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R v Fukofuka [2025] TOSC 54; CR 215 of 2024 (23 June 2025)

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


CR 215 - 217 of 2024


BETWEEN:
REX
-Prosecution


AND:
[1] IRVIN FUKOFUKA
[2] MAVIS FUSIMALOHI
[3] MATENI NEIUFI
-Accused


SENTENCE


BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC


Appearances: Mrs T Vainikolo & M Lenati for the Crown Prosecution
Mr A Fusimalohi for I Fukofuka & M Fusimalohi
Mrs S Fa’otusia for M Neiufi
Date: 23 June 2025


  1. THE CHARGES

Mateni Neiufi

  1. Count 1: Possession of Illicit Drugs (20.92g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
  2. Count 2: Unlawful Possession of Utensils (1 weighing scale, a straw, 26 empty packs) contrary to section 5A of the Illicit Drugs Control Act.

Mavis Fusimalohi

  1. Count 3: Possession of Illicit Drugs (13.52g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
  2. Count 4: Unlawful Possession of Utensils (1 weighing scale, 1 empty pack, 1 smoking pipe) contrary to section 5A of the Illicit Drugs Control Act.
  3. Count 5: Possession of Illicit Drugs (0.19g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
  4. Count 6: Unlawful Possession of Utensils (1 smoking pipe) contrary to section 5A of the Illicit Drugs Control Act.

Irvin Fukofuka

  1. Count 3: Possession of Illicit Drugs (20.92g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
  2. Count 4: Unlawful Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act.
    1. BACKGROUND
  3. On 17 January 2025, all three Defendants were arraigned on their respective charges. Mateni and Irvin pleaded not guilty, whereas Mavis pleaded guilty to the charges.
  4. Trial was set to commence for Mateni and Irvin on 30 April 2025. On the trial date, Mateni changed his plea and the trial then only proceeded for Irvin on 1 May 2025.
  5. The Court after a trial found Irvin guilty of the charges against him on 2 May 2025, I now proceed to sentencing for all 3 Defendants.
    1. CROWN SENTENCING SUBMISSIONS
  6. The Crown filed submissions to assist the Court on 13 June 2025.
  7. Aggravating and mitigating features were submitted in relation to each Defendant alongside the following caselaw in support:
    1. R v Afu [2021] TOSC 61 (4 May 2021)
    2. R v Fotu [2021] TOSC 5 (27 January 2021)
    1. R v Vaiangina CR 189 of 2023 (3 August 2021)
    1. R v Veamatahau CR 38 of 2022 (18 January 2023)
    2. R v Isiah Takau CR 11 of 2024 (14 August 2024)
    3. R v Satini CR 62 of 2024 (13 December 2024)
    4. Rex v Mangisi CR 10 of 2018 with reference to Zhang v R [2019] NZCA 507
  8. The Crown conclude their submissions by recommending the following sentences for each Defendant.

Mateni Neiufi

  1. Count 1: 4years imprisonment with the last 6 months suspended on conditions
  2. Count 2: 5 months imprisonment concurrent to Count 1

Mavis Fusimalohi

  1. Count 3: 3 years imprisonment with the final 18 months suspended on conditions
  2. Count 4: 5 months imprisonment concurrent to Count 3
  3. Count 5: 9 months imprisonment concurrent to Count 3
  4. Count 6: 3 months imprisonment concurrent to Count 3
  5. In total, a sentence of 3 years imprisonment with the final 18 months suspended for 2 years on conditions.

Irvin Fukofuka

  1. Count 3: 5 years and 4 months imprisonment with no suspension.
    1. PRESENTENCE REPORT & MITIGATION PLEA
  2. A presentence report was ordered for all 3 Defendants. The Probation Office filed reports for both Irvin and Mavis on 12 June 2025. For Mateni, the Court received his report on 12 June 2025.
  3. The reports filed detailed each respective Defendant’s upbringing, personal history and factors in relation to the offendings in these proceedings, for Sione & Salesi.
  4. On 18 June 2025, learned Counsel on behalf of Mateni, filed sentencing submissions for the Court to consider. Similarly, learned Counsel on behalf of Irvin and Mavis filed submissions on 18 June 2025.

