetamine, and the Defendant is a first-time offender.
27. A starting point of 21 months’ imprisonment was imposed for the Defendant, for the Defendant's guilty plea, his sentence was mitigated by 7 months resulting in 14 months imprisonment.
28. The Defendant was sentenced to 14 months imprisonment with the final 6 months suspended on conditions for 12·months.
    
    2. R v Siu Holani, CR 65 of 2020
29. The Defendant pleaded guilty to one count of supplying 1.58 grams of methamphetamine, he was 27 at the time, a first-time offender and cooperated with police.
30. A starting point of 2 years imprisonment was imposed with 6 months mitigation.
31. The Defendant was sentenced to serve 18 months’ imprisonment with the final 9 months suspended on conditions.
    
    3. Rex v ‘Uhila Tu’I, CR 66 of 2019
32. The Defendant was charged with two counts of possession of illicit drugs and one count of possession of illicit drugs, contrary to section 4(a) of the Illicit Drugs Control Act.
33. The Defendant possessed 1.29 grams of methamphetamine, 5.62 grams of cannabis and cultivated 3.36 grams of cannbis plant.
34. The methamphetamine charge was made the head sentence, and a starting point of 18 months’ imprisonment was imposed.
35. The Defendant’s mitigating factors were; he pled guilty and was a first time offender.
36. The aggravating factors were; the possession of methamphetamine as a serious offence and present issue here in Tonga and the Defendant did not cooperate with the Police.
37. For the methamphetamine charge, 4 months was discounted from the 18 months starting point and he was sentenced to 14 months imprisonment with the last 6 months suspended.
38. On the cannabis charge, the Defendant was sentenced to 2 months imprisonment to be served concurrent with the methamphetamine count.
39. On the cultivation charge, the Defendant was sentenced to 2 months imprisonment to be served concurrently with the methamphetamine count.
    
    4. R v Harris Satini, CR 277 of 2019
40. The Defendant was convicted after a contested trial for the possession of 1.32 grams of methamphetamine and 4.10 grams of cannabis. The Defendant had previous convictions for drug offending.
41. Previous cases adopted a starting point of 12 months for possession of methamphetamine under 1 gram, to reflect the Courts view towards the destructiveness of methamphetamine on society.
42. Justice Langi set a starting point of 18 months’ imprisonment for the possession of methamphetamine ranging between 1-2 grams. Because the Defendant was convicted after a contested trial, the starting point for this case was set at 2 years imprisonment. This was further increased by the Defendant’s previous offences.
43. A deduction of 3 months was in made to reflect the Defendant’s mitigating factors resulting in a total operative sentence of 2 years and 3 months imprisonment. It was clear the defendant was only a user and not a supplier, with a serious drug addiction.
44. After careful consideration, the sentence was fully suspended on conditions to allow the Defendant to access the treatment needed for his addiction.
    
    5. Rex v Viliami Mangisi CR 10 of 2018
45. The Defendant was convicted by a jury for possession of 1.969.14 grams of methamphetamine and for attempted export of illicit drugs.
46. The Defendant on the possession charge was sentenced to 12 years and 6 months imprisonment and for his attempted export charge, he was sentenced to 5 years imprisonment to be served concurrently with the possession sentence.
47. Cato J adopted Zhang v R [2019] NZCA 507 for it revised Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). The bands in Fatu have been applied in Tonga as guidelines for determine the appropriate sentence for a drug offender. These bands were revised in Zhang and was applied her in Mangisi as follows:
    
    7. Crown’s position on sentence
48. Based on the offending and the relevant authorities cited, it is appropriate 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 of2018, 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]:
    1. Methamphetamine is a scourge to societies everywhere that has affected a great deal of harm and misery;
    2. The distribution and use of methamphetamine in Tonga is a significant government and community concern;
    100. In prescribing a maximum penalty of 30 years imprisorn11ent, the legislature has expressed a clear intention that significant penalties are to be imposed; and
    4. Therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.
       
49. In support of a custodial sentence, Lord Chief Justice Whitten in R v Nasif Ali CR 196 of 2020 at [26] emphasised:

“Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply, and use of insidious illicit drugs like methamphetamines. Part of that role is to ensure that sentences imposed for such offending are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.”

