R v Maile [2024] TOSC 61; CR 115 of 2024 (10 September 2024)

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

CR, 115, 111 & 109/2024

Rex

v

Sila ki Vai Maile
Foketi Tonga Fate
Siosifa Fili

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: for the Prosecution
All the defendants were unrepresented.
Date of: 10 September 2024

ORDER OF: COOPER J
DATE OF ORDER: 10 September 2024

THE COURT ORDERS THAT

1. Mr. Maile’s 6 month suspended sentence is activated. For the instant offences he is sentenced to 1 month and 3 weeks’ imprisonment, no part of which is suspended. That sentence is to be back dated to his first remand.
2. Mr. Fate will serve 4 months’ imprisonment, fully suspended.
3. Mr. Fili is sentenced to 18 months’ imprisonment, the last 6 months suspended on conditions. That sentence to be back dated to his first remand.

REASONS

1. On 29 December 2023 the police attended a tax allotment in Vaini, having received information suggesting that there were individuals in possession of illicit drugs there.
2. From vehicles and fales at the allotment 10 people were arrested and taken in for questioning. A number of seizures of illicit drugs and drug paraphernalia, as well as firearms, ammunition and a machete were made. All 10 were committed from the Magistrates’ court to the Supreme Court and appeared there for their arraignment on 15 July 2024.
3. These three defendants pleaded guilty on that date and had their cases adjourned for pre-sentence reports to be compiled. The others pleaded not guilty and currently await their trials.
4. The allegations they pleaded guilty to were:

Sila Ki Vai Maile

(Count 8)

Sila-ki-Vai Maile of Veitongo, on or about 30 December 2023, did knowingly without lawful excuse possess a Class B illicit drug, when he had in his possession 0.66 grams of cannabis.

(Count 9)

Sila-ki-Vai Maile of Veitongo, on or about 30 December 2023, did knowingly without lawful justification possess 1 straw used for packing illicit drugs.

Foketi Tonga Fate

(Count 10)

Foketi Tonga Fate on or about 30 December 2023, at Vaini, you did knowingly without lawful excuse possess a Class B illicit drug, when he had in his possession 8.27 grams of cannabis.

Siosifa Fili

(Count 12)

Siosifa Fili of Tatakamotonga on or about 30 December 2023, at Vaini, did knowingly without lawful excuse, possess a Class A illicit drug, when he had in his possession 1.62 grams of methamphetamine.

(Count 13)

Siosifa Fili of Tatakamotonga on or about 30 December 2023, at Vaini, did knowingly without lawful excuse possess a Class B illicit drug, when he had in his possession 14.64 grams of cannabis.

(Count 14)

Siosifa Fili of Tatakamotonga on or about 30 December 2023, at Vaini, did knowingly without lawful excuse possess 350 empty packs, used for packing illicit drugs.

5. Mr. Maile was arrested in one of the fales, though it is not clear from the summary how he came to be there or where he was found therein. In any event, he had in his possession a small quantity of cannabis (0.66 grams) and a straw in his back trouser pocket. Arrested and cautioned, he claimed the cannabis belonged to a girl he had come to the property with and the straw he found.
6. Whilst the police operation was being carried out, Mr. Fate arrived in a vehicle with another male, he was the front passenger. Mr. Fate was observed to act surreptitiously, making guarded movements to his side, as if concealing something.
7. A search of a cigarette packet placed by his seat revealed 15 separate dealer packets of cannabis stored inside. Their total weight was 8.27 grams.
8. Minutes later a further vehicle arrived, it had no headlights illuminated. The driver was holding a torch. Mr. Fili was driving the vehicle, another male was in the front passenger seat. The front passenger was seen to discard a bag from his side window and then attempt to conceal something in the dashboard.
9. The police recovered from both the bag on the ground and within the vehicle 29 packets of cannabis (14.64 grams), 17 packets of methamphetamine (1.62 grams) and 350 empty packs. A further bag of methamphetamine and a plastic scoop were also found in the vehicle by the driver’s side.
10. Mr. Fili had $150 in cash in his hand and a further $405 was recovered found hidden in his phone case.
11. When both men were arrested and cautioned, between them they explained all the illegal items belonged to Mr. Fili.
12. All those detained were taken to Central Police station. All but one exercised his right to silence, he is one of the men awaiting trial and not one of these three men who fall to be sentence.

