R v Latu [2024] TOSC 58; CR 103 of 2024 (20 August 2024)

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

CR 103, CR 32 and CR 80 of 2024

BETWEEN:

REX
-Prosecution

AND:
‘ALIFELETI UEPI LATU
-Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Mr Fifita for the Crown Prosecution
The Defendant in Person
Date of Sentence: 16 August 2024

1. THE CHARGES

1. On 30 May 2024, the Defendant pled guilty to the following charges in CR 80 of 2024:
   1. Count 1: Possession of an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act. (0.55 grams of methamphetamine)
   2. Count 2: Possession of an illicit drug, contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act (1.11 grams of cannabis).
   100. Count 3: Possession of utensils, contrary to section 5A of the Illicit Drugs Control Act. (2 bongs)
   4. Count 4: Possession of Firearm without a Licence, contrary to section 4(1) and 2(b) of the Arms and Ammunition Act. (9mm semi-automatic pistol)
      
2. On 6 June 2024, the Defendant pled guilty to the following charges in CR 32 of 2024:
   1. Count 1: Possession of an illicit drug, contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act. (0.11 grams of cannabis)
   2. Count 2: Possession of ammunition without a licence, contrary to section 4(1) of the Arms and Ammunition Act. (9 .22 ammunition)
3. On 24 June 2024, the Defendant pled guilty to the following charges in CR 103 of 2024:
   1. Count 1: Serious Housebreaking, contrary to section 1743(1)(b) and (5) of the Criminal Offences Act
   2. Count 2: Theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act.
      

2. SUMMARY OF FACTS

4. The Accused is ‘Alifeleti Uepi Latu, male, 33 years old from Tofoa.
   

CR 103 of 2024

5. The complainant here is Siosia Talau, 44 years old from Tofoa.
6. On 27 September 2023, the Defendant entered the house of the complainant when no one was home as a trespasser and committed a crime.
7. The Defendant dishonestly took without any right, Tongan Handicrafts and other items valued at $22,750 from the Complaint’s house.
8. Police were able to recover some of the items valued at $12,030 from several people the Defendant had sold the stolen items to.
9. The rest of the items valued at $10,720 was never recovered by Police and the Defendant did not cooperate with the police during his police interview.
   

CR 32 of 2024

10. On 1 October 2023, Police received information that the Defendant was sighted at Dupincia Building. They were looking for him in relation to another matter.
11. They found the Defendant and were on their way to take him to the police station. At the Defendant’s request they stopped by his house for a change of clothes.
12. In his home, Police discovered a suspicious aluminium wrapped foil on the kitchen table. On inspection it was discovered to be a 9.22 ammunition wrapped inside the foil.
13. Police further searched the Defendant’s vehicle and discovered 1 pack suspected to be methamphetamine and a further 1 pack on the driver’s wheel suspected to be methamphetamine with 1 pack containing green leaves suspected to be cannabis leaves.
14. On 2 October, Police confirmed the two packs suspected to be methamphetamine as Dilethyl Sulfone and the suspected cannabis leaves tested positive for 0.11 grams of cannabis.
    

CR 80 of 2024

15. On 12 January, Police received information that the Defendant was distributing illicit drugs at his home in Tofoa. They acted on this and approached him in his home.
16. A warrantless search was conducted they discovered several items; a purple can, 1 black bag with 1 pack of methamphetamine and 1 pack of cannabis, and 1 pack containing cannabis leaves.
17. The Defendant admitted the items belonged to him and after being cautioned by Police also disclosed a firearm and stolen items he dumped in a bush close to his home in two large black plastic bags.
18. Police found a 9mm handgun and a magazine in one of the bags and was informed by the Defendant he had no license for the firearm.
19. On 18 January, the Defendant did not cooperate with police and chose only to speak in court. He also has previous convictions.
    
    100. AGGRAVATING & MITIGATING FACTORS

CR 103 of 2024

20. The Crown submits the following as aggravating factors in this case:
    1. The Defendant has previous convictions, for property offences.
    2. Value of the stolen goods was substantial - $22,750. Only goods valued at $12,030 were recovered.
    100. Most of the stolen goods were invaluable Tongan handicrafts.
    4. The Defendant did not cooperate with the investigation.
    5. Seriousness of the offending, involving valuable Tongan handicrafts and premeditation.
21. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pleaded guilty at the first available opportunity.
    2. Some of the stolen goods were recovered (valued at $12.030).
       

