R v Halatokoua [2024] TOSC 62; CR 127 of 2024 (18 September 2024)

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

CR 127/2024

REX

-v-

Tevita HALATOKOUA

Sentencing remarks

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. Aleamotu’a for the Crown.
Mr. Halatokoua was unrepresented.
Dated : 18 SEPTEMBER 2024

ORDER OF COOPER J
DATE OF ORDER 18 SEPTEMBER 2024

THE COURT ORDERS THAT

1. Mr. Halatokoua is sentenced to 2 years’ imprisonment, the last 6 months suspended for 18 months on conditions.
   

REASONS

1. It is quite clear that on 20 March 2024, Mr. Halatokoua had set himself up as a drug dealer, supplying methamphetamine. The fact of his being caught with the equipment for dealing; over 20 packets of methamphetamine, in separate dealer bags, a significant quantity of cash and weighing scales, that he had taken a position at the bus stop at Lopaukamea, in the Si'i Kae Ola area, with all this paraphernalia in a sling bag by his side, shows what a determined attempt it was to supply illicit drugs.
2. I have no doubt that he had positioned himself so that customers could come and be sold methamphetamine, that at the same time he would be able to keep an eye out for police and so escape if anything arose his suspicions.
3. But, at about 5 pm that afternoon the police had been tipped off. Officer Fifita circled the Lopaukamea bus stop until he was quite certain that Mr. Halatokoua warranted stopping and searching.
4. At approximately 6.20 pm the police closed in and detained Mr. Halatokoua.
5. The Officers identified themselves and cautioned Mr. Halatokoua. The sling bag was spotted by his side, they asked about it, but he denied any knowledge of it.
6. As soon as the Officers searched that bag it became clear is contained utensils and suspected methamphetamine.
7. He was arrested and taken to the Police Station for questioning, where he exercised his right to silence.
8. Recovered by the Officers in the search and arrest were
   1. TOP $902
   2. Weighing scales with a number of empty ‘dealer packs’
   3. A single packet that contained a total of 20 ‘dealer packs’ of methamphetamine, weighing 1.86 grams.
   4. 4 packets methamphetamine, weighing 0.64 grams
   5. A single larger packet of methamphetamine, weighing 1.67 grams
9. Given the indictment states it was 2.77 grams of methamphetamine that he possessed in total, I assume those are the gross weights.
10. On 8 August 2024, Mr. Halatokoua appeared before the Supreme Court for his arraignment and entered guilty pleas to the count alleging of possession of 2.77 grams of methamphetamine and the count in respect of possession drug utensils.

Maximum sentences

• 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 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.

Previous convictions

11. Mr. Halatokoua was of previous good character.

Pre-sentence report

12. He is 26 years old, he was 25 when these offences were committed. He is single and lives both at Nualei and Vaini.
13. His father was confounded to hear about his son’s behaviour. He spoke of him as having always been dedicated to church and family activities and working with him helping with his income from selling fish.
14. Tevita Halatokoua’s education was sound as far as it went, but he dropped out of schooling a level 5.
15. He appears to have broken with negative peer group by leaving Nualei, to live with an uncle in Vaini.
16. The Pre-sentence report does not assess his likelihood of harm or of re-offending. From the report and facts of the offence, both must be at least medium risk, given that he went to set himself up dealing in illicit drugs, found a supply, was making money from it and plainly was prepared to do so in a brazen way.
17. That he has pleaded guilty and apparently made steps to break with negative influences are factors I have also taken into account.
18. The Pre-sentence report recommends some of his sentence be suspended on conditions including courses to help him rehabilitate.

Crown’s submissions

19. Crown have reviewed authorities from Zhang v R [2019] NZCA TOCA 17 to R v Haisila CR 22 / 2022 a starting point of 2 years and 6 months for possession 2.43 grams methamphetamine, R v Mahine & Wight CR 93-94/2022 a staring point of 6 months’ imprisonment for possession utensils.
20. They then submit a starting point of 36 months (count 2 being concurrent to count 1) with an 8 month reduction for his timely guilty plea, he last 10 months suspended in keeping with the Mo’unga principles.