Previous convictions

13. Mr. Maile has previous matters recorded against him. In 2016 and 2019 he had a number of matters of housebreaking and theft recorded against him. He was on the first occasion given a suspended sentence, upon conditions including he perform a community service order. In 2019 he was sent to prison for two months.
14. In 2023 he was twice arrested for illicit drug offences. Both offences were disposed of on the same day in the Fasi Magistrates’ court, 15 December 2023, when he was given a sentence of 6 months’ imprisonment, suspended for 2 years.
15. Thus, less than two weeks later he was committing these offences.
16. Mr. Fate has two previous convictions for illicit drug possession. For both offences he was sentenced to a fine with a period of custody in lieu in March and then July 2017 respectively. From the record it is not clear what the illicit drugs in question were.
17. In 2021 he was discharged without a conviction for possession ammunition, the type and quantity is not recorded.
18. Mr. Fili has two previous convictions. Both in 2019, one for two offences of bodily harm, the other in respect to possession illicit drugs.
19. What he has sentenced to in regard to those matters has not been provided.

Pre-sentence reports

20. Mr. Maile is 28 years old, single. His parents left him and his sister and they were raised by their grandparents. His schooling was both uneventful and incomplete. He dropped out and went to help his grandfather on his allotment.
21. The probation report states the lack of love and parental support is at the heart of Mr. Maile’s criminal conduct. He is apparently remorseful and accepts his offending.
22. The probation officer notes that in the past he appears not to have taken the opportunities to reform the suspended sentences were intended to provide.
23. It is highly recommended he complete drugs and alcohol awareness and life skills courses.
24. Mr. Fate is 49 years old, divorced and now living with his de facto partner in Tatakamotonga. His eight children from his earlier marriage live with his mother.
25. His education faltered as he was in the habit of running away from school. Whereas his church attendance is good and was known to take part and support community events, he drinks, smokes and takes illicit drugs.
26. He has a weekly income of some $400.00 per month a carpenter. He is said to be a high risk of re-offending.
27. Mr. Fili is 35 years old, married and live variously in Fua’amotu and Tatakamatonga where he and his family attend the Free Wesleyan church. He and his wife have four children, whose ages range between 5 and 1 years old.
28. He used to be involved in the seasonal worker’s scheme in Australia. He paid for the family’s new home. Recently he has been working as a mechanic.
29. The Town Officer spoke of him as being helpful and supportive in the community. His wife was shocked and stated she had no idea he was involved in illicit drugs.
30. Probation noted that Mr. Fili is remorseful.

Crown sentencing submissions

31. Mr. Maile is recommended to serve 6 months on a plea, the last 2 suspended with a concurrent term for possession of the utensils. Mr. Fate 9 months for his timely guilty plea, the last 3 suspended. Mr. Fili 20 months for his guilty plea, the last 6 suspended and concurrent terms for the other two offences.

Statutory framework

• Possession of Class A illicit drugs exceeding 1 gram contrary to section 4 (1) (a) (iv) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $1,000,000.00 or to imprisonment for any period not exceeding life or both.
• Possession of Class B Illicit drugs less than 28 gram contrary to section 4 (1) (a) (i) Illicit drugs Control Act, the maximum sentence is a fine not exceeding $5,000.00 or to imprisonment for any period not exceeding 1 year or both.
• Possession utensils contrary to section 5 A, a fine not exceeding $10,000.00 or to imprisonment for a term not exceeding 3 years, or both.

