R v Loto'aniu [2024] TOSC 57; CR 66 of 2024 (14 August 2024)

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

CR 66 of 2024

REX
-Prosecution

AND:
TEVITA KAUVAKA LOTO’ANIU
-Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Mrs. T Vainikolo & Mr. or the Crown Prosecution
The Defendant in Person with Prison Officer Saafi

Date of Sentence: 14 August 2024

1. THE CHARGES
   1. On 22 May 2024, the Defendant pled guilty to the following charges:
      1. Count 1: Possession of an illicit drug contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act. (1.42 grams of methamphetamine)
      2. Count 3: Unlawful Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act (one weighing scale, a smoking pipe and a straw)
         
2. SUMMARY OF FACTS
   2. The Defendant is Tevita Loto’aniu (“Tevita”), a 28-year-old from Houmakelikao.
   3. On or about 3 Janurary 2024 at 12:30am, the Police received information that Irvin was selling illicit drugs at the residence of Woody Kalekale at Houmakelikao.
   4. The Police after confirming this information acted in it and went to conduct a search operation at Woody’s residence.
   5. The Police got to the residence then entered the first house at the residence and identified the defendant inside. The Police then handcuffed Irvin Fukofuka who sat on the bed and the Defendant who was sitting beside the bed.
   6. The Police informed the Defendant’s they would be conducting a search without a warrant in relation to illicit drugs pursuant to section 24 of the Illicit Drugs Control Act.
   7. The Police commenced their search in the room where the Defendants were found. The Police found a small black Addidas bag on top of a speaker containing one silver weighing scale (Exhibit 1) and $100 (Exhibit 2).
   8. The Defendants were informed of their right to remain silent by Police then asked them about a bag. Irvin informed the Police that the bag and scale are his and he uses the scale for weighing gold.
   9. Police continued their search and found inside the wall of the room, 1 large pack containing white substance (Exhibit 3) and 1 plastic pack which contained a pack with a while substance inside it (Exhibit 4).
   10. The Police informed the Defendants of their right to remain silent then asked about the packets found inside the wall. Irvin denied having any knowledge about it and Tevita said it was a pack of methamphetamine and that it was not there before, and it belonged to Irvin.
   11. The Police the continued their search and found 1 pack containing 6 empty packets (Exhibit 6) under the bed. The Police reminded the Defendants of their right to remain silent then asked them about the empty packs. Tevita answered saying it was on top of the glass table, but he threw it under the bed when the Police arrived.
   12. The Police also found 1 smoking pipe and 1 part of a straw (Exhibit 7) at the corner of the room. The Police reminded the Defendants of their right to remain silent then asked them about the utensils found. Irvin answered saying he has no knowledge about it but Tevita said the items belonged to Irvin and that it threw it to the corner when the Police arrived.
   13. The Police concluded their search at Woody’s residence then arrested the Defendants and remanded them into custody.
   14. On the same day, Police tested the white substance and confirmed it to be methamphetamine weighing 1.141 grams.
   15. The Defendant did not cooperate with the Police and chose to remain silent.
   16. The Defendant has previous convictions.
       

100. AGGRAVATING & MITIGATING FACTORS
     17. The Crown submits the following as aggravating factors in this case:
         1. The quantity of drugs possessed by the Defendant warrants an imprisonment sentence.
         2. The Defendant is not a first-time offender, but is a first-time drug offender
         100. The presumption in section 4(2)(a)(b) of the Illicit Drugs Control Act and possession of the empty packets, weighing scale, smoking pipe and straw strongly suggest that the Defendants are low-level suppliers and is in possession with the intent to supply and use.
         4. The Defendant did not cooperate with police
            
     18. The Crown submits the following as mitigating factors in this case:
         1. The Defendant pled guilty at the earliest opportunity.
            

4. RELEVANT LEGISLATION
   19. The penalty for possession of utensils in section 5A of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $10,000 or imprisonment for any period not exceeding 3 years or both.
   20. The penalty of possession of a Class A illicit drug exceeding 1 gram 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 exceeding life or both.
       
5. PREVIOUS CONVICTIONS
   21. The Defendant has 5 previous convictions in the Magistrates Court for drunkenness, domestic violence, driving under the influence and negligent driving, assault and theft. The Defendant’s last conviction was on 23 October 2020.
       
