R v 'One 'one [2024] TOSC 48; CR 165 of 2023 (17 July 2024)

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

CR 165/2023

REX

-v-

‘Okona ‘One ’one

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fifita for the Prosecution
Miss ‘Aleamotua for Mr. ‘One’one
Date of: 17 JULY 2024

SENTENCE: 4 Years’ imprisonment, the last 2 years suspended for 3 years.

REASONS

1. At his arraignment hearing on 15 November 2023 Mr. ‘One ’one pleaded guilty to the following allegations, as noted below, that plea was vacated and the matter set down for trial, before, after a days’ evidence, he pleaded guilty once again. He faced a 3 count indictment.

(Count 1)

Possession of an illicit drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act. (5.04 grams of methamphetamine)

(Count 2)

Possession of ammunition without a licence, contrary to section 4(1) and (2)(b) of the Arms and Ammunition Act. (two 9mm ammunition)

(Count 3)

Unlawful possession of utensils, contrary to section 5A of the Illicit Drugs Control Act. (one smoking pipe, three test tubes, one weighing scale, one straw and 541 empty packs)

2. On 30 July 2023 the police had attended his home address acting on information they received
3. They attended the address, identified themselves as police officers and made a search of the premises.
4. The drugs utensils where seized and these illicit drugs

Exhibit Number	Exhibit	Net Weight of drug
Exhibit 5.6A	1 pack of methamphetamine	0.97 grams
Exhibit 5.6B	1 pack of methamphetamine	0.98 grams
Exhibit 5.6C	1 pack of methamphetamine	0.80 grams
Exhibit 5.6D	1 pack of methamphetamine	0.96 grams
Exhibit 10A	1 pack of methamphetamine	0.92 grams
Exhibit 10B	1 pack of methamphetamine	0.41 grams
Exhibit 11.1	1 pack of cannabis	0.41 grams

5. A total of $436.00 was seized.

Pre-sentence report

6. Mr. ‘One ‘one is 31 years old, of previous good character, married with 4 children ranging in age from 11 to 2 years old. His wife is pregnant expecting twins. He came from a good family and was given a stable, caring upbringing.
7. Plainly his parents are deeply saddened by the change that has come over him and led to this offending. With a good schooling, work record and a dedicated member of the church he attends, this is a bitter blow to everyone around him.
8. He is assessed as being at low risk of re-offending, given this was his first offence and his guilty plea.
9. That said, it is acknowledged that he is still associating with those who use illicit drugs.

Crown’s sentencing submissions

MITIGATING & AGGRAVATING FEATURES

1. The Crown submits that the aggravating and mitigating features in this case are:

AGGRAVATING FEATURES

(1) The substantial amount of the Class A illicit drug (methamphetamine) possessed by the Defendant; and
(2) For the purpose of sentencing, section 4(2)(b) applies, and the Defendant can properly be described as possessing the illicit drugs for supply. This is based on the substantial amount of methamphetamine, the manner in which the illicit drugs were being stored, and the utensils which are used for the supply of illicit drugs.

MITIGATING FEATURES

(1) The Defendant pleaded guilty at the first available opportunity;
(2) The Defendant has no previous convictions; and
(3) The defendant was, to a certain extent, cooperative with the investigation at the scene.

IV RELEVANT LEGISLATION

2. The penalty for possession of an illicit drug 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.
3. The penalty for possession of ammunition without a licence is in section 4(2)(b) of the Arms and Ammunition Act. The maximum penalty is imprisonment for a term not exceeding 5 years.
4. The penalty for possession of utensils is in section 5A of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $10,000 or to imprisonment for any period not exceeding 3 years or both.