Discussion

21. The Crown in their submissions have not just slavishly followed a mathematical extrapolation, but considered the case in the round, predominantly the age and lack of previous convictions and his guilty plea.
22. This Court has also gone on to consider
    

Rex v Siua Palanite Hufanga (Unreported, Supreme Court, CR 211/2020, 28 May 2021, Whitten LCJ)

(a) The Accused pleaded guilty to one count of possession of 2.13grams of methamphetamine and one count of possession of 8.16grams of cannabis. The offending occurred in March 2020.
(b) The meth charge was taken as the head count. A starting point of 2 ½ years imprisonment was imposed.

(c) A starting point of 4 months imprisonment was imposed for the cannabis charge.
(d) 30% deduction from the starting points by way of mitigation for the Accused’s guilty plea and because this was his first drug offence.
(e) A resulting sentence of 21 months for the methamphetamine charge, and 3 months for the cannabis charge to be served concurrently with the meth charge.
(f) In paragraph [21], Whitten LCJ stated “The opportunity and support offered by a period of supervision, support and education after the Defendant's release from prison is likely to assist in his rehabilitation should he choose that course for his life. To assist him with that choice, I will also order a significant suspension period”
(g) The final 9 months of the head sentence, are to be suspended for 2 years on conditions.

Rex v Kelikupa Maile (Unreported, Supreme Court, CR 302/2020, 13 May 2021, Whitten LCJ)

(a) The Accused pleaded guilty to one count of 0.5 grams of methamphetamine (count 1), 2.5 grams of methamphetamine (count 2) and a total of 51.53 grams of cannabis (count 3). The offending occurred on 3 May 2019.
(b) Count 2 was taken as the head sentence. A starting point of 3 years imprisonment was initially set. The Court added on 6 months to the 3 years starting point as aggravation on the basis that the Accused committed the offence whilst on bail.
(c) For the Accused’s guilty plea and the Crown’s failure to provide an accurate criminal record of the Accused, the Court took this offending as the Accused’s first drug offending, and the starting point was reduced by 12 months imprisonment resulting in a sentence of 30 months imprisonment.
(d) For Count 1, the Accused is sentenced to 9 months imprisonment. For Count 3, the Accused is sentenced to 18 months imprisonment. Both sentences are to be served concurrently with Count 2.
(e) The final 12 months of the 30 months imprisonment is suspended for 2 years on conditions.

Rex v Viliami Paletu’a (Unreported, Supreme Court, CR 27/21, 23 April 2021, Whitten LCJ)

(a) The Accused pleaded guilty to possession of 3.16 grams of methamphetamine. The offending occurred on 29 September 2020.
(b) A starting point of 3 years and 3 months was set by the Court.
(c) By way of mitigation, 13 months was deducted from the starting point, resulting in a sentence of 26 months imprisonment.
(d) The final 12 months of the 26 months imprisonment is suspended for 2 years on conditions.

23. I conclude a starting point of 3 years’ imprisonment for count 1 is appropriate.
24. For his early guilty plea, the steps he has taken to avoid those who may lead him into criminal ways and his previous good character a reduction of 30 %; one year.
25. Count 2 a 6 month starting point reduced to 4, to run concurrent with count 1.

Suspension

26. It is right to suspend a portion of his sentence. His age, lack of previous convictions and timely guilty plea all underline this and making this a case where the Mo’unga principles of rehabilitation clearly are made out.
27. Accordingly, the last 6 months will be suspended for 18 months on the following conditions
    1. he reports to probation within 48 hours of his release
    2. is placed on probation
    3. does not commit any offences punishable by imprisonment
    4. completes a drug rehabilitation course
28. All drugs and paraphernalia are to be forfeited and destroyed.
29. All monies are forfeited.

Conclusion

30. 2 years’ imprisonment, the last 6 months suspended for 18 months on conditions.
    

SUPREME COURT	18 SEPTEMBER 2024
NUKU’ALOFA	COOPER J