R v Sakopo [2025] TOSC 87; CR 84 & 85 of 2025 (8 August 2025)

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

CR 84 & 85 of 2025

REX

-V-

[1] ‘ISITOLO SAKOPO
[2] KALAFITONI TOLUTA’U

SENTENCE AND SENTENCING REMARKS

BEFORE:
HON. JUSTICE GARLICK KC

Appearances:
Mrs. T Vainikolo for the Prosecution
First Defendant in Person
Second Defendant Accompanied by Prisons Officer.

Date of Hearing:
8 August 2025

The charges

1. Upon their arraignment on 11 June 2025, both defendants pleaded guilty to the following charges:
   1. Count 1: Possession of 1.91 grammes of methamphetamine, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
   2. Count 2: Possession of 9.03 grammes of cannabis, contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.
   100. Count 3: Possession of a utensil, contrary to section 5A of the Illicit Drugs Control Act.
        

The offending

2. On or about 17 February 2025, the police received reliable information that the defendants were using motor vehicle R1319 (‘the car”) and were selling illicit drugs at Pahu. The defendant Kalafitoni was driving the car, and the defendant ‘Isitolo was seated in the front passenger seat. Police attempted to stop the car, which did not stop and crashed into the police vehicle. The police had to smash the car window to turn the car’s engine off. The defendants were detained and searched. The defendant Isitolo was found to have cannabis, methamphetamine and empty packets in his pocket. He admitted straight away that the drugs were his. There were further illicit drugs on the floor of the car. The defendants were arrested and taken to Central Police Station, where the car was searched more thoroughly. On the floor of the car, police found: 1 packet of green leaves; 1 smoking pipe; 6 packets of methamphetamine; $198 cash and further methamphetamine in a plastic receptacle. The defendant Isitolo admitted that all the drugs belonged to him. Precise details of the drugs that were found and seized are set out in the table at paragraph 14 of the summary of facts prepared by the prosecution.
3. Both defendants pleaded guilty to the offences on a “full facts basis”. That is to say that they do not challenge the prosecution’s summary of the facts.
4. On 20 February 2025, both defendants were interviewed and exercised their right to remain silent. Accordingly, neither defendant assisted the police in the investigation.

The submissions of the Crown regarding the sentences

5. The Crown submits that the following aggravating and mitigating features of the offending exist.

Aggravating features

• Both defendants have previous convictions for drug offences. Full details of the prior convictions of the defendants are set out in paragraph II.3 and II.4 of the prosecution’s submissions.
• Drugs are a serious social and criminal problem in the Kingdom of Tonga. The continuing seriousness of the use of methamphetamine in the Kingdom has been expressly recognised by the courts in such cases as Ali [2020] TOSC 94, and by the Court of Appeal in the case of the Attorney General v Fua’eiki [2021] TOSC 20.
• The defendant Kalafitoni did not cooperate with the police.
• Neither defendant is a young offender.

Mitigating features

• The defendant Isitolo admitted that the drugs belonged to him.
• Both defendants pleaded guilty to the offences at the earliest opportunity.
  

Comparable sentences

6. The Crown referred to the following cases for comparable sentences. Whilst I have considered these cases carefully, no sentences are truly comparable and the Court must determine the appropriate sentences based on the facts of the case that it is dealing with and the circumstances of the defendants. The cases referred to by the prosecution are as follows:
   1. Cases relating to possession of methamphetamine where the quantity involved is less than 2 grammes:

R v Kalafitoni Toluta’u [2022] TOSC 69 (CR 32 and 33 of 2022)

R v Siu Holani [2022] TOSC (CR 87 of 2022)

2. Cases relating to possession of cannabis where the quantity is less than 28 grammes:

R v Angilau [2021] TOSC 18

100. Cases relating to unlawful possession of utensils:

R v Tupou [2024] TOSC 29

R v Emeline Haisila [2022] TOSC 40

7. The Crown submits that custodial sentences must be appropriate for these offences, though those sentences should be concurrent with each other. I agree with this submission.

The pre-sentence reports

8. I have read with care the pre-sentence reports on both defendants, and I have taken into account the various personal circumstances of the defendants.

Submissions made by the defendants

9. The defendants did not seek to make submissions to me.

Starting points

10. As previously stated, the continuing seriousness of the use of methamphetamine in the Kingdom has been expressly recognised by the courts in such cases as Ali [2020] TOSC 94, and by the Court of Appeal in the case of the Attorney General v Fua’eiki [2021] TOSC 20. Moreover, section 4(2)(b) of the Illicit Drugs Control Act deems possession of more than 0.25 grammes of a class A drug to be supplying that drug. The total quantity of methamphetamine in this case is 1.91 grammes. Accordingly, in my judgment, the minimum starting point for these offences is a follows:
    1. Count 1 – possession of methamphetamine, 36 months’ imprisonment.
    2. Count 2 – possession of cannabis, 9 months’ imprisonment.
    100. Count 3 – possession of utensils, 9 months’ imprisonment.

Discount for early pleas of guilty

11. For the defendants’ early guilty pleas, I reduce the starting points on the sentences to the following:
    1. Count 1 - 24 months’ imprisonment (a reduction of 12 months).
    2. Count 2 - 6 months’ imprisonment (a reduction of 3 months).
    100. Count 3 - 6 months’ imprisonment (a reduction of 3 months).
         
12. All the above sentences will run concurrently with each other. However, in the case of the first defendant, Isitolo Sakopo, the sentences will run consecutively to the sentence of 8 months’ imprisonment that was imposed upon him in cases CR 453, 459 and 460 of 2024 on 25 June 2025.

The question of suspension of part of the sentences

13. The Crown submits that applying the guidelines and principles established in the case of Mo’unga v R [1998] LR 154, no part of the sentences should be suspended. In my judgment, whilst both defendants have previous convictions for drug offences, it cannot be said that there is no prospect of rehabilitation of the defendants during the long period of detention that they will serve. Accordingly, in each of their cases, I order that the final 4 months of imprisonment will be suspended for a period of 12 months on condition that during the said period of suspension, the defendants are:
    1. not to commit any further offences punishable with imprisonment;
    2. to be placed on probation for the operational period of the suspension;
    3. to report to the probation office within 48 hours from their release from prison, and thereafter as directed by their probation officers;
    4. complete a drugs awareness course as directed by their probation officers.

Resulting sentences upon the defendants

14. The sentences imposed upon each of the defendants are as follows:
    1. Count 1 (possession of methamphetamine), a sentence of 24 months’ imprisonment.
    2. Count 2 (possession of cannabis), a sentence of 6 months’ imprisonment.
    100. Count 3 (possession of utensils), a sentence of 6 months’ imprisonment. All of the sentences will run concurrently with each other, making a total period of 24 months’ imprisonment.
    4. Any time spent in custody on remand by either defendant will count towards the sentence imposed upon him.
    5. The final 4 months of the total sentence of 24 months’ imprisonment will be suspended for a period of 12 months, upon the conditions set out above.
       
15. I make the following ancillary order. Under section 32(2)(b) and section 33 of the Illicit Drugs Control Act, the illicit drugs which are the subject of these proceedings are to be destroyed, and all sums of cash and other items seized, including the motor car used to facilitate the offences (R1319), are forfeited to the Crown.
    

This is the sentence of the Court

NUKU’ALOFA

HON. JUSTICE GARLICK KC
JUDGE

8 August 2025