Mateni Neiufi

  1. You are the second of five siblings, you are currently married, and you have 2 children. You have no known health issues and although you did not do well in high school, you are the sole breadwinner of your family, and you were able to earn income in working a plantation.
  2. You and your wife currently operate a barber shop and a rental business and according to a letter from the town officer, you are well respected in your village.
  3. It is recommended from the Probation Officer for the Court to consider a condition of completing an alcohol and drug awareness course with the Salvation Army to assist with your rehabilitation
  4. On the submissions from your learned Counsel, I was told about your aggravating and mitigating features together with submissions on the appropriate sentence.
  5. A recommended partial suspended sentence is submitted by Counsel on conditions the Court deems fit as well as to complete community service hours.

Mavis Fusimalohi

  1. You are the third out of seven siblings, and you grew up in a stable home where you were raised in the Catholic faith. You have a de-facto partner who is a co-Defendant in these same proceedings, Irvin Fukofuka.
  2. You are a housewife and currently live with Irvin in Fo’ui and you visit your grandmother occasionally and assist her in her home.
  3. I am told and I accept that you are remorseful and regretful for the offending and that you would now like to focus on getting a job and turning your life around. You have also completed a course which the Salvation Army, which is to your credit.
  4. A partly suspended sentence is recommended on conditions from the Probation Officer.
  5. In the submissions from your Counsel, a fully suspended sentence is recommended, a $5,000 fine and other conditions.

Irvin Fukofuka

  1. You moved and grew up in America from when you 3 or 4 years old. You have two children who are currently in America with their mother, and you were deported back here to Tonga in 2018 because you assaulted someone.
  2. According to your father, you grew up in stable home and he was surprised with your involvement with illicit drugs. In terms of employment you work for a company your father owns, and you are well supported financially by your family.
  3. Again, I am told that in this instance you are remorseful for the offending and for getting involved with the wrong people and that you now realise the need to change your life around.
  4. You are assessed by the Probation Officer as being at “high-risk” to the community and that it would be beneficial for you to be under the supervision of the Probation Office.
  5. In your case, the Probation Officer recommends partly suspended sentence on conditions.
  6. Additionally, learned Counsel on your behalf recommends a final sentence 2 years imprisonment fully suspended on a restrictive list of conditions.
    1. DISCUSSION
  7. Acting on information received, a police raid occurred outside a restaurant in Houma, where they discovered 2 motor cars. Irvin and Mavis were within one motor car and Mateni in or just outside the other.
  8. Together with the drugs particularized in the Indictment and the paraphernalia associated with drugs taking, on the driver’s seat of the motor car in which you Irvin was in, no less than $3,340 was found.
  9. Methamphetamine is a serious scourge in the Kingdom, it destroys lives it disrupt communities, and the courts must do all they can to stamp it out.
  10. The first duty of the Court is to deter, punish and rehabilitate. Considering the current increase of illicit drugs in the community, deterrence and with-it punishment is of greater priority than rehabilitation.
  11. It seems to me that all three of you were in possession of drugs with the intention of supplying to others and I now deal with each of you separately having regard to each of your circumstances.

Mateni Neiufi

  1. In your case Mateni being in possession of 20.92g of methamphetamine in Count 1, you have no previous convictions for drugs although you are no stranger to the courts and you Mateni did plead guilty but at a late stage.
  2. I accept the prosecutions submission that I should sentence you on band 2 of the guidelines for Class A provided in Zang which gives a range of 2 to 9 years imprisonment.
  3. Your role was that of a low-level drug supplier and in your case, I impose a starting point in Count 1 of 5 years imprisonment. In view of your guilty plea a reduction of 12 months is merited leaving a remainder of 4 years imprisonment.
  4. Count 2 is ancillary to Count 1 and a concurrent sentence of 5 months imprisonment is merited.
  5. I having regard to the submissions made by learned counsel on your behalf and accepting degree of remorse, which is claimed, I suspend the last 12 months for a period of 2 years on conditions.