50. Furthermore, Lord Chief Justice Whitten articulated in R v Tangata ‘o Pangai at [12]:

“The Court’s responsibility in addressing drug-related offending involving methamphetamines is to ensure that sentences imposed...are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed”

51. As discussed recently in R v Cos [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.”

52. The Crown submits in that regard, that the Defendant here is clearly a drug supplier. The information received, the amount of drugs possessed, the Defendant's mannerism, the presumption in section 4(2)(b) of the Illicit Drugs Control are all consistent with him actually being involved in the supply of illicit drugs. Accordingly, the Crown submits that the Defendant's role or level of culpability to be between lesser and significant, so that his offending should be placed at the lower range of Zhang Band 2.
53. Due to the reasons outlined above, the case comparable, the appropriate starting point should be 30 months’ imprisonment (2 ½ years imprisonment).
54. Given the Defendant is a first-time offender, it is submitted that 6 months is mitigated from the starting point, with a result sentence of 24 months imprisonment. The Defendant has no other mitigating factors.
    
    1. Suspension
55. 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 minimal suspension of his imprisonment.
56. The factors that favour suspension is the Defendant’s lack of drug offending and his high propensity to rehabilitate himself with the opportunity of a suspended sentence. Therefore, it is submitted that the final 6 months of his sentence is suspended for a period of two years.
    
    2. Orders Sought by the Crown
57. Pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils subject of these proceedings be destroyed.
58. Pursuant to section 33 of the Illicit Drugs Control Act, the $50 cash seized in this operation be forfeited.
    
    3. Conclusion
59. The Crown submits the Defendant is sentenced to 24 months imprisonment with the final 6 months suspended on conditions for two years.
    
    8. Presentence report

1. Personal History

60. The Defendant was born on 23 January 1987 and legally registered as “Penisoni Tu’ifua Angilau.” He had a good upbringing in a financially stable household. In 2017, his father passed away and his mother soon after remarried and moved to the United States.
61. After high school, he moved to Australia and started a family with his partner Leila. In 2018, the Defendant was deported back to Tonga and stayed with his younger brothers in the family home. He has little involvement with his partner and children in Australia.
62. The Defendant put his time into raising his younger brothers, the Defendant’s sister confirms that he had taken on the role of the parent for their younger siblings who were still effected by their father’s death and their mother’s sudden move to the United States. The Defendant is the caregiver for two of his brothers that was both at the psychiatric ward due to a mental condition.
63. A reference letter was received from Mr Lavulo stating that the defendant contributes to their communal events such as the funeral of their chief Lord Ma’afu.
64. The Defendant went to Vaini Primary School then Liahona High School where he graduated from Form 6.
65. The Defendant is a member of the Church of Jesus Christ of Latter-day Saints. Recent to his remand, Bishop ‘Alofaki stated that the Defendant had been attending “...church for quite sometime now and...can see that he is willing to change”
66. ‘Alofaki also stated that the Defendant shares the harvest of his crops with his neighbours.
67. The Defendant has a permanent injury on both his hands, from being attacked by his brother with a machete. His brother was in an episode of psychosis at the time.
68. The Defendant is a self-employed farmer, relies on his root crops and livestock for income. The Ministry of Agriculture, Forests and Fisheries has confirmed the Defendant farms about 16.5 acres of land. The Defendant is expecting to harvest his taros and export them overseas.
    
    2. Factors relating to the offence
69. The Defendant states the drugs that were found and charged on him does not belong to him. He is not involved with drugs and does not use any illegal substance whatsoever.
70. The Defendant does admit to being close friends with people who use drugs, but he refrains from participating in such activities.
71. The Defendant states that the drugs were planted at his vehicle by his friend Pita who has admitted this information to him.
72. The Defendant remains in his guilty plea and is dissatisfied with the conviction.
73. The Defendant has admitted to producing drugs to his labour workers at his plantation as they prefer that over cash payment. He obtained the drugs from his drug peers.
    
    3. Summary
74. The Defendant is a 37-year-old, unmarried male residing at his family home in Vaini. He had a good upbringing and decent education. He migrated to Australia for work but was deported in 2018. He has since lived with his brothers at their family residence at Vaini and is their breadwinner.
75. He is responsible for most importantly two of his brothers who have mental conditions. The Defendant is a self-employed farmer and does contribute to his community’s livelihood.
76. He has health issues from past injury to both his hands.
77. He claims to not be involved with drugs and denies his charge.
78. He is dissatisfied with his conviction.
    
    4. Assessment
79. The Defendant is at “low risk” of re-offending as he has no drug convictions in the past and due to his matured age, has a good prospect for effective rehabilitation. He has other means for financial stability such as his large-scale plantation to counter possible reliance on drug dealing.
80. His strong association with drug peers can infiltrate any positive outlook for the Defendant.
81. Although he denied his involvement with drugs, he also admitted to having access to drugs from his friends and has provided drugs to others.
82. The Defendant must importantly refrain from his negative peers to completely avoid re-offending.
    