CR 32 of 2024

22. The Crown submits the following as aggravating factors in this case:
    1. Repeat drug offender
    2. The Defendant committed the offence whilst out on bail for CR 10323.
    100. Seriousness of the offending.
    4. The Accused did cooperate with the Police
    5. Small quantity of cannabis shows that it is highly likely to be intended for personal use.
23. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pleaded guilty at the first available opportunity; and
    2. The Defendant was, to a certain extent, cooperative (admission at the scene during the search without warrant) with the investigation.
       

CR 80 of 2024

24. The Crown submits the following as aggravating factors in this case:
    1. Repeat drug offender.
    2. The Defendant committed the offence whilst out on bail for two separate offences (CR 103 of 24 and CR 32 of 24).
    100. Seriousness of the offending. The quantity of the methamphetamine is 0.55grams suggests that the Accused was in possession of this to supply in light of section 4(2)(b) of the Illicit Drugs Act.
    4. The alleged firearm, a .99mm semi-automatic pistol is a prohibited item.
25. The Crown submits the following as mitigating factors in this case:
    1. The Defendant plead guilty at the first available opportunity; and
    2. The defendant cooperated with the Police at the scene.
       
    4. RELEVANT LEGISLATION

CR 103 of 2024

26. The penalty for serious housebreaking is in section 173(5) of the Criminal Offences Act is imprisonment not exceeding 10 years.
27. The penalty for theft of goods valued more than $10,000 is in section 145(b) of the Criminal Offences Act is imprisonment not exceeding 7 years.
    

CR 32 of 2024

28. The penalty for possession of an illicit drug is in section 4(1)(a)(i) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $5,000 or to imprisonment for any period not exceeding 1 year or both.
29. The penalty for possession of unlicensed ammunition is in section 4(2)(b) of the Arms and Ammunition Act. The maximum penalty is a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.
    

CR 80 of 2024

30. The penalty for possession of an illicit drug is in;
    1. section4(1)(a)(iii) 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.
    2. section 4(1)(a)(i) of the Illicit Drugs Control Act. The maximum penalty is a fine not exceeding $5000 or to imprisonment for any period not exceeding 1 year or both.
31. 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.
32. The penalty for possession of unlicensed firearm is in section 4(2)(b) of the Arms and Ammunition Act. The maximum penalty is a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.
    5. PREVIOUS CONVICTIONS
33. The Defendant has 7 previous convictions in the Magistrate Court all related to theft, common assault, domestic violence and bodily harm. The Defendant’s last conviction in Magistrate was in 2021 for simple bodily harm.
    
    6. SENTENCING COMPARABLES
34. The Crown submit the following cases to assist the Court in determining the appropriate sentence for the Defendant;
    

CR 103 of 2024: Serious Housebreaking & Theft

1. R v Tatafu [2023] TOSC 32, Unreported, CR53/2023, Whitten LCJ KC, 13 June 2023.

35. The Accused was convicted of serious housebreaking, theft, and wilful damage after stealing and damaging appliances worth $14,050 from the Complainant’s home. The Accused’s estranged wife was in a relationship with the Complainant.
36. The court noted that serious housebreaking has a maximum penalty of 10 years imprisonment, reflecting its severity and potential to escalate to violence. Sentencing focused on deterrence and community protection, with factors like the value of stolen goods, break-in timing, and prior convictions being considered.
37. The court set starting sentences of 3 years for serious housebreaking and 12 months for theft. After a 6-month reduction for the Accused’s guilty plea and cooperation, the final sentence was 30 months for serious housebreaking (15 months suspended) and 9 months for theft.
    
    2. R v Tupa [2017] TOSC 35, Unreported, CR76,105/2017 Cato J.
38. The Accused, with a long criminal history, pleaded guilty to three counts of serious housebreaking and three counts of theft involving Tongan mats worth $12,400. Cato J set a starting point of 6 years' imprisonment for the housebreaking charges but reduced it by 12 months for mitigation, resulting in a 5-year sentence. For the theft of the most valuable mats, a 3.5-year sentence was imposed.
39. Cato J emphasized the severity of stealing Tongan mats, highlighting their cultural significance and the presence of an illicit market for them in Tonga. The Judge stressed that such thefts are viewed very seriously, and severe punishments are warranted.
    
    3. R v ‘Ealelei [2019] TOSC 10, CR162/2018, Paulsen LCJ, 15 February 2019.
40. The Accused, a young repeat offender, pleaded guilty to serious housebreaking and theft involving Tongan goods worth $34,269. He was sentenced to 4 years' imprisonment for the housebreaking and 2.5 years for the theft.
    
