R v Takau [2024] TOSC 56; CR 11 of 2024 (14 August 2024)

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

CR 11 and CR 98 of 2024

BETWEEN:
REX
-Prosecution

AND:
ISIAH TAKAU
-Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Mrs. T Vainikolo & Mr. S Tamo’ua for the Crown Prosecution
Mr. Fili for the Accused

Date of Sentence: 14 August 2024

1. THE CHARGES

CR 11 of 2024

1. On 10 June 2024 Defendant pled guilty to the following charges:
   1. Count 1: Possession of Illicit Drugs (11.94 grams of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
   2. Count 2: Possession of Illicit Drugs (0.02 grams of cannabis) contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.

CR 98 of 2024

2. On 18 July 2024, the Defendant pled guilty to the following charge:
   1. Count 1: Cultivation of an Illicit Drug (10 cannabis plants weighing 36.67 grams) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act
      

2. SUMMARY OF FACTS

CR 11 of 2024:

3. The Defendant is Isiah Takau, a 38-year-old male from Ma’ufanga. He was charged together with two others.
4. On 9 October 2023, at 8:40pm the police received reliable information that illicit drugs were being sold at Isiah’s residence and that he was at a residence in Tu’atakilangi where drugs were also being sold.
5. Police arrived and searched Isiah before proceeding to search his vehicle. They discovered a metal container under the steering wheel which was labelled “baking powder”. The container was painted black with a red lid.
6. Inside the metal container were the following items:
   1. One large sized pack containing white substance suspected to be methamphetamine;
   2. 1 large sized pack containing 2 small sized packs consisting of a white substance suspected to be methamphetamine;
   100. Part of an empty pack;
   4. 1 seed suspected to be a cannabis seed;
   5. A magnet that was used to attach the metal container beneath the steering wheel;
7. Police also removed a green NIKE bag from the vehicle. Inside the bag was 1 large sized pack containing large chunks of a white substance suspected to be methamphetamine and cash of $7472 pa’anga.
8. Police found in between the two front seats 1 silver coloured weighing scale which the Defendant admitted belonged to him and which he uses for cooking;
9. The Defendant did not cooperate with Police, exercising his right to remain silent and was arrested for the possession of illicit drugs and utensils.
10. The suspected methamphetamine was confirmed to be methamphetamine weight a total of 11.94 grams.
11. The suspected cannabis seed was confirmed to be cannabis weighing 0.02 grams.
    

CR 98 of 2024:

12. On or about 9 February 2024 around 2pm, Police received reliable information regarding a cannabis plantation maintained by the Defendant at a Lapaha residence.
13. The Drugs squad was briefed, and they left for the resident at Lapaha
14. All the individuals inside the residence were searched and cleared of illicit drugs;
15. The Defendant admitted there were cannabis plants at the back of the house. The Police found 10 cannabis plants that the Accused had planted.
16. The plants were tested and confirmed to be cannabis weighing 36.67 grams.
17. When interviewed by Police, the Defendant exercised his right to remain silent and said he would only speak in Court.
    
    100. AGGRAVATING & MITIGATING FACTORS

For CR 11 of 2024

18. The Crown submits the following as aggravating factors in this case:
    1. Substantial amount of class A illicit drugs (methamphetamine) possessed by the Defendant;
    2. For sentencing, section 4(2)(b) applies, and the Defendant can be properly described as possessing 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 amount of money seized;
    100. The Defendant did not cooperate with Police;
    4. The Defendant is not young.
19. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pled guilty (on the date of his trial);
    2. The Defendant is a first-time drug offender.
       

For CR 98 of 2024

20. The Crown submits the following as aggravating factors in this case:
    1. The Defendant committed the offence whilst out of on bail for CR 11 of 2024;
    2. For sentencing, section 4(2)(a) applies, and the defendant can be properly described as cultivating the illicit drugs for supply. This is based on the number of cannabis plants cultivated.
21. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pled guilty at the first available opportunity;
    2. The Defendant was, to a certain extent, cooperative with the investigation.
       

4. RELEVANT LEGISLATION

22. The maximum penalty for the charges against the Defendant under the Illicit Drugs Act are as follows:
    1. Section 4(1)(a)(iv), for possession of a Class A illicit drug - a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life or both.
    2. Section 4(1)(a)(i), for possession of an illicit drug - a fine not exceeding $5000 or imprisonment for any period not exceeding 7 years or both.
    100. Section 4(a)(ii), for cultivation of an illicit drug - a fine not exceeding $50,000 or imprisonment for any period not exceeding 7 years or both.
         

