R v Haupeakui [2024] TOSC 43; CR 66 of 2023 (18 June 2024)

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

CR 66 & 67, 150/2023

REX

-v-

Tupou HAUPEAKUI
Sione SONGO’IMOLI

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J

Counsel: Miss Kafa for the Prosecution
Both defendants were unrepresented

Date of: 18 June 2024

ORDER OF COOPER J

DATE OF ORDER 18 JUNE 2024

THE COURT ORDERS THAT

THE FOLLOWING SENTENCES ARE PASSED

1. Mr. Haupeakui must serve 16 months’ imprisonment, back dated first remand 4 April 2024.
2. Mr. Songo’imoli must serve 4 years and 10 months back dated first remand 5 March 2024.

REASONS

1. Mr. Songo’imoli appears in respect of two offences he committed, one of which he was jointly charged with Mr. Haupeakui (CR 66-67/2023), that being the first in time.
2. The offences they are jointly charged with:

Mr. Haupeakui was charged with

(i) uttering counterfeit currency ($50)
(ii) obtaining counterfeit currency ($170)
(iii) unlawful possession utensils (31 empty packs, a straw and 1 test tube).

Mr. Songo’imoli was charged with:

(i) making counterfeit currency ($3,605)
(ii) possession counterfeiting instruments (12 bottles of ink, 1 drying machine, 3 printers, and 1 keypad laptop)
(iii) three counts of possession illicit drugs (2.16 grams of cannabis seeds, 0.28 grams cannabis and 1.19 grams cannabis seeds) and
(iv) unlawful possession utensils (172 empty packs, 1 bong, 4 test tubes, 1 straw and 3 weighing scales).

3. Those charges arose from the events of Monday 5 September 2022. It was approximately mid-day, Siale Talia’uli was working at the Galilei Enterprise petrol station when a car driven by Mr. Haupeakui arrived and he asked for $20 worth of petrol.
4. The petrol having been dispensed, Mr. Haupeakui paid, giving the note to Ms. Talia’uli, who in turn gave it to Malia Palanite, who was supervising the petrol station that day.
5. The change from that purchase was handed over and as Malia Palanite walked back to the store she looked again at the note and realised it was counterfeit. She yelled out to Mr. Hapeakui, but he drove off.
6. Ms. Palanite contacted the police and along with the counterfeit note, gave them an account of what happened and the registration of the vehicle concerned.
7. The police traced and arrested Mr. Haupeakui that same day. They searched his home address the next day, 6 September 2022. Amongst the items they seized were
8. Four counterfeit TOP$5 with all the same serial no. B707376.
   1. 31 empty packs
   2. 1 test-tube
   3. Counterfeit TOP$50 no. E240973
   4. A torn counterfeit TOP$50 no. E260973.
9. Mr. Haupeakui admitted all those items were his.
10. The following day, acting on information that they received, the police raided Mr. Songo’imoli’s home.
11. They seized the following items
    1. TOP$3605.00 in counterfeit money found in various locations in his home, consisting of $5, $20, $50 and $100 notes:

• some notes had been discarded into a bucket, and were not properly cut to size and still showing parts of the white paper they had been printed and cut out of;
• other notes were still on the A4 size paper they had been printed on and were not yet cut to size.
• other counterfeit notes were found inside an empty mobile phone box and also on the floor.
  2. 12 bottles of ink (yellow, orange, green, red, blue and black);
  3. 3 printers;
  4. Various electronic storage devices, a mobile phone, a keypad laptop and an LCD computer screen;
  5. 1 drying machine (misini fakamomoa);
  6. 1 empty vaikita bottle used as a ‘bong’ for smoking cannabis, 4 test tubes used for smoking methamphetamine, 2 hose-parts used for smoking methamphetamine, 3 weighing scales and a white straw;
  7. 172 empty packs;
  8. 70 cannabis seeds found inside a plastic box which was on the floor (exhibit 1)
  9. cannabis, found inside a blue and yellow empty mobile phone box also on top of a shelf in the house (exhibit 2);
  10. 1 pack with 2 cannabis seeds inside, found inside a tattoo machine box (exhibit 3); and
  11. 1 tray containing soil and 79 cannabis seeds, found on top of a vine plant directly outside of the house (exhibit 4).

12. During the search Mr. Songo’imoli admitted to possessing all these items. He was arrested, taken to the police station for questioning, but exercised his right to silence.
13. The illicit drugs were tested and weighed:
    • Exhibit 1 – 0.92 grams;
    • Exhibit 2 – 0.28 grams;
    • Exhibit 3 – 0.05 grams; and
    • Exhibit 4 – 1.19 grams.
14. On 19 October 2022, the National Reserve Bank of Tonga confirmed the currency taken from Mr. Songo’imoli’s residence was counterfeit.
15. In January 2023, a further report from National Reserve Bank of Tonga confirmed the note that Mr. Haupeakui had given at the Galilei Enterprise petrol station on 5 September 2022 was also counterfeit.
16. On 1 August 2023 both defendants appeared before ACJ Tupou, were arraigned and pleaded not guilty.
17. In due course, both Mr. Haupeakui and Mr. Songo’imoli asked to be re-arraigned and pleaded guilty. I note that Mr. Songo’imoli entered a basis, it was only in respect of count 5 and it was that only two printers of the items in that count were used for producing the counterfeit bank notes. That basis was accepted by the Crown.

