R v Singh [2024] TOSC 50; CR 51 of 2023 (6 August 2024)

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

CR 51/2023

REX

-v-

Jitendra Singh

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J

Counsel: Mr. Fifita and Mr Aleamotu’a for the Crown.
Mr. Singh represented himself.

Date of
Sentence: 6 August 2024

ORDER OF COOPER J
DATE OF ORDER 6 AUGUST 2024

SENTENCE: Mr. Singh is ordered to serve 4 ½ years’ imprisonment to
commence after he has served his 21-month sentence in
CR 55/2022. The last 6 months of his sentence for the instant
Offence will be suspended for 2 years on conditions.

REASONS

1. Mr. Jitendra Singh fell to be sentenced having pleaded guilty to a two count indictment.

(Count 1)

Jitendra Singh of Ngele‘ia, on or about 31 December 2022, at Ngele‘ia, did knowingly without lawful excuse, possesses a Class A illicit drug, when he had in his possession 141.13 grams of methamphetamine.

(Count 2)

Jitendra Singh of Ngele‘ia, on or about 31 December 2022, at Ngele‘ia, did knowingly without lawful excuse possess utensils when he had in his possession 1 weighing scale, 2 test tubes, 4 empty packs and 2 bongs.

Background

2. On the 31 December 2022, the Police received information that illicit drugs were being sold at Mr. Singh’s residence in Ngele‘ia.
3. They took the step of first investigated by putting Mr. Singh’s ‘api under observations and in so doing identified three vehicles that had previously been known as suspect in connection with illicit drug activity, noting also the frequency with which other vehicles arrived at the location.
4. The officers swooped, swiftly executed a search of Mr. Singh’s home and deploying a police search dog as they did so.
5. They recovered a number of items:
   • (a) 1 medium pack suspected to contain methamphetamine (Exhibit 1);
   • (b) a white plastic bowl containing 2 medium sized packs suspected to contain methamphetamine (Exhibit 2);
   • (c) 1 x $100TOP and 3 x $2TOP;
   • (d) a brown wallet containing 1 x $20TOP and 2 x $2TOP;
   • (e) 1 blue pencil case containing 4 medium sized packs suspected to contain methamphetamine (Exhibit 3);
   • (f) a black square bag containing 4 empty packs, 2 rubber bands, 1 x 20^¢TOP, 1 x $50AUD, 4 bundles x $100TOP, 5 bundles x $50TOP, 3 bundles of mixed $10TOP, $20TOP and $50TOP (Exhibit 4);
   • (g) a silver electronic scale (Exhibit 5); and
   • (h) 1 empty bottle with 1 test tube attached to it with traces of suspected methamphetamine (Exhibit 6).
6. Under a brown leather couch in the living room, police found:
   • (a) 1 medium sized pack suspected to contain methamphetamine (Exhibit 7);
   • (b) 1 bottle used to smoke cannabis (Exhibit 7.1); and
   • (c) lodged between the cushioning of the brown leather couch, 1 test tube containing traces of suspected methamphetamine (Exhibit 8).
7. Further amounts of cash were recovered from his motor car. In total TOP$32,050 and AUD$50 were seized.
8. Albeit that he admitted the items seized were his, he initially entered a not guilty plea at his arraignment before the Supreme Court, but was later re-arraigned and entered guilty pleas before his trial.

Statutory maximum sentences

• 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.
• 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.
  

Crown’s submissions

9. The Crown submit a number of features as aggravating, which, in reality are features of the offence itself:
   • The amount.
   • Evidence of intention to supply.
10. Features that plainly are aggravating:
    • Offence committed on bail.
    • Previous convictions for drug offending.
11. Features that are not aggravating at all:
    • The manner of storage of the illicit drugs.
    • That Mr. Singh is not young.
12. The comparable cases submitted are:
    1. R v Mangisi CR 10/2018. A sentence of 12 ½ years for possession and attempted exportation of 1,969.14 grams methamphetamine.
    2. R v Tatakamatonga CR 142/2020, for possession 99.47 grams methamphetamine, a sentence of 7 years and 8 months, the final 6 months suspended on conditions.
    3. R v Moala AC 20/2021 the Court of Appeal upheld the starting point of 8 years for possession 139.3 grams’ methamphetamine.
    4. R v Haisia CR 22/2022a 12 month starting point for possession 76 empty ‘dealer packs’ and scales, straws and remains of pipes; a starting point of 12 months.
       
13. I have also had my attention turned to the guidelines in Zhang v R [2019] NZCA 507 and the bands set in that case:
    

	Former: Fatu	New: Zhang
Band one: < 5 grams	2 - 4.5 years	Community to 4 years
Band two: < 250 grams	3-11 years	2 - 9 years
Band three: < 500 grams	8 - 15 years	6 - 12 years
Band four: < 2 kilograms	10 years to life	8 - 16 years
Band five: > 2 kilograms	10 years to life	10 years to life

14. The Crown submit a starting point of 8 years is appropriate.
15. Further, that 18 months be reduced from that for his eventual guilty plea and cooperation with the police. That gives a sentence of 6 ½ years’ imprisonment.
16. Mr. Singh is currently serving a 21-month sentence for possession illicit drugs.
17. The Crown submit that 4 ½ years ought to be added to that term so as to mark the gravity of the offending and also balance with the totality principle for the overall sentences.

Discussion

18. I do not accept all the aggravating features the Crown submit, for the reasons alluded to above.
19. In respect of the approach to starting point, the necessary reduction and totality, I accept the Crown’s submissions.
20. Therefore, I conclude that 4 ½ years should be served at the conclusion of CR 55/2022, the case for which Mr. Singh was sentenced to 21 months’ imprisonment.
21. That was an offence of possession 1.71 grams methamphetamine.
22. Given that Mr. Singh committed this offence whilst he was on bail in CR 55/2022 and that he had a previous conviction for possession drug utensils as recently as September 2021, there is only limited scope for suspending any sentence.
23. For the offence of possession utensils, a starting point of 12 months reduced to 9 for his guilty plea and cooperation with police. That sentence will be concurrent with the head count.

Suspension

24. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
25. Those principles, as set out in that case, aim to promote rehabilitation.
26. The considerations advanced were whether the defendant was young, of previous good character, or had passed a significant time without offending; whether the defendant would take the opportunity to rehabilitate.
27. I accept the Crown’s submissions that the repeated offending on bail for drugs offences demonstrates that only a minimal amount of that sentence should be suspended.
28. Therefore, the final 6 months will be suspended for 2 years on the following conditions:
    1. He must report to probation within 48 hrs of his release;
    2. He must be put on probation; and
    3. Mr. Singh is to complete a drug rehabilitation course as directed.
       

Conclusion

29. 4 ½ years’ imprisonment, to run from the conclusion of his 21-month sentence in CR 55/2022.
30. All drugs and paraphernalia to be forfeited and destroyed.
31. All monies forfeited.
    

SUPREME COURT	6 AUGUST 2024
NUKU ‘ALOFA	COOPER J