R v Langa'oi [2024] TOSC 67; CR-VAV 5 of 2024 (20 September 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
VAVA’U REGISTRY

CR-VAV 5 of 2024

REX

-v-

SAMIU LANGA’OI

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mrs ‘E. Lui and Mr ‘A. Fisi’iahi for Prosecution
Ms L. Fonua for the Defendant
Date: 20 September, 2024.

The charges

1. On 10 September 2024, the Defendant pleaded guilty to one count (Count 1) of destruction of evidence, contrary to section 37A(1) of the Illicit Drugs Control Act, and one count (Count 2) of unlawful possession of utensil, contrary to section 5A of the said Act.

The Offending

2. The Defendant is Samiu Langa’oi, aged 42, of Leimatu’a, Vava’u.
3. On or about 24 February 2024, at approximately 8:44 am, the Police were alerted about the Defendant using illicit drugs at his home at Leimatu’a.
4. The Police took the lead and went to the Defendant’s home. The Defendant was absent when the Police arrived but his wife, Toakase, was there with their three daughters.
5. Allegedly, the Defendant upon seeing the Police ran to pull out a cannabis plant from a bucket outside his house. As he ran he crushed the plant with his hands.
6. The Police cautioned the Defendant’s wife, Toakase, they would search the house for illicit drugs. While the search was conducted, the Defendant returned.
7. The search uncovered a smoking can in the Defendant’s bedroom (“Exhibit 1”).
8. The Defendant then voluntarily led the Police to where he crushed the cannabis plant. No residue of the plant could be found. The bucket in which the cannabis plant was grown was found inside an old cement tank (“Exhibit 2”).
9. After the search was completed, the Defendant was arrested for destruction of evidence.
10. The exhibits were seized and kept in police custody.
11. The Defendant cooperated with the Police and admitted to the offending during his police interview.

Previous Convictions

12. The Defendant has previous convictions.

Crowns Submissions

13. The Crown considered the aggravating factors for the Defendant to be:
    1. A repeated drug offender;
    2. The seriousness of the offending; and
    100. His admission to cultivating the cannabis plant for his personal use.
14. The Crown submitted the mitigating features to be the Defendant’s:
    1. Early guilty plea at the first available opportunity; and his
    2. Cooperation with the Police.
15. The Crown referred to the following comparable sentences:

For destruction of evidence and attempting to destroy evidence -

1. R v Pole’o (CR 57 of 2021) [TOSC 182]; Unreported (LCJ Whitten, KC, 7 October 2021) – the Defendant pleaded guilty to destruction of evidence (smashing a test tube) and possession of utensils; and not guilty to possession of methamphetamines. After a three-day trial, the Defendant was found guilty of possession of 0.13 grams of methamphetamine. The Defendant was a first-time offender. A starting point of 2 years imprisonment was imposed 8 months deducted for her early guilty plea and lack of previous convictions, leaving a balance of 16 months imprisonment. The overall sentence was fully suspended (still quite young, lack of any previous and early guilty plea to two counts) on conditions – 60 hours community service.
2. Rex v Rajh Kumar (CR 101/2022) – the Defendant was convicted after a contested trial, for attempting to knowingly destroy evidence when he stepped on a small plastic pack containing white residue and dragged it with his feet. A starting point of 2 years imprisonment was set. For his previous good record and lack of relevant offending, 6 months was deducted. He was sentenced to 18 months imprisonment, fully suspended on conditions.

100. Rex v Kae Tau’aika (CR 4/2021) – the Defendant was found guilty after trial for destruction of evidence (breaking a test tube) and unlawful possession of utensils (dealer packs, weighing scale and test tubes). A starting point of 18 months imprisonment was set for the destruction of evidence 12 months for the utensils. There were no mitigating factors. He was sentenced to 18 months imprisonment for the destruction of evidence, and 12 months for the utensils, concurrently. The sentence was fully suspended for 2 years on conditions.

4. Rex v Folauhola Kamoto (CR 94/2023) – the Defendant was charged with attempting to destroy 14 packs of methamphetamine when she tried to flush it down the toilet, and possession of 0.51 grams of methamphetamine. She was sentenced to 17 months imprisonment for the destruction charge, and 8 months for the possession, to be served concurrently.
5. R v Rodney Toki (AC19/2022) – I did not find this case helpful in this case.