Previous convictions

Mr. Haupeakui

18. In May 2021 he was sentenced to a suspended sentence for possession methamphetamine, the full details I do not have, though it included he complete 50 hours Community Punishment Order.
19. In September 2021 he was sentenced to 6 months imprisonment, fully suspended for 2 years, conditional upon his completing 25 hours Community Punishment Order and not committing any offence punishable by imprisonment. Probation have confirmed that the Community Service Order was never completed.

Mr. Songo’imoli

20. March 2009 he was sentenced to 3 years’ imprisonment for possession of methamphetamine.
21. May 2021 for the offences of possession and importing illicit drugs he was sentenced to 18 months’ imprisonment, fully suspended for 3 years. That was conditional upon, inter alia, committing no offences punishable by imprisonment.

Pre-sentence report

22. Mr. Haupeakui is 30 years old. He had a distressing childhood where his parents were often in conflict with one another and his brother’s suicide in 2011 drove him to take illicit drugs.
23. His father gave a very different account describing his son and well cared for to the point of being spoilt.
24. I note that his pre-sentence report compiled in May 2021, for whatever reason, does not mention, any death of a brother that lead him to take illicit drugs.
25. His studies and career were promising. He was enrolled in a double major degree at University of South Pacific, but that ended as illicit drugs took a grip of his life.
26. From 2019 to 2022 he held a number of roles, accounting and also teaching, but his employment came to an end, again, because of his illicit drug use. The pre-sentence report states that it has also lead to ill health. For all this, he has managed from time to time to be a force for good, not only as a teacher, but also the church Youth Groups and Youth Fund Raising. Reverend Tevita Fakatahato’a wrote a kind and supportive reference for him and sees the good that he has at heart.
27. Yet the report notes that he is at a high risk of re-offending. He fully admitted his crimes and was remorseful.
28. Mr. Songo’imoli is 44 years old. His de facto partner speaks highly of him, that he is supportive, works hard for the family and is a responsible parent.
29. He made a solid start in life in His Majesty’s Armed Forces, serving for 3 years.
30. He is assessed as being at a high risk of re-offending. He also admitted to his offending and is remorseful.

Maximum sentences

31. Uttering counterfeit currency, the maximum sentence is 5 years’ imprisonment.
32. Obtaining counterfeit currency, the maximum sentence is 5 years’ imprisonment.
33. Possessing instruments for making counterfeit currency, the maximum sentence is 10 years’ imprisonment.
34. Possession utensils the maximum sentence is a fine not exceeding $10,000 and or 3 years’ imprisonment.
35. Unlawful possession of Class B drug under 28 grams a fine not exceeding $5,000 and or up to 1 year imprisonment.

Crown’s submissions^[1]

Mr Haupeakui

36. Mr. Haupeakui be sentenced to 16 months’ on the offence of obtaining counterfeit currency and 9 months for uttering counterfeit currency to run concurrently, likewise 6 months’ imprisonment for possession illicit drugs, to run concurrently.
37. His 6 month suspended sentence be activated. A total of 22 months, the last 6 months suspended for 2 years on conditions.

Mr. Songo’imoli

38. For the offence of making counterfeit currency, 4 years’ imprisonment.
39. For possession of counterfeiting instruments, 20 months concurrent.
40. For the offences of possession of illicit drugs 1 month and 2 months and 2 months respectively. A further 6 months imposed for possession of the utensils. Those latter terms of sentence to all run concurrent with the sentence for possession of the counterfeit currency, his suspended sentence of 18 months be activated and that to be added to the sentence for the instant offences.
41. A sentence of 5 ½ years the last 12 months to be suspended for 2 years.

Comparable sentences

42. R v Ali [2008] ToLaw Rp 50; [2008] Tonga LR 257. Ward CJ passed sentence of 2 years’ imprisonment for possession counterfeiting material and making counterfeit currency. It is noteworthy that the Learned Judge indicated that he considered the correct starting point 3-3 ½ years’ imprisonment had the defendant been convicted after trial.
43. R v Kolofale CR 166/202 0.75 g cannabis, 40 hours community service order.
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 possession of a single test tube, a starting point of 6 months.