Comparable sentences

32. CR 154/2023 R v Kolotau; possession 0.75 grams this Court imposed a 40-hour Community Service Order. CR 156 /2023 R v Ngauea, a like sentence imposed by this Court for possession 0.35 grams cannabis.
33. R v Namoa, Sekona & Finau 58, 59 & 61/ 2022 for 4 empty snap bags, and possession of a single test tube, a starting point of 6 months.
34. CR 87/2022 R v Holani, possession 5.57 grams cannabis a starting point of 1 year’s imprisonment. R v ‘Akau ‘ola CR 260/20 Justice Tupou imposed a 6-month sentence fully suspended for possession 3.94 g cannabis after a plea of guilty, with a 50 hours Community Punishment Order
35. In cases possession methamphetamine the starting point is the consideration of Zhang v R [2019] NZCA 507 that revised the tariffs for methamphetamine offending set in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).
36. Whitten LCJ in R v Paletu’a [2021] TOSC 49, approved that approach.
37. The bands set are these:

Band 1 under 5 g community penalty – 4 years

Band 2 under 250 g 2 – 9 years

Band 3 under 500 g 6 – 12 years

Band 4 under 2 kg 8 – 16 years

Band 5 over 2 KG 10 years – life.

38. CR 87/2022 R v Holani, possession 1.68 grams methamphetamine, a starting point of 2 years’ imprisonment.

Aggravating features

39. Mr. Maile committed these offences very shortly after being given a suspended sentence for drugs offences; less than two weeks later.
40. In Mr. Fate’s case this plainly was commercial supply as the drugs were separately packaged, further the attempt to dispose of all items.
41. Mr. Fili, likewise that this was commercial supply, plain from the quantity of individually packed items.

Mitigating features

42. Guilty plea on the part of each is the only mitigating feature.

Sentences

43. Mr. Maile will have to serve the 6 month suspended sentence imposed by the Magistrates’ court for CR 609, 610 and 611/2023
44. 1 month for the offence possession cannabis, reduced to 3 weeks.
45. 6 weeks for the possession utensils, reduced to 4 weeks.
46. For each those terms will be consecutive because of the fact of the aggravating feature, his offending so shortly after receiving a suspended sentence for like offending; it shows a complete disregard for the law.

Total sentences

Mr. Maile

47. The 6 month suspended sentence is activated and at its conclusion he is to serve 1 month and 3 weeks.

Mr. Fate

48. 6 months reduced to 4 for his guilty plea.

Mr. Fili

49. 2 years reduced to 16 months. For the cannabis possession 9 months reduced to 6; the utensils, 9 months reduced to 6. The latter counts will run concurrent with the sentence for possession methamphetamine.

Suspension

50. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
51. Those principles, as set out in that case, aim to promote rehabilitation.
52. The considerations involved were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
53. Given Mr. Maile’s complete disregard for the suspended sentence imposed that same month, then being caught again drug offending, he will serve the sentence in full and no part will be suspended.
54. Mr. Fate, albeit he has previous convictions for possession illicit drugs those were 6 to 7 years ago and he has been out of all trouble since January 2021, accordingly I shall fully suspend his sentence of 4 months’ imprisonment for 2 years on condition that he
    1. reports to probation by noon today
    2. does not commit any offences punishable by imprisonment
    3. completes 40 hours Community Service Order
    4. completes a drug awareness course.
55. Mr. Fili will have the last 6 months of his 18 month suspended for 2 years on condition he
    1. reports to probation within 48 hours of his release
    2. does not commit any offences punishable by imprisonment
    3. completes a drug awareness course.

Ancillary orders

56. All drugs and paraphernalia to be forfeited and destroyed.
57. All monies are forfeited.
    

Conclusion

58. Mr. Maile will serve his 6 month suspended sentence, thereafter 1 month and 3 weeks’ imprisonment for the instant offences. No part of either sentence is suspended. That sentence to be back dated to his first remand.
59. Mr. Fate, 4 months’ imprisonment, fully suspended.
60. Mr. Fili, 18 months’ imprisonment, the last 6 months suspended on conditions. All time served on remand must count towards his sentence.
    

SUPREME COURT	10 SEPTEMBER 2024
NUKU’ALOFA	COOPER J