R v Selu [2026] TOSC 18; CR 157 of 2025 (4 February 2026)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 157 of 2025

BETWEEN:

REX

- Prosecution

AND:

VAINIKOLO SELU

- Defendant

SENTENCE

BEFORE:
HON. LORD CHIEF JUSTICE BISHOP KC
Appearances:
Mr L. Vaea for the Prosecution
The Defendant in person
Date:
4 February, 2026

A. THE CHARGES

1. On 19 November 2025, the Defendant pleaded guilty to the following charges:
   1. Count 1: supply of an illicit drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act;
   2. Counts 2: possession of an illicit drug, contrary to section 4 (1)(a)(iii) of the said Act;
   100. Counts 3 and 5: possession of an illicit drug, contrary to section 4(1)(a)(i) of the said Act;
   4. Counts 4 and 6: possession of utensils, contrary to section 5A of the same Act; and
   5. Count 7: possession of ammunition without a license, contrary to section 4(1) and 2(b) of the Arms and Ammunition Act.

B. THE OFFENDING

2. On 1 July 2025, Police received reliable information that you were driving around selling illicit drugs. Officers from the Drugs Enforcement Unit located you in the back seat of a vehicle in the Halaleva area. When the vehicle was stopped, you exited carrying a black Nike bag and walked towards your residence.
3. When Sergeant Fifita identified himself and instructed you to stop, you fled and discarded the bag during the pursuit. You were later apprehended and detained. A search revealed a smoking pipe and TOP$1,240 in cash on your person.
4. A further bag contained numerous small packs with white substances, empty packs, SIM cards, and other items consistent with drug supply.
5. Police searched your residence pursuant to section 24 of the Illicit Drugs Control Act and located extensive quantities of utensils, packaging materials, cannabis, methamphetamine, and three .22 