6. SENTENCING COMPARABLES
   22. The Crown Submit the following cases to assist the Court in determining an appropriate sentence for the Defendant:
       1. R v Samiuela Fiefia, CR 131 of 2021
   23. The Defendant pled guilty to 1.19 grams of methamphetamine, possession of 4.27 grams of cannabis and possession of utensils.
   24. The Defendant was a first-time drug offender but had an extensive criminal record for violence, housebreaking, damaging property and domestic violence.
   25. The scales, money and collection of empty dealer bags indicate the Defendant was a drug dealer.
   26. A starting point of 12 months was imposed with 4 months deducted for the mitigating factors. The Defendant was sentenced to 8 months imprisonment with no suspension.
       
       2. R v Siu Holani, CR 65 of 2020
   27. The Defendant pled guilty to one count of supplying 1.58 grams of methamphetamine.
   28. The Defendant was 27 years old, a first-time offender and cooperated with the police.
   29. A starting point of 2 years was imposed with 6 months deducted for mitigation.
   30. The Defendant was sentenced to 18 months with the final 9 months suspended on conditions.
       
       3. R v Maika Namoa, CR 58 of 2022
   31. The Defendant pled guilty to possession of 1.33 grams of methamphetamine, and he was not a first time offender.
   32. A starting point of 18 months’ imprisonment was imposed and was mitigated by 6 months. The Defendant was sentenced to 12 months’ imprisonment.
       
7. CROWN’S POSITION ON SENTENCING
   33. Based on the offending and the relevant authorities cited, a custodial sentence is appropriate. In R v Maile [2019] TOCA 17 at [18], the Court of Appeal held that those involved with methamphetamine in any capacity, even small amounts can expect to receive a custodial sentence. To illustrate, the court cited R v Ngaue (unreported Supreme Court, CR 6 of 2018, 2 August of 2018) at [5] and [6], where Cato J summarised LCJ Whitten in R v ‘Amusia Mateni CR 214 of 2020 at [16]
       1. Methamphetamine is a scourge to societies everywhere that has affected a great deal of harm and misery;
       2. The distribution and use of methamphetamine in Tonga is a significant government a community concern;
       100. In prescribing a maximum penalty of 30 years imprisonment, the legislature has expressed a clear intention that significant penalties are to be imposed; and
       4. Therefore, those involved with methamphetamine in any capacity, even small amounts can expect custodial sentences.
   34. The most serious offence is count 1 of the indictment. The Defendant’s offending is placed in Band 1 of the guidelines for Class A drugs provided by the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507, because the weight of 1.41 grams is less than 5 grams, this imputes a sentence community-based equivalent to 4 years.
   35. But, as discussed recently in R v Cosx [2022] TOSC 90, the task of identifying where within that range the offending falls requires consideration not only of thew quanittiy but also the role the Defendant played in the offending (“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.”
   36. The Crown submit in that regard, the defendant is a low-level drug supplier. The presence of methamphetamine and drug related paraphernalia are all consistent with the Defendant being involved in the supply of illicit drugs.
   37. Accordingly, Crown submit the Defendant’s level of culpability here is “lesser”. And his starting point should be mid-range of Zhang band one.
   38. Due to the amount of methamphetamine, the comparable sentences, his significant rile and the operation of section 4(2) of the Illicit Drugs Control Act, and his previous convictions, the appropriate starting point for the head count is 18 months’ imprisonment. This is supported by R v Harris Satini, CR 277 of 2019 at [27-29].
   39. Given that this is the Defendant’s first drug offence and his early guilty plea, Crown is satisfied that he is entitled to 6 months discount and a partial suspended sentence in accordance with the principles in Mo’unga at 157.
   40. For Count 3, the appropriate sentence is 4 months imprisonment to be concurrent to Count 1.
   41. Crown submit the Defendant be sentence to 12 months’ imprisonment with the final 3 months suspended for 2 years on conditions.
       