2. PREVIOUS CONVICTIONS

23. The Defendant has one previous conviction in the Magistrate Court for theft in 2007.

100. SENTENCING COMPARABLES

24. Crown submitted the following cases to assist the court in determining the appropriate sentence for the Defendant:

1. R v Viliami Mangisi CR 10 of 2018.

25. The Defendant was found guilty of possession of 1969.14 grams of methamphetamine and for attempted export of illicit drugs.

26. Justice Cato referred to Zhang guidelines which outlined sentencing band two for possession of illicit drugs less than 250 grams was 2-9 years imprisonment. He was sentenced to 12 ½ years imprisonment for the possession charge and 5 years for the attempted export, to be served concurrently.
27. Justice Cato also referred to band one where it is outlined that possession of illicit drugs 5 grams or less was community-based probation to 4 years imprisonment.
    
    2. R v Motuku Kafalava & Latu Veamatahau, CR 26 & 28 of 2023.
28. The Defendants were jointly charged for possession of 12.09 grams of methamphetamine.
29. Mr Kafalava pled guilty to the methamphetamine charge, possession of 0.65 grams of methamphetamine and possession of utensils.
30. Mr Veamatahau was convicted after trial to possession of 12.09 grams of methamphetamine, possession of utensils and failing to comply with a lawful request.
31. A starting point of 4 ½ years imprisonment was imposed for both Defendants.
32. Considering the totality principle of Mr Kafalava’s offending, he was sentenced to 47 months’ imprisonment to be served in concurrent to his life imprisonment sentence that he is currently serving.
33. Considering the totality of Mr Veamatahau’s offending, he was sentenced to 63 months’ imprisonment with no suspension.
    
    3. R v ‘Amusia Mateni, CR 213 of 2020
34. The Defendant was found guilty after a contested trial and was convicted for possession of 8.08 grams of methamphetamine and interfering with evidence.
35. Lord Chief Justice Whitten gave regards to the Zhang guideline as adopted by Justice Cato in R v Mangisi.
36. Having regard to the seriousness of the offending, the substantial amount of methamphetamine seized, and the authorities cited, a starting point if the methamphetamine charge was set 4 years imprisonment.
37. In relation to the methamphetamine charge, the Defendant was sentenced to 3 ½ years imprisonment with the final 12 years suspended for a period of 2 years on conditions.
    
    4. R v Finau [2021] TOSC 96; CR 69 of 2021 (10 June 2021)
38. The defendant pled guilty to cultivation of 65.94 grams of cannabis; possession of utensils; and possession of 5.62 grams of cannabis seeds.
39. Lord Chief Justice Whitten set the following starting points: 2 years and 3 months imprisonment; 15 months’ imprisonment; and 3 months imprisonment.
40. For the Defendant’s early guilty plea and relevantly previous good record, the starting points were reduced to 10 months’ imprisonment; and 2 months imprisonment. The sentences were concurrent, and fully suspended for a period of 2 years on conditions.
    
    5. R v Saafi [2021] TOSC 10; CR 290 of 2020 (4 February 2021)
41. The Defendant pled guilty to one count of cultivation of illicit durgs contrary to section 4(a)(ii) of the Illicit Drugs Control Act. The plants were weighed at 59.18 grams of cannabis.
42. In this case, I adopted 2 years and 9 months imprisonment further increasing the starting point by 6 months for his extensive list of prior convictions. Although the convictions were not drug-related, it does however demonstrate a predilection of a life of crime and of having no regard to the laws of this country.
43. I deducted 9 months for his mitigating factors of being a first-time drug offender, assisting the police and showing remorse.
44. The final sentence was 2 years and 6 months imprisonment, fully suspended for 2 years on conditions.
    
    6. R v Lao [2022] TOSC 58; CR 65 of 2022 (21 July 2022)
45. Defendant pled guilty to both charges of cultivation of cannabis plants and possession of utensils. It was 42 cannabis plants weighing 45.08 grams and a “bong and can.”
46. Justice Cooper set a starting point of 18 months for the cultivation charge, reduced by 30% resulting in 12 months’ imprisonment.
47. The remaining sentence of 12 months’ was fully suspended for 18 months on conditions.
    