V SENTENCING COMPARABLES

5. The Crown submits the following cases in order to assist the Court in determining an appropriate sentence for the Defendant.
   • (1) R v Afu [2021] TOSC 61 (4 May 2021)
   1. The Defendant pleaded guilty to a number of possession offences, including possession of 27.49 grams of methamphetamine and possession of 196.53 grams of cannabis.
   2. Lord Chief Justice Whitten imposed a starting point of 5 years and 3 months' imprisonment for the methamphetamine charge, reduced by 12 months, resulting in a sentence of 4 years and 3 months' imprisonment. For the cannabis, a starting point of 2 years was set, reduced by 4 months, resulting in a sentence of 20 months' imprisonment.
   100. The Defendant also pleaded guilty to a separate possession of methamphetamine charge and was sentenced to 9 months imprisonment.
   4. In consideration of the overall level of criminality from these offences that were committed on separate occasions whilst the Defendant was out on bail, the judge elected to add 3 months from the second possession of methamphetamine charge, to the head count.
   5. The final sentence was 4 ½ years' imprisonment with the final 18 months suspended for 2 years, on conditions.
   • (2) R v Siosifa Fotu [2021] TOSC 5 (27 January 2021)
   1. The Defendant pleaded guilty upon arraignment to the possession of 25.5 grams of methamphetamine.
   2. Justice Langi imposed a starting point of 5 years imprisonment, which was reduced by 15 months due to the mitigating factors. Despite the Defendant’s proof of good character and prospect of rehabilitation, the substantial amount of the illicit drugs he was discovered with only warranted a partial suspension of 18 months for 3 years on conditions.
   100. The resulting sentence was 3 years and 9 months with the final 18 months suspended for 3 years.
   • (3) R v Viliami Mangisi CR 10/18
   1. The Defendant was found guilty of possession of 1969.14 grams of methamphetamine and attempted export of illicit drugs.
   2. In this matter, Honourable Justice Cato made reference to the Zhang guidelines which outlined the sentencing band two for possession of illicit drugs less than 250 grams was 2 – 9 years imprisonment. He was sentenced, with reference made to the Zhang guidelines, to 12 ½ years’ imprisonment for the possession charge and 5 years for the attempted export, to be served concurrently.
   100. The Honourable Justice Cato also made reference to band one where it is outlined that possession of illicit drugs 5 grams or less was community based probation – 4 years’ imprisonment.
   • (4) R v John Thorn Ngaue (Unreported, Supreme Court, CR 6 of 2018, 2 August 2018)
   1. The Defendant pleaded guilty to possession of 14.5 grams of methamphetamine. A starting point of 4 years and 6 months was set.
   2. After discounts for mitigation, he was sentenced to 3½ years’ imprisonment with final 9 months suspended on conditions.
   • (5) R v Amusia Mateni CR 213/2020
   1. The Defendant was found guilty of possession of 8.08 grams of methamphetamine and interfering with evidence.
   2. A starting point of 4 years was set, reduced by 6 months’ for mitigation. The final 12 months of the resulting sentence of 3 ½ years was suspended on conditions.
   • (6) R v Konileti Latu CR 109/2017
   1. The Defendant pleaded guilty to possession of 4.53 grams of methamphetamine and 21.33 grams of cannabis.
   2. A starting point of 3 years was set for the methamphetamine charge, and then discounted by 12 months for mitigation. Three months for the cannabis charge was added making a total sentence of 2 years and 3 months’ imprisonment, of which, the final 12 months was suspended.
      
   • (7) R v Piliote Uasike CR 161/2019
   1. The Defendant pleaded guilty to possession of 3.48 grams of methamphetamine, 0.87 grams of cannabis and bribing police.
   2. A starting point of 3 ½ years was set for the methamphetamine charge, reduced by 6 months for mitigation. Three of 14 months’ imposed for the bribery was added, resulting in a sentence of 2 years and 9 months’ imprisonment, of which the final 12 months was suspended.
   • (8) R v Paletu’a CR [2021] TOSC 49
   1. The defendant pleaded guilty to possession of 3.16 grams of methamphetamines.
   2. A starting point of 3 years and 3 months imprisonment was set, reduced by one third for mitigation, resulting in a sentence of 26 months’ imprisonment, with the final 12 months suspended.
   • (9) R v ‘Emeline Haisila [2022] TOSC 40 (1 June 2022)
   1. The Defendant pleaded guilty upon her arraignment to the possession of illicit drugs and the possession of utensils, contrary to section 4(1)(a)(v) and 5A of the Illicit Drugs Control Act.
   2. The Defendant had plead guilty to possessing utensils, namely; a total of 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.
   100. Lord Chief Justice Whitten adopted a starting point of 12 months imprisonment and following the consideration of the aggravating and mitigating factors, the Defendant was sentenced to 10 months imprisonment to be served concurrent to the head count.

VI CROWN’S POSITION ON SENTENCING

6. 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 Ngaue (unreported, Supreme Court, CR 6 of 2018, 2 August 2018) at [5] and [6], where Cato J observed:

“This judgment will serve as a warning to those who engage in Tonga with the drug methamphetamine, whether it be for possession only of small amounts or larger amounts, trafficking or supplying it to others, manufacturing, importing, exporting or dealing, in any way, with this extremely dangerous and addictive drug that the courts will sentence offenders to severe punishment. Even for possession of small amounts, offenders can expect to be sentenced to terms of imprisonment. Methamphetamine is a scourge and has effected a great deal of harm and misery on society in countries such as Australia and New Zealand where it has become prevalent in the last couple of decades. It is highly addictive for users, is mind altering and is often accompanied by acts of serious violence as well as being causative of a good deal of collateral crime such as theft and burglary in order for the user to fund the acquisition of the drug. Significant markets are to be found for those who choose to manufacture or import the drug and large profits can be made by criminals who choose to engage in such activity. The courts have responded by imposing very significant penalties on those who engage in this kind of activity."