8. PRESENTENCE REPORT
   1. Personal History

42. The Defendant was born on 13 May 1996, and is the third child of seven siblings. He grew up with his siblings in Houmakelikao and his father passed away in 2005.
43. He grew up with his mother until she remarried and migrated to New Zealand with her husband.
44. In class 5, he was adopted by his aunt and attended church with them because his aunt’s husband was a church minister.
45. The Defendant is single and a school dropout since form 1 at ‘Eua High School. He now lives at Houmakelikao at his uncle’s house (Woody Kalekale).
46. He is currently unemployed, but he used to work in construction and would earn up to $350 per week.
47. The Defendant is in good health apart from some occasional stomach aches.
48. The Defendant drinks and admits to drug use.
    
    2. Factors Relating to the Offence
49. The Defendant admitted to the offence on interview and accepts the summary of facts.
50. The Defendant has shown some remorse for the offending.
51. He is not a first-time offender, and he has previous convictions.
52. The Defendant also has a current pending case in the Magistrate Court for unlawful entry into a premises by night.
    
    3. Assessment
53. The Defendant pled guilty to one count and is appearing for sentencing for possession of utensils.
54. He expresses some form of remorse for his crime.
55. The risk of re-offending for the Defendant will be heightened if he continues to engage in drug use.
56. The Defendant is unreliable and not trustworthy. He has caused problems for his neighbours for illegal entry and being involved in drug-related activities.
57. The town officer states, the community feel safe and comfortable when the Defendant is not around.
    
    4. Recommendation
58. It is recommended the Defendant be given a partly suspended sentence on the following conditions during his suspension:
    1. Not to commit any offence punishable by imprisonment
    2. He is to report to Probation Office within 48 hours after release.
    100. He is to be placed on probation
    4. Complete a course on alcohol, drug awareness and life skills in the Salvation Army.
       

1. STARTING POINTS
   59. The maximum statutory penalties for the drug related offences are:
       1. possession of methamphetamine - a $1 million fine, life imprisonment or both;
       2. attempting to destroy the evidence - 15 years imprisonment; and
       100. possession of utensils - a $10,000 fine, three years imprisonment or both.
   60. As recently observed in R v Haisila [2022] TOSC 40 [2022] at [16], the continuing seriousness of methamphetamines in Tonga is reflected in statements by the Courts such as in Ali [2020] TOSC 94:

“Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply and use of insidious illicit drugs like methamphetamines...”

and more recently by the Court of Appeal in Attorney General v Fua'eiki [2021] TOCA 20:

“[14] More recent examples of sentencing for possession of methamphetamine for the purpose of supply referred to by the Crown in support of the appeal reflect a growing concern with the prevalence of methamphetamine use and a view that even first offenders should be required to serve part of their prison sentence. The importance of denouncing and deterring serious drug offending has been emphasised.”

61. For Tevita Loto’aniu, I endorse the sentencing approach recommended by the Crown for Count 1 as appropriate given the circumstances of his case and sentencing precedents referred to. The starting point for possession of 1.42 grams of methamphetamine is 18 months imprisonment.
62. For the mitigating factors of being a first-time drug offender and early guilty plea, I deduct six months, leaving a total of 12 months imprisonment.
63. The Crown recommends a partial suspension, and I agree that the circumstances do warrant a partial suspension and order three months of the sentence is suspended on conditions;
64. For count 3, unlawful possession of utensils, the Accused is sentenced to 4 months imprisonment to be served concurrent to count 1.
    

10. FINAL RESULT
    65. Count 1 – 12 months imprisonment with the final 3 months suspended for 12 months on the following conditions:
        1. Report to the probation officer within 48 hours after being released from prison;
        2. Live where directed by the probation officer;
        3. Not to commit any offence punishable by imprisonment during the term of the suspension;
        4. Enrol with life-skill programs under the guidance of the probation officer;
    66. Count 3 – 4 months imprisonment concurrent to Count 1;
    67. Total period of imprisonment to be served is 9 months and is to be backdated to when the Defendant was remanded for this matter.
        
    68. I hereby make the following order in relation to this proceeding;
        1. All illicit drugs and utensils in this proceeding is to be destroyed pursuant to section 32 of the Illicit Drugs Control Act.
           

NUKU’ALOFA: 14 August 2024

‘E. M. Langi
J U D G E