16. The Crown’s sentencing formulation were that Count 1 should be the head sentence with a starting point between 18 to 24 months imprisonment. For his early guilty plea, a deduction of 8 months, resulting in a final sentence of 10 to 16 months imprisonment partially suspended on the conditions that he is not to commit any offence punishable by imprisonment and to complete a life course with the Salvation Army or as directed by the Probation Officer on drug rehabilitation.
17. For Count 2, the Crown suggested a starting point of 4 to 6 months imprisonment. For his early guilty plea, a deduction of 2 months, resulting in a final sentence of 2 to 4 months imprisonment partially suspended, to be served concurrently to Count 1.
18. The Crown’s final suggested sentences were:
    1. Count 1 – 16 months imprisonment with the final 8 months suspended for 12 months on conditions.
    2. Count 2 – 4 months imprisonment to be served concurrently to Count 1; and
    100. Pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs and utensils, the subject of these proceedings be destroyed.

Defendant’s submissions

19. Ms. Fonua submitted that a starting point of 18 months’ imprisonment for Count 1 and 4 months imprisonment for Count 2 was appropriate. For the Defendant’s early guilty plea, the starting point should be reduced by 30% and an additional 4 months ought to be deducted for other mitigating factors.
20. She argued that the Defendant is a well-respected member of his community and has notable contributions via the Kuka Club and Sila Ki Vai Club. He is also said to be a respected member of the Leimatu’a Free Wesleyan Church of Tonga.
21. I have read the letters from his wife, the President of the Kuka Club, the town officer of Leimatu’a and Minister of the Free Wesleyan Church of Leimatu’a.
22. His wife says they have 5 children ranging from the age of 17 to 3 years old. The 3 year old is adopted by a relative. The family live off the Defendant’s crops and her weaving. She explained that she has had several surgeries and is asthmatic. She acknowledged that her husband has previous convictions but that since they met he has lived a crime free life until now. She agrees with the referees that her husband is a good standing and reliable member of the community.
23. The rest of the referees all speak well of the Defendant and say he is helpful and is of good character. He supports the community clubs that help the families and club members. He plays his part in the community.

Considerations

24. The maximum statutory penalty for destruction of evidence contrary to section 37 A of the Illicit Drugs Control Act is imprisonment not exceeding 15 years. The maximum statutory penalty for possession of utensils contrary to section 5A of the said Act is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.
25. The Court of Appeal in Vea [2004] TOCA 7 adopted the New Zealand Court of Appeal’s categories of cannabis drug offending discussed in Terewi [1999] 3 NZ 62, namely:
    1. for growing cannabis in small quantities for personal use - up to 2 years’ imprisonment;
    2. small scale commercial cultivation - up to 4 years’ imprisonment; and
    100. large scale cultivation for commercial purposes - over 4 years imprisonment.
26. I agree with the Crown that the head count is Count 1.
27. Having regard to, (i) the seriousness of the offending in Count 1, falling in the first Terewi category of growing cannabis in small quantities for personal use, i.e., one plant, (ii) the comparable sentences and (iii) principles of denunciation and deterrence, I set a starting point of 18 months imprisonment for the head count.
28. For Count 2, I set a starting point of 4 months imprisonment.
29. For his early guilty plea, I reduce the starting points by 6 months for Count 1 and 1 month for Count 2, resulting in a final sentence of 12 months’ imprisonment for Count 1 and 3 months imprisonment for Count 2, to be served concurrently to the head sentence.
30. The Defendant is not young and is not a first time offender. The offending here was clearly premeditated. While two of the Defendant’s previous convictions occurred 20 years ago, he was convicted in 2021 for possession of illicit drugs where he was sentenced to 3 months imprisonment. That sentence was fully suspended.
31. Contrary to the highly favourable character references, the Defendant’s conduct in this instant does not reflect an ideal role model to the community, youth or the children he is said to support. He ought to have thought about them before involving himself in the activities that has brought him before the Court today. Further, he has clearly not taken the opportunities this Court has offered him in the past to fully rehabilitate himself.
32. However, I do acknowledge his co-operation with the authorities and pleading guilty at the earliest opportunity. They reflect steps towards taking responsibility for his actions. The Crown has agreed that the Defendant is entitled to a partial suspension and in acceding to that position, I am willing to suspend the final 6 months of the head sentence for a period of 12 months on conditions in the hope that this time, he will take the opportunity for rehabilitation seriously.

Result

33. The Defendant is convicted on:

Count 1 – and is sentenced to 12 months imprisonment;

Count 2 – and is sentenced to 3 months imprisonment, to be served concurrent to the head count.

34. The final 8 months of the head sentence of 12 months is to be suspended, from the date of the Defendant's release, for a period of 12 months, on the following conditions, namely, that during that period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release; and
    4. complete an alcohol and drugs awareness course as directed by his probation officer.
35. Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
36. Pursuant to section 32(2)(b) of the Illicit Drugs Control Act, the utensils, the subject of these proceedings are to be destroyed.
    

P. Tupou KC
Judge of the Supreme Court

NEIAFU: 20 September, 2024