7. The most serious offence is clearly count 1 of the Indictment. The guidelines for Class A drugs provided by the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507 include band 2, between 5 and 250 grams indicate a sentence between 2 to 9 years imprisonment.
8. 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".
9. The Crown submits in that regard, that the Defendant here was clearly a drug supplier. The presence of the drug related paraphernalia is 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 significant and leading, so that his offending should be placed further up the range within Zhang band 2.
10. Due to the substantial amount of methamphetamine, the comparable sentences, his significant role, and the operation of section 4(2) of the Illicit Drugs Control Act, the appropriate starting point for the head count is 5½ years’ imprisonment.
11. Given the Defendant’s guilty pleas, being a first-time offender, his limited cooperation with Police, a 24 months reduction to the starting point would be appropriate, leaving 3½ years imprisonment.
12. The appropriate sentence for count 2 is 5 months imprisonment.
13. The appropriate sentence for count 3 is 12 months imprisonment.
14. As the offending in all three counts arose out of the same facts and on the same date, it is appropriate for all the sentences for counts 2 and 3 to be concurrent to the sentence for count 1.

VII SUSPENSION

15. 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 some suspension of his imprisonment sentence.
16. The Defendant is not young as he is currently 29 years old. The Accused is a first-time offender and would most likely utilise a partially suspended sentence for rehabilitation.
17. The other matters in favour of suspension is the early guilty pleas and the limited assistance to Police in the investigation of all three offending.
18. The Crown proposes that the final 18 months be suspended for 3 years with the appropriate conditions.

Discussion

Count 1

10. In considering the appropriate starting point for the offence of possession 5.04 grams methamphetamine, the head sentence, I first acknowledge that weight of drugs is but one factor. The sentencing exercise is not simply one of looking at comparable weights and making a purely mathematical extrapolation to inform in the instant case.
11. The comparable cases and the sentence starting point urged on me cause me to pause to analyse them carefully.
12. The Crown submit a starting point of 5 ½ years’ imprisonment.
13. In Afu, Whitten LCJ imposed a starting point of 5 years and 4 months for 27.49 grams of methamphetamine.
14. In Ngaue a starting point of 4 years and 6 months for 14.5 grams of methamphetamine.
15. Mateni a starting point of 4 years for 8 grams of methamphetamine.
16. From the forgoing, I consider that the preponderance of authorities suggests that 5 ½ years for 5.05 grams of methamphetamine is slightly too high.
17. When I take into account the possession of scales and the number of empty bags (541) I am quite sure that this was possession commercial supply of a significant quantity. Looking at his role and the quantity, I conclude a starting point of 4 years is appropriate.
18. I note that in respect of the cases that I have referred, these all pre-date the statutory assumption under section 4 (2) (b) Illicit drugs Control Act that.

in respect of a Class A drug in the quantity of 0.25 grams or more, such person shall be deemed to be supplying such.... Class A drugs.

19. Accordingly, I conclude that the starting point must be increased to reflect the fact of the possession being for the purposes of supply.
20. The possession of the scales and over 540 ‘dealer-bags’ makes it entirely clear this was possession with intent to supply; so far more serious than simple possession.
21. Because of this aggravating factor I increase his sentence to 5 years’ imprisonment.
22. What is the discount that can properly be applied? Mr. ‘One’one first pleaded guilty, then he denied knowledge of the illicit drugs to probation. Then he maintained a not guilty plea and had the matter set down for trial. Then at the after the first day of evidence he pleaded guilty.
23. It seems to me that he always wanted to enter a guilty plea but was scared of the consequences, rather than someone who was intent upon denying the truth.
24. Having considered this carefully, a 30 % discount for the earliest possible guilty plea is not available, but conclude a 20 % reduction in his sentence is a fair approach.
25. That makes a reduction of 12 months, therefore a sentence of 4 years (48 months) imprisonment.

Count 2

26. In passing sentence for possession two 9 mm rounds ammunition without a licence I accept the Crown’s submission of 5-month sentence

Count 3

27. In respect to the offence of possessing drug utensils, in line with the Crown’s submission a sentence of 12 months’ imprisonment.
28. Both count 2 and 3 to run concurrent with one another and with count 1.
    

Suspension

29. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
30. Those principles are aimed at promoting rehabilitation.
31. The key points being whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
32. It is noteworthy that Mr. ‘One’one is assessed in his pre-sentence report as being of a ‘low risk’ of reoffending, he is supported by his family.
33. Having weighed these factors I conclude that the last two years of his sentence can be suspended, though that will be for the maximum period, 3 years and intensive conditions imposed to support him in his rehabilitation.
34. Accordingly he shall with in 48 hours of his release be
    1. placed on probation
    2. reside where directed by probation
    3. successfully complete a drug rehabilitation / drug awareness course as directed by his probation officer
    4. he is to commit no offence punishable by imprisonment during that time.
35. Upon those conditions he is sentence.

Ancillary orders

36. All drugs and utensils, the firearm and ammunition to be forfeited and destroyed.
37. All monies are forfeited.
38. Mr. ’One’one’s sentence is to be back dated to his first remand, 28 February 2024.

Conclusion

39. 4 years’ imprisonment, the last 2 years suspended for 3 years on conditions.
    

COOPER J

17 JULY 2024

NUKU’ALOFA