Mavis Fusimalohi

  1. You Mavis are a first-time offender, and you pleaded guilty at the earliest opportunity to being in possession of 13.52 grams of methamphetamine (Count 3), 0.19grams methamphetamine (Count 5) and possession of utensils (Count 4 & 6).
  2. In your case, for Count 3, I take a starting point of 3 years imprisonment from which I deduct 12 months by way of your mitigating circumstances.
  3. On the ancillary in Count 4, 5 and 6 I sentence you to concurrent terms of 6 months that is to say concurrent with each other and with the sentence already announced in Count 3.
  4. I have considered very carefully whether or not to suspend part or all of your sentence having regard to the guidelines of Mounga although what you did was very serious having regard to your previous good character, I take the view that the prospects of rehabilitation in your case are good and therefore it is appropriate to suspend the final 2 years of your sentence for a period of 2 years on conditions.

Irvin Fukofuka

  1. In your case Irvin you have been convicted of a drugs offence in 2020 and also of being unlawful possession of utensils on the 29 of February 2024 for which you were given a suspended sentence of 4 months suspended for two years and on the 29 November 2024 ordered to serve a sentence of 6 months imprisonment which I take it as now occurred.
  2. The current offences were committed during the operational period of the suspended sentence which was imposed on the 29 February 2024.
  3. In your case, Irvin, the starting point in your case is 4 years imprisonment I can make no account of mitigation although I do bear in mind all the positive things I have read about you.
  4. I treat you as a low-level supplier I am satisfied that the drugs you had together with the money shows that you were in possession of those drugs with intent to supply to others.
  5. For Count 4, I impose a sentence of 6 months imprisonment concurrent to Count 3 and I order the suspended sentence in CR 165/2023 be activated in full.
    1. FINAL RESULT

Mateni Neiufi

  1. For Count 1 of Possession of Illicit Drugs contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act, I impose a sentence of 4 years imprisonment with the last 12 months suspended on the following conditions:
    1. You must not commit any further offence punishable by imprisonment
    2. You must be placed under probation
    1. You must report to the Probation Office within 48 hours of your release from custody.
    1. You must complete a course on alcohol and drug awareness if this is not undertaken whilst you are in prison.
  2. For Count 2 of Unlawful Possession of Utensils, I impose a sentence of 5 months imprisonment to be concurrent to Count 1.

Mavis Fusimalohi

  1. For Count 3 of Possession of Illicit Drugs contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act, I impose a sentence of 2 years imprisonment with the last 12 months suspended on the following conditions:
    1. You must not commit any further offence punishable by imprisonment
    2. You must be placed under probation
    1. You must report to the Probation Office within 48 hours of your release from custody.
    1. You must complete a course on alcohol and drug awareness if this is not undertaken whilst you are in prison.
  2. For Counts 4, 5 and 6 on the Indictment, I impose a term of 6 months imprisonment each, to be concurrent to each other and to the sentence in Count 3.

Irvin Fukofuka

  1. For Count 3 of Possession of Illicit Drugs contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act, I impose a sentence of 4 years imprisonment.
  2. For Count 4 of Unlawful Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act, I impose a sentence of 6 months imprisonment concurrent to Count 3.
  3. I further activate your suspended sentence in CR 165/2023 which is a period of 4 months to be served consecutive to Count 3.
  4. For the avoidance of doubt, you will serve a total of 4 years and 4 months imprisonment.
  5. Lastly, I order the drugs together with the utensils in these proceedings are destroyed pursuant to pursuant to section 32(2)(b) of the Illicit Drugs Control Act, and the funds found on the Defendants being TOP$3,340, TOP$190, TOP$1,815 & USD$100 is forfeited to the Crown pursuant to section 33 of the same Act.
NUKU’ALOFA
HON. MALCOLM BISHOP KC
23 June 2025
LORD CHIEF JUSTICE

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