CR 150/2023 R v Songo’imoli

46. On 15 March 2023 police raided the home address of Mr. Songo’imoli, having received information implicating he is in supply of illicit drugs.
47. Ultimately he was charged with the following offences
    1. Possession of illicit drugs, 46.47 grams’ cannabis;
    2. Possession of drug utensils, namely a ‘bong’, test tube, a straw and a set of weighing scales.
48. The officers attended Mr. Songo’imoli’s residence at approximately 5 pm on the day in question. Other were arrested both inside and outside; standing around their vehicles.
49. Mr. Songo’imoli was found in his home, during the ensuing search the offending items were seized.
50. The whole operation generated a number of exhibits. Those relating to Mr. Songo’imoli were:

Exhibit 7 0.33 grams cannabis

Exhibit 10 0.46 grams cannabis

Exhibit 13 41.54 grams cannabis

Exhibit 13.1 3.50 grams cannabis

Exhibit 13.2 0.08 grams cannabis

Exhibit 14 0.56 grams cannabis

51. On 17 October 2023 Mr. Songo’imoli was arraigned and pleaded guilty to the allegation of possession cannabis and not guilty to the allegation possession of utensils.
52. On 5 March Mr. Songo’imoli attended court. The Crown indicated they would not seek a trial in respect of the allegation possession utensils. Mr. Songo’imoli was remanded into custody on that date.

Sentence submissions

53. The Crown in their indicative sentencing document have submitted a sentence of 15 months’ imprisonment is appropriate, the last 3 months suspended for 2 years.
54. R v Ngaue CR 155/2023 for possession 89.93 grams cannabis the Crown submitted a starting of 18 months be adopted. This was calculated by reference to three cases R v Saafi 290/2020; R v Finau 46/2020 and Vea v Crown [2024] TOCA 7 also R v Terewi [1999] NZCA 92; [1999] 3 NZ LR 62.
55. R v Funaki 272/2020 this Court adopted a starting point of 14 months’ imprisonment for 108.33 grams; when considering R v Likamani Fa’aoso 240/2020 Whitten LCJ considered a sentence of 24 months, for possession on the basis of small commercial supply for 165.37 g cannabis.
56. In R v Nague this Court concluded a starting point of 12 months’ imprisonment was appropriate.

CR 66-67/2023

Mr. Haupeakui

1. uttering counterfeit currency ($50) a starting point of 1 year, reduced to 10 months for his late guilty plea.
2. obtaining counterfeit currency ($170) a starting point of 1 year, reduced to 10 months for his late guilty plea, concurrent to count 1
3. (iii) unlawful possession utensils (31 empty packs, a straw and 1 test tube) 9 months reduced to 8 for his late guilty plea, to run concurrent.
4. The suspended sentence of 6 months’ imprisonment is activated and must be served before the sentence in this case.

57. That gives a total sentence of 16 months. Because this was offending in breach of a suspended sentence none of that term will be suspended.

Mr. Songo’imoli

1. I conclude that the offence of possessing materials for counterfeiting is the most serious offence. For which a starting point of 3 years is appropriate. For his late guilty plea, I reduce that to 2 ½ years.
2. For making counterfeit currency staring point of 18 months, reduced to 15 for the late guilty plea. As in the case of R v Ali and the approach adopted by Ward CJ, that term to run concurrent with the above sentence.
3. For each offence of possession of illicit drugs, a sentence of 2 months’ imprisonment, to run concurrent to the above sentences.
4. Possession of drug utensils, a term of 9 months reduced to 8 months, to run concurrent to the above sentences.

58. The suspended sentence of 18 months’ imprisonment, must be activated and added to the sentence.
59. That makes 4 years. Because the offending was during the currency of a suspended sentence I decline to suspend any part of it.

CR 150/2023

60. A starting point of 9 months, increased to 15 because the offence was committed on bail. That in turn reduced by 30 % for his timely guilty plea. A total of 10 months’ imprisonment.
61. No evidence was offered in respect of count 2 and formal not guilty verdict was entered.

Consecutive or concurrent sentences

62. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
63. That gives a sentence of 4 years and 10 months’ imprisonment

Totality

64. I have gone on to consider the question of totality in imposing concurrent terms.
65. In R v Selupe [2021] TOSC 47 at [25] Lord Chief Justice Whitten KC said this:

“The totality principle requires the court to have regard to the totality of the

offending, particularly where the offences are a series of related offences. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the

process to consider whether the aggregate figure represents a proper period of

incarceration to be imposed for the total criminality involved: McDonald v The

Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where

the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment.”

66. I do not consider that this sentence is manifestly excessive in the circumstances of the overall offending in this case.

Conclusion

1. Mr. Haupeakui must serve 16 months’ imprisonment, back dated first date remanded 4 April 2024.
2. Mr. Songo’imoli must serve 4 years and 10 months’ imprisonment, back dated first remand 5 March 2024.

Ancillary orders

3. All drugs and paraphernalia are forfeited and to be destroyed. With the exception of the two printers are forfeited, the other items seized from Mr. Songo’imoli’s home to be returned to him. All the counterfeit currency to be forfeited and destroyed.
   

SUPREME COURT	18 JUNE 2024
NUKU’ALOFA	COOPER J

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^[1] At the time of drafting these remarks the Crown had kindly provided their indicative sentencing submissions. Their final submissions unfortunately came too late to be included in these remarks.