    7. R v Rodney Toki AC 19 of 2022
48. The respondent was found guilty of a string of theft and housebreaking charges taking place in succession. He was sentenced to 5 years ad 4 months imprisonment for these series of offences by Justice Cooper where he had expressly ordered the sentence was to be run concurrently not cumulatively for an existence term of 12 years and 3 months imprisonment.
49. The appellant argued that in consideration of the seriousness of the crime, and the respondent’s lengthy criminal record, it is appropriate for the sentence to be served partially cumulative to the previous sentence despite the possibility of the sentence seeming excessive.
50. In appeal was allowed in this matter.
    
    4. CROWN’S POSITION ON SENTENCING
51. Based on the offending and the relevant authorities, a custodial sentence is appropriate.
52. 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, CR 6 of 2018, 2 August 2018) which summarises as warning to those involved with methamphetamine at any capacity to expect some form of imprisonment.
    

For CR 11 of 2024

53. The most serious offence is count 1 of the indictment. Considering the bands in Zhang v R [2019] NZCA 502, crown submits the offending falls within band 2 which indicates sentence between 2 to 9 years imprisonment.
54. In determining where within this band range the offending falls, with consideration to the recent discussion in R v Cox [2022] TOSC 90 placing the Defendant’s role as significant, Crown submit the offending be placed further up in Zhang’s band 2.
55. Considering the amount of methamphetamine, comparable sentences, his significant role and section 4(2) of the Illicit Drugs Control Act, Crown submitted a starting point of 5 years imprisonment.
56. For his late guilty plea and this being his first time drug offence, Crown submitted a 12-month deduction. This leaves a total of 4 years imprisonment.
57. In relation to Count 2 the appropriate sentence is 2 months imprisonment.
58. Given both counts arose out of the same facts and on the same date, it is appropriate for count 2 to be served concurrently with count 1.
    

For CR 98 of 2024

59. In Vea v R [2004] Tonga LR 177 the Court of Appeal adopted the approach to sentencing in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 where the Court set the following sentencing categories. Category 1 consists of growing a small number of cannabis -plants for personal use without any sale to another party occurring or intended. Category 2 refers to a small-scale cultivation for commercial purposes and Category 3 is a larger scale commercial growing.
60. In consideration of the comparable sentences, the effect of section 4(2) of the Act, the number of cannabis plants cultivated by the Defendant which the Crown submitted was for commercial purposes, and the fact that this offence was committed whilst released on bail for CR 11 of 2024, Crown submitted the appropriate starting point for the head count is 24 months imprisonment.
61. Accounting for the defendants early guilty plea and his cooperation with the Police (although limited), an 8-month reduction to the starting point is appropriate, leaving 16 months’ imprisonment.
    
    1. Suspension
62. The Crown is of the view the Defendant should be granted some suspension of his sentence for CR 11 of 2024 and a very minimal suspension for CR 98 of 2024 considering the guidelines established in Mo’unga v R [1998] Tonga LR 154.
    

For CR 11 of 2024

63. The Defendant is not young as he is currently 39 years old. He has previous convictions but not related to drugs and he did not cooperate with the Police. There was also no diminution of culpability of any kind.
64. The only matter in favour of suspension is the very late guilty plea.
65. Crown proposes that the final 6 months be suspended on conditions.
    

For CR 98 of 2024

66. In addition to his age and no diminution of culpability already mentioned above, the Defendant committed this offence while on bail for CR 11 of 2024. The reoffending is evidence of the likelihood to reoffend rather than utilising a suspended sentence for rehabilitation.
67. The only matters in favour of suspension are the early guilty plea and the limited assistance to Police
68. The Crown proposes that final 3 months be suspended.
    
    2. Cumulative or Concurrent
69. The offences were committed on two separate occasions and should be treated as such. Despite a substantial 4-year imprisonment sentence, the Defendant must be held accountable for each offence individually and in consideration of the wider societal interest.
70. Attorney General v Toki AC 19 of 2022 held that in the interest of justice, it is not sufficient to recognise the Defendant’s bout of criminal offending with a discrete term of imprisonment.
71. Given that the Defendant reoffended shortly after being released on bail, showing a disregard for the law and a high risk of reoffending, a portion of the sentence for CR 98 of 2024 should run cumulatively to the sentence for CR 11 of 2024. The Crown proposes an additional six months to be served cumulatively from CR 98 of 2024.
    