    4. R v Mahe [2021] TOSC 30
41. The Accused was convicted of serious housebreaking and theft of goods worth $34,000. Justice Langi set a starting point of 5 years' imprisonment for the housebreaking, factoring in previous convictions. The Accused was sentenced to 2 years for the theft, served concurrently with the housebreaking sentence.
    

CR 32 of 2024: Possession of Cannabis and Unlicensed Ammunition

5. R v Manuofetoa [2024] TOSC 17, Unreported, CR147/2023, Tupou J KC.

40. The Accused was found guilty after trial for possession of 0.41g of cannabis. The Accused has previous convictions. He was sentenced to 5 ½ months imprisonment.
    
    6. R v Ngaue [2024] TOSC 12, Unreported, CR155/2023, Cooper J.
       
41. The Accused pleaded guilty to two counts of possession of 89.38g of cannabis and 17 x .22 ammunition. A starting point of 3 months was adopted and reduced to 2 months for mitigation. For the possession of ammunition, the Accused was sentenced to 2 months imprisonment.

CR 80 of 2024: Possession of Illicit Drugs, Utensils and Unlicensed Firearm

7. R v Viliami Mangisi CR 10/18

42. The defendant was found guilty of possessing 1969.14 grams of methamphetamine and attempting to export illicit drugs. Honourable Justice Cato referred to the Zhang guidelines for sentencing:
43. Band Two: Possession of less than 250 grams leads to 2-9 years imprisonment.
44. Band One: Possession of 5 grams or less results in community-based probation or up to 4 years imprisonment.
    
    8. R v Maile AC 23/2018
45. The respondent pleaded guilty to possessing 0.52 grams of methamphetamine and was discharged without conviction by Justice Niu. The Court of Appeal later allowed the Crown's appeal, imposing a fully suspended 9-month prison sentence with conditions.
    
    9. R v Tonga [2020] TOSC 64, CR198/2019, Niu J.
46. The Accused was found guilty on several counts of arm related offences which include possession of 1.26g of cannabis seeds. He was sentenced to 12 months imprisonment on that particular count.
    
    10. R v Maka Latu [2021] TOSC 81
47. The defendant pleaded guilty to multiple drug-related offences across four proceedings, including attempting to swallow methamphetamine and possessing a test tube. He was sentenced to 18 months for attempting to destroy evidence and 9 months for possession of utensils.
    
    11. Rex v Tu’iha’ateiho (CR 116/2013)
48. The Defendant was found guilty after trial for possession of a firearm, namely a .22 semi-automatic pistol. The Defendant was sentenced to a fine of $2500.00 to be paid within 2 months or 3 months imprisonment in default.
    
    12. R v Rodney Toki AC 19/22
49. The respondent was found guilty of multiple theft and housebreaking charges and sentenced to 5 years and 4 months by Justice Cooper, to run concurrently with a previously suspended 12-year sentence. The appellant argued for a partially cumulative sentence due to the seriousness of the crimes and the respondent's criminal record. The appeal was allowed.
    
    7. CROWN’S POSITION ON SENTENCING
44. 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 R v Ngaue (unreported, Supreme Court, CV 6 of 2018, 2 August 2018) at [5] which summarises as warning to those involved with methamphetamine at any capacity to expect some form of imprisonment.

CR 103 of 2024

45. The recommended starting point for sentencing, considering aggravating factors, is 4½ to 5 years for serious housebreaking as indicated in ‘Ealelei and Mahe and 2½ to 3 years for theft. With a 20% reduction for an early guilty plea, the suggested sentences are 3½ to 4 years for housebreaking and 2 to 2½ years for theft.
46. It's proposed that the defendant receive 4 years for housebreaking and 2½ years for theft, served concurrently.
    

CR 32 of 2024

47. The recommended starting point for Count 2, considering aggravating factors, is 9 to 12 months, including an additional 3 months for breaching bail in CR 103 of 2024. For possession of cannabis, the starting point is 6 to 9 months. With a 20% discount for an early guilty plea, the proposed sentences are 6 to 9 months for Count 1 and 1 to 4 months for Count 2.
48. It’s proposed that the accused be sentenced to 9 months for possession of ammunition and 4 months for possession of cannabis, served concurrently.
    

