R v Sikalu [2024] TOSC 37; CR 58 & 60 of 2024 (11 June 2024)

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

CR 58 & 60/2024

REX
-v-
Fetu’utaha SIKALU
Sefo TONGA

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J

Counsel: Mrs. Lui. For the Prosecution
Mr. Sikalu and Mr. Tonga were both unrepresented.
Date of: 11 June 2024

ORDER OF COOPER J
DATE OF ORDER 11 JUNE 2024

THE COURT ORDERS THAT
IN SENTENCING THE DEFENDANTS

1. Mr. Sikalu is sentenced to 6 months’ imprisonment, the last 3 months suspended for 12 months on conditions.
2. Mr. Tonga is sentenced to 3 months’ imprisonment fully suspended for 12 months, on conditions, including that he perform 40 hours community service order.
   

REASONS

1. On 18 October 2023, the police, having received reliable information, attended the address of Mr. Sikalu in Ha’ateiho.
2. He was spotted in the front of his ‘api, where he was swiftly detained, the officers identifying themselves and informing him he was to be searched in relation to possession of illicit drugs.
3. He was found to be holding a packet of what appeared to be methamphetamine. He was cautioned and informed of his rights asked about it, he told the officers it was “ice”.
4. A further two empty packets were recovered from the ground where he stood.
5. Albeit that there was an extensive search of Mr. Sikalu’s property and a number of items were recovered that led to co-defendants being charged with a variety of, in the main, illicit drug related offences, for the purposes of this sentencing hearing, I confine myself to what happened in respect of Mr. Sefo Tonga.
6. Mr. Tonga was found inside Mr. Sikalu’s fale. A bag was seized during that search was said ty another occupant to be Mr. Tonga’s.
7. When the contents, two pipes used for smoking illicit drugs, were found inside and he was asked about this, under caution, he admitted they were his.
8. Mr. Sikalu was charged with possession 0.15 grams methamphetamine and possession of drug utensils.
9. Mr. Tonga was charged with possession of drug utensils.

Maximum sentences

10. Possession of Illicit drugs contrary to section 4 (1) (a) (iii) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $10,000.00 or 3 years’ imprisonment or both.
11. Possession utensils contrary to section 5 A, a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.

Comparable sentences

12. I have reminded myself of the following relevant cases

Possession methamphetamine

• R v Maile AC 23/2018. For possession of 0.52 grams methamphetamine a sentence of 9 months fully suspended on conditions, the term the Court of Appeal substituted for the original sentence of discharge without conviction.
• R v Tengange (Unreported, CR 21/2020, 6 March 2020, Whitten LCJ) possession of 0.38 grams methamphetamine a sentence of 6 months fully suspended for 12 months on conditions.

13. I remind myself that whereas the amount of an illicit drug is an important factor in determining the correct sentence, it is not the only consideration.

Possession utensils

• 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.
  • 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.
  • R v Kafalava & Veamatahau CR 26 & 38/2023, this court imposed a starting point of 6 months.

Pre-sentence report

Fetu'utaha Sikalu

14. He is 34 years old. Amongst the people interviewed for the report was his mother, who stated he spent too much time drinking alcohol and was lazy.
15. Regrettably, this is a view that was shared by his Town Officer.
16. He showed promise with his schooling, attending Tonga Institute of Science and Technology, but did not finish his course. A job with Luna ‘Eva he started in 2019, but poor discipline on his part led to his loosing that employment.
17. He has 6 criminal convictions for 7 offences.
    • For the offences of grievous bodily harm and an offence of wilful damage to property, both before the Supreme Court in 2010 he was given a sentence of 12 months’ suspended for 2 years.
    • Before the Magistrates’ court he has been sentenced for five offences; drunkenness in 2011, obstruction by missile, rubbish or noise in 2013, common assault in 2018 and bodily harm also in 2018. In 2021 he was sentenced for possession illicit drugs. For all these offences he was fined or given a suspended term of imprisonment.
    • Four times sentenced in the Magistrates’ court for domestic violence, three offences committed in 2015, the last 2018. Those convictions all attracted financial penalties.
18. Assessed as being at High Risk of re-offending, the author of the report wavered as to how really sincere he was in his expressions of remorse.

Mr. Sefo Tonga

19. He is 22 years old, of hitherto good character. His mother was interviewed by probation and gave a candid account of her son’s behaviour. Early promise in life and schooling evaporating due to his drinking and drug taking; he lost his employment he started at a water tank company in 2020 through poor discipline and time keeping. Now, he helps his mother at home, though it is she who earns the money for them.
20. Assessed as showing some remorse but also as being at a high risk of re-offending.

Sentences

Mr. Fetu’utaha Sikalu

21. There are no specific aggravating features to these offences.
22. The mitigating factor of most significance if that fact of his guilty plea and his admissions at the scene.
    • Possession of 0.15 grams of methamphetamine, a starting point of 9 months reduced to 6 for his timely guilty plea.
    • For the offence of possession drug utensils, a starting point of 6 months reduced to 4, likewise for his timely guilty plea.
23. Those sentences to run concurrent.
24. That gives a total sentence of 6 months, the last 3 of which shall be suspended for 12 months on the following conditions.
    1. He must report to probation within 48 hours of his release
    2. Be placed on probation
    3. Live where directed
    4. Not commit any offence punishable by imprisonment; and
    5. Complete a drug awareness Course
25. His sentence is back dated to the date of his first remand 11 March 2024.

Mr. Sefo Tonga

26. Possession of drug utensils.
    • A starting point of 6 months reduced to 3 because of his early guilty plea and previous good character, I also take into account his admissions on being detained and his bag searched.
27. 3 months’ imprisonment, fully suspended for 12 months on condition that he
    1. Report to probation by 2 pm today, 11 June 2024.
    2. Be placed on probation
    3. Live where directed
    4. Not commit any offence punishable by imprisonment
    5. Complete a drug awareness Course; and
    6. He must complete 40 hours community punishment order as directed.
28. Both Mr. Sikalu and and Mr. Tonga were warned that any breaches of their suspended sentences would lead to their being re-sentenced and sent to serve their respective prison sentences.
29. Orders for forfeiture and destruction are stayed until the trial of the co-defendants.
    

SUPREME COURT	11 JUNE 2024
NUKU’ALOFA	COOPER J