    3. Conclusion
72. The Crown submit the Defendant be sentenced for the totality of the two offending to 4 ½ years imprisonment with the final 6 months suspended.
73. The final 6 months suspended for 2 years on conditions.
74. The Crown also seek orders from the Court destroying the drugs and utensils of these proceedings and for all cash seized to be forfeited to the Crown pursuant to the Illicit Drugs Control Act.
75. Subject to compliance with the Prison Act for conditions and any remissions available, the Defendant will be required to serve 4 years in prison including the time already in bail after bail was revoked for this matter.
    
    5. MITIGATION PLEA
76. Counsel for the Defendant submitted a mitigation plea on the following grounds. The Defendant;
    1. pled guilty on his trial date;
    2. feels remorseful for leaving his family at home while he’s remanded in custody;
    100. has a wife and two children, an eight-year-old son and a one-year-old son;
    4. is reliable and trustworthy in the community with a good education and experience in operating multiple businesses in various areas;
    5. will use his Master’s degree to operate pharmacy to help the people of Tonga;
    6. has learnt his lesson and will be a law-abiding citizen.
77. The Court also received copies of the Defendant’s Master’s qualification and several business certificates.
78. The Defendant asks the Court for a fair and lenient sentence.
    
    6. REFERENCES
79. Counsel for the Defendant submitted several reference letters in support of the Defendant. This included a personal letter from the Defendant himself, his wife and the Salvation Army. I take these reference letters into account when considering his sentence.
    
    7. PRESENTENCE REPORT
       1. Personal History
80. The accused is the eldest of six siblings, and grew up in Pili, Ma’ufanga. He married Malia in 2007, and they lived in China for some time for his studies. They returned to Tonga in 2018 due to Malia’s father's illness.
81. Together, they had two children: a 9-year-old son born in China and a 1-year-old daughter born in Tonga. They now reside with her parents in Halaleva.
82. Malia noted behavioural changes and drug use in the Defendant starting in 2021. These changes included increased anger, sleepless nights, and daytime sleep. By late 2023, he admitted to using illegal drugs.
83. The Defendant holds a master’s degree in clinical pharmacy and a BA in Pharmacy from China. He also studied Science and Chemistry at USP 'Atele in Tonga (2004-2007) and completed secondary school at Tonga High School (1999-2003) and primary school at Tonga Side School (1991-1998).
84. He attends Sunday services at the Free Wesleyan Church of Pili but has no involvement in the village or community activities.
85. The accused is generally healthy but struggles with drug addiction and smoking.
86. He and Malia own several businesses in Tongatapu, employing staff from China, and earn about $6,000 monthly.
87. The accused also provides translation and consultation services due to his proficiency in Tongan, English, and Chinese.
    
    2. Factors Relating to the Offence
88. The Defendant did not cooperate with police and continued to commit a similar offence in CR 98 of 2024 after his offence in CR 11 of 2024.
89. The Defendants continuous drug involvement influenced his wife to accept it as a norm.
    

For CR 11 of 2024

90. The Defendant accepts the summary of facts and admitted to the offending. He further stated the reason of the offending was for personal use.
91. The Defendant has been using cannabis for a long time and this was the first time he got involved with methamphetamine.
    

For CR 98 of 2024

92. The Defendant accepts the summary of facts and admitted to the offending. He further stated the reason for the offending was for personal use.
    
    3. Assessment
93. The Defendant is at “moderate risk” of re-offending in his late change of plea in CR 11 of 2024. He then committed a similar offence shortly after in CR 98 of 2024. This indicates his remorse is deceptive and false.
94. His character towards the offending illustrates a strong link to peer pressure and illegal drug addiction.
95. The Defendants risk of recidivism will be heightened if he continues to associate with negative peers and to continue using drugs. He needs to undergo a program for drug abusers to counter the risks of any relapse.
    
    4. Recommendation
96. The Probation Officer recommends a suspended term of imprisonment under the following conditions;
    1. The Defendant is to be placed on probation.
    2. He is not to commit any offence punishable by imprisonment.
    100. He is to live where directed by the probation officer.
    4. He is to undergo alcohol and drug awareness course (ADAC) with Salvation Army.
    5. He is to complete 70 hours of community work under the supervision of the probation officer.
       