CR 80 of 2024

49. Count 1 (head count) is possession of 0.55g of methamphetamine. The court needs to determine the seriousness of the offense by considering both the quantity of the drug and the Defendant's role, which ranges from "lesser" to "significant" as set out in R v Cox [2022] TOSC 90.
50. The Crown argues that the Defendant’s role is between lesser and significant, noting that the presence of a smoking utensil and cannabis indicates personal use.
51. Due to aggravating factors like repeated legal violations and a history of relevant convictions, the starting sentence is suggested to be 15-18 months’ imprisonment.
52. Considering the Defendant’s guilty pleas and cooperation, a 20% reduction is recommended, leading to the following recommended sentences:
    1. Count 1: 14 months imprisonment
    2. Count 2: 3 months imprisonment
    100. Count 3: 4 months imprisonment
    4. Count 4: 9 months imprisonment
53. Sentences for counts 2, 3, and 4 should run concurrently with the sentence for count 1.
    
    1. Suspension
54. In light of Mo’unga v R [1998] Tonga LR 154, the Crown argues for minimal suspension of the Defendant’s sentence.
55. At 33 years old, with prior drug convictions and recent offences committed while on bail, the Defendant’s pattern of reoffending suggests he is unlikely to benefit from a suspended sentence. There is no reduction in culpability for the current offences.
56. The only factors favouring suspension are the early guilty pleas and limited assistance to the Police.
57. The Crown proposes that 9 months of the sentence be suspended.
    
    2. Cumulative or Concurrent
58. The Defendant's guilty pleas and request for concurrent sentencing prompt the Crown to apply the totality principle. Despite similarities, the offences occurred on separate occasions and should be treated as such.
59. In Attorney General v Toki [2022], it was ruled that multiple offences require separate accountability, even with a substantial overall sentence.
60. Although a 5-year, 11-month aggregate sentence is significant, it is crucial to serve some sentences consecutively due to the Defendant’s history and the quick succession of offences committed while on bail.
61. Applying the totality principle, sentences CR 32 of 2024 and CR 80 of 2024 should each be partially cumulative to CR 103 of 2024—three months for CR 32 of 2024 and six months for CR 80 of 2024.
62. The total aggregate sentence is 4 years and 9 months.
    
    3. Conclusion
63. The Crown submit that the Accused be sentenced for the totality of the three offendings, to 4 years 9 months imprisonment.
64. The final 9 months suspended for 3 years on conditions.
    
    8. PRESENTENCE REPORT
       1. Personal History
65. The Defendant is the second out of four siblings. His parents separated when he was young, and he and siblings then lived with their grandma. His upbringing was unstable due to his parents’ marital issues.
66. The Defendant was married with three children but has since separated three years ago. His children range from age three to seven years old, and he is not in contact or has gone to visit them.
67. The Defendant is currently in a de-facto relationship with another women and has a two-year-old child with this women. His de-facto partner is currently pregnant.
68. The Defendant had talent for sports and even represented Tonga in the Pacific Tennis Competition. He finished school in form 5 then joined a group of seasonal fruit picking but didn’t continue because he was lazy.
69. The Defendant does not attend church, and it is reported by the town officer that the Defendant is a significant risk to the community. The town officer has requested to the Prison Commissioner that he be notified when the Defendant is released so that he can warn the community to take caution with their property.
70. The Defendant’s de-facto partner states that they have been together for three years. She had no idea there were drugs in their home, but she suspected it based on his conduct. She knew the Defendant used drugs but he never used drugs in their home.
71. The Defendant has no health issues and he is currently unemployed. They solely rely on his mother’s money transfers from the United States.
    
    2. Factors Relating to the Offence
72. The Defendant pleaded guilty to the charge and admits to the summary of facts and that he had used both methamphetamine and cannabis.
73. The Defendant has a previous record.
    
    3. Assessment
74. The Defendant is a high-risk individual but repeatedly states that he regrets his action and that his experience in prison has allowed him to grow as a person.
    
    4. Recommendation
75. It is recommended for a partially suspended sentence on the following conditions:
    1. Commit no further offence during his suspension term
    2. Attend a life skills course with the Salvation Army
    100. Any other conditions deemed appropriate by the court
         

1. DISCUSSION

CR 103 of 2024 (27 September 2023)

76. The Crown submits that starting point for Count 1 should be between 3 – 4 years, in line with the sentencing comparable in ‘Ealelei and Mahe. I adopt a starting point of 3 years imprisonment;
77. I consider the fact that the accused has previous convictions for property offences a serious aggravating feature in this case. However, whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing the accused twice for the same offences on which he had previously been convicted and sentenced. In R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 Sir Michael Meyers CJ stated at 597

“The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that he previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and the prisoner’s previous convictions are involved in the question of his character. Further the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly”.