    5. Recommendation
83. It is recommended for the Defendant to be given a partly suspended sentence on the following conditions during his suspension term;
    1. To be placed on probation
    2. He is not to commit any offence punishable by imprisonment
    100. He is to avoid using alcohol and illegal drugs
    4. He is not to associate with known drug offenders
    5. He is to undertake a course on drug awareness as directed by the probation officer

1. Defendant’s submissions on sentence

84. Mr. Corbett for the Defendant submits the following mitigating factors on behalf of the Defendant:
    1. He is a first time offender compared to Mr. Harris Satini (R v Satini [2020] TOSC 84). Mr. Satini was charged with possession of 1 gram methamphetamine but he had previous convictions for drug related offences. He was sentenced to 2 years and 3 months imprisonment but fully suspended on condition he carry out 70 hours of community work;
    2. In R v Kalonihea [2020] TOSC 68, Whitten LCJ QC stated:
       1. “for first time offenders on possession charges, the court should endeavour to afford the Defendants a chance of rehabilitation.”
    100. Criteria’s laid down in Mo’unga are applicable in this case:
         1. No previous convictions for illicit drugs;
         2. He will likely utilize the opportunity to rehabilitate his life;
    4. That the accused is in a position to pay a fine in lieu of an imprisonment sentence;
       

10. Discussion

85. The maximum statutory penalty for possession of a Class A drug in the quantity of 1 gram or more is a fine not exceeding $1000,000 or to imprisonment for any period not exceeding life
86. It goes without saying that our country is now facing major social problems directly associated with the use and distribution of illicit drugs. Our courts have constantly emphasized the horrifying consequences that drugs have on our children, our youth and on families.
87. The Crown submits that I should treat the accused as a drug supplier as it was clear from the circumstances that he was supplying drugs. I do not accept that proposition. If the Crown was of the view that he was a supplier, they should have charged him accordingly. However, he was only charged with possession and he is being sentenced only for possession of a Class A drug;
88. Taking into consideration the comparable cases submitted by the Crown and Defence I set a starting point of 24 months imprisonment;
89. For the mitigating factor of having no previous convictions for drug offences I take off 6 months from the starting point. This leaves a total of one and a half years imprisonment or 18 months imprisonment;
90. The comparable sentences submitted by the Crown all suggest that are custodial sentence should be imposed as the weight of the illicit drugs in those cases were just over 1 gram similar to this case;
91. However, in Satini, I had fully suspended the sentence because I believed that the accused in that case deserved to be given a chance to rehabilitate himself through the courses offered by the Salvation Army rehabilitation centre. Despite the fact the accused had previous convictions for drugs offences, he had never had the opportunity to take the rehabilitation courses;
92. In line with the view of LCJ Whitten QC in Kalonihea, I believe that an opportunity should be given for first time offenders charged with possession of amounts at the lower end of the scale of less than 2 grams to take rehabilitation courses. If they do not use that opportunity wisely then they can expect a custodial sentence if they appear before the court again;
93. In this case, the accused is a first time offender and the weight of the illicit drugs is still at the lower end of the scale. I accept the assessment of the probation officer that the accused is a low risk for reoffending and is a good candidate for rehabilitation.
94. However, given the rise in the use of illicit drugs and a need for deterrent sentences to be given, I will suspend only part of the sentence, albeit a major part in view of the submissions by Defence counsel and the comparable case of Satini;
95. I therefore suspend the last 16 months of the total term of imprisonment on conditions leaving 2 months imprisonment to be backdated to when the Defendant was remanded in custody awaiting sentencing;
96. The Defendant has been remanded in custody at Hu’atolitoli since 6 March 2024. He has now been in custody for over two months and he is therefore no longer required to serve the two months’ imprisonment sentence;
    
    11. Result
97. The Defendant is convicted of possession of illicit drugs and sentenced to 18 months imprisonment;
98. The last 16 months is suspended for two years on the following conditions:
    1. The Accused is to complete 70 hours of community service under the direction of the Probation office;
    2. He is to complete a course on life skills under the direction of the Probation office;
    100. In addition to his imprisonment sentence, he is to pay $500 fine within a week of this order;
99. The balance of 2 months is backdated to the time the accused was remanded in custody awaiting his sentence. He was remanded on 6 March 2024 and it has now been a little over two months. He therefore is no longer required to serve the balance of the two months’ imprisonment;
100. Pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils subject of these proceedings be destroyed.
101. Pursuant to section 33 of the Illicit Drugs Control Act, the $50 cash seized in this operation be forfeited.
     

NUKU’ALOFA: 10 May 2024

‘E. M. L Langi
J U D G E