8. DISCUSSION

97. The negative effects of the use and distribution of illicit drugs, particularly methamphetamine, cannot be overstated. The courts have continuously emphasized the seriousness of drug offending through sentencing. First time drug offenders can no longer rely on the fact that they are first time offenders, to escape imprisonment;
98. The circumstances surrounding the charges in CR 11/2024 are serious as it demonstrates that the Accused was selling and supplying methamphetamine;
99. In R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 the court stated the following in relation to methamphetamine:

“Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour; and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved.”

100. Similarly, in R v Ngaue [2018] TOSC 38; Criminal Case 6 of 2018 (2 August 2018), Cato J stated that:

“methamphetamine is a scourge and has affected 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 serous 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 chose 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”

101. The comments by Cato J in Ngaue were endorsed by the Court of Appeal in Maile (above) when it stated that:

“Although Mr. Maile was found in possession of only a small quantity of methamphetamine his offending was serious as this is a Class A drug. In prescribing a maximum penalty of 30 years imprisonment for possession of methamphetamine the Legislature has expressed a clear intention that significant penalties are to be imposed. The distribution and use of methamphetamine in Tonga is a significant Government and community concern...”

102. The Court of Appeal in Maile went on to state that by prescribing a maximum sentence of 30 years imprisonment Parliament obviously shares the concerns raised by Cato J in Ngaue and has sent the courts a message of its own, namely get tough on drug offenders. The courts response should be message received loud and clear.
103. The unequivocal message that must be sent out to the youths and the people of this community is that if you involve yourself in drug offending you will receive an imprisonment term as a general rule and the only question for the judge is how long is appropriate.
104. For CR 11/24, the Crown submits a starting point of 5 years imprisonment for Count 1. This is in line with sentencing bands in Zhang v R [2019] NZCA 502 which have been considered and adopted by the courts in Tonga. Given the accused significant role and the amount of illicit drugs found on him, I agree with the Crown that a starting point of 5 years imprisonment is appropriate in this case;
105. For the mitigating factors of late guilty plea and being a first-time offender, I deduct 12 months from the starting point. This leaves a total of 4 years imprisonment for Count 1.
106. For possession of 0.02 grams of cannabis, the Accused is sentenced to 1 month imprisonment;
107. For CR 98/24, the Crown recommended a starting point of 2 years imprisonment for cultivation of an illicit drug. This is in line with the approach of Court of Appeal in Vea v R [2004] Tonga LR 177 referred to by the Crown above. I accept this proposition and sentence the Accused to 2 years imprisonment on CR 98/24;
108. For the mitigating factors of pleading guilty at the first available opportunity and being cooperative with the Police, I deduct 1 year from the starting point. This leaves a total of 12 months imprisonment for Count 1 of CR 98/24
109. Turning to the question of whether I should suspend any part of the sentence, I have considered the principles in Mo’unga v R [1998] Tonga LR 154 and note that a suspended sentence may be appropriate where an offender is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities and where the accused has pleaded guilty at the earliest opportunity.
110. As pointed out by the Crown, the Accused is not young and is not a first time offender even though he is a first time drug offender. The only matters that favour a suspension is a very late guilty plea for CR 11/24.
111. I suspend 6 months from the total sentence in CR 11/24
112. For CR 98/24, I do not believe that a suspension is necessary;
     
     1. FINAL RESULT
113. For CR 11/24, the Accused is convicted and sentenced as follows:
     1. Count 1 – 4 years’ imprisonment. The final 6 months is suspended for 12 months on the following conditions:
        1. Not to commit a crime punishable by imprisonment after he is released from prison;
     2. Count 2 – 1 month imprisonment concurrent to Count 1;
        
114. For CR 98/24, the Accused is convicted and sentenced as follows:
     1. Count 1 – 2 years’ imprisonment. Three months is to be served consecutive to Count 1 in CR 11/24. The balance is to be served concurrently with CR 11/24;
115. The Accused will serve a total of 3 years and 9 months imprisonment.
116. The imprisonment sentence is to be backdated to when the Defendant was first remanded into custody for this matter.
     
117. I hereby make the following orders in relation to these proceedings;
     1. All illicit drugs and utensils in these proceedings be destroyed pursuant to section 32 of the Illicit Drugs Control Act.
     2. All cash seized in these proceedings are to be forfeited to the Crown pursuant to section 33 of the Illicit Drugs Control Act.
        

NUKU’ALOFA: 14 AUGUST 2024

‘E. M. Langi
J U D G E