78. I am mindful that any additions made to the sentence in this case does not punish the accused twice for offences which he has been convicted and sentenced, but his previous convictions for property offences do indicate a predilection to commit the particular type of offences of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
79. I add on another 12 months to his sentence for his previous convictions for property offences of which I take as serious aggravating factors in this case. This brings his total term of imprisonment to 4 years imprisonment;
80. For his early guilty plea, I deduct 6 months, leaving a balance of 3 years and 6 months imprisonment;
81. For the charge of theft, I sentence the Accused to 2 years’ imprisonment to be served concurrent to Count 1;
    

CR 32 of 2024 (1 October 2023)

82. The Crown submits that count 2 should be the head count in CR 32 of 2024 (possession of nine .22 ammunitions). Based on the comparable sentences referred to above, the Crown submit a starting point between 6 – 9 months imprisonment. I adopt a starting point of 6 months imprisonment for the ammunition charge.
83. I add on another 1 month to the starting point to reflect the accused’s blatant disregard of the conditions of his bail in CR 103 of 2024. Therefore, for Count 2 the accused is sentenced to 7 months imprisonment;
84. For count 1, possession of cannabis, I sentence the accused to 1 month imprisonment concurrent to count 2;
85. Two months from the sentence in Count 2 is consecutive to Count 1 in CR 103 of 2024;
    

CR 80 of 2024 (12 January 2024)

86. In previous sentences for possession of methamphetamine under 1 gram I have set the starting point at 12 months imprisonment even for very minimal amounts (R v Tafuna CR 198/20, R v Angilau CR 103/20, R v Suasau CR 120/20, R v Lave CR 185/20). This is to reflect the views of the courts towards this destructive and dangerous drug and to emphasize the views stated by the Court of Appeal in Maile and Cato J in Ngaue. This starting point will then be increased and decreased depending on the aggravating and mitigating factors. However, because the Accused breached his bail conditions twice, in the he committed this crime whilst he was on bail for two different offences (CR 103 of 2024 and CR 32 of 2024), I add on another 6 months to the starting point. This makes a total of 18 months;
87. I give him a discount of 3 months for early guilty plea leaving a balance of 15months imprisonment for count 1;
88. For possession of 1.11g cannabis, I set a starting point of 6 months imprisonment. For his early guilty plea I give him a discount of 3 months imprisonment leaving a balance of 3 months imprisonment for count 2;
89. For possession of 2 bongs (utensils) used for smoking cannabis, the accused is sentenced to 3 months imprisonment on count 3;
90. For possession of 9mm semi-automatic pistol, the accused is sentenced to 6 months imprisonment on count 4;
91. The imprisonment terms in count 2, 3 and 4 are all concurrent to count 1;
92. Five months from his sentence in Count 1 will be served consecutive to Count 1 in CR 103 of 24 to reflect the aggravating factors of going on a crime spree whilst he was on bail;
    
    10. FINAL SENTENCE

CR 103 of 2024

93. Count 1 (Housebreaking) – Three years and six months imprisonment (42 months);
94. Count 2 (Theft) - 2 years’ imprisonment to be served concurrent to Count 1;
    

CR 32 of 2024

95. Count 2 (Possession of ammunition): 7 months imprisonment. I order that two month is to be served consecutive to Count 1 in CR 103/24. This is to reflect the Accused’s blatant disregard of the law and of his bail conditions of which he breached (CR 103/24). The balance of five months is suspended for 12 months on condition that he not commit any further offences when he is released from prison.
96. Count 1 (Possession of cannabis)– one month imprisonment;
    

CR 80 2024

97. Count 1 (Possession of Class A drug): 15months imprisonment. I order tha five months is to be served consecutive to Count 1 of CR 103 of 2024.
98. Count 2 (Possession of Class B drug): Six months imprisonment concurrent to Count 1;
99. Count 3 (Possession of utensils): One month imprisonment;
100. Count 4 (Possession of firearm) – Six months imprisonment concurrent to Count 1;
101. The balance of 10 months from Count 1 is suspended 12 months.
102. The Accused will serve a total of 4 years and 1 month imprisonment. The last 12 months is suspended for 3 years on the following conditions:
     1. Not to commit any further offences punishable by imprisonment for a period of 3 years upon his release;
     2. The Accused is to be placed on probation during the period of his suspension;
103. The final sentence of imprisonment is to be backdated to when the Accused was first remanded into custody for these proceedings.
104. As requested by the Crown, I order that the drugs seized and all items associated with drugs such as the weighing apparatus and plastic packs are destroyed, the cash is forfeited to the Crown and the ammunition and gun is forfeited to the police.
     

NUKU’ALOFA: 20 August 2024

‘E. M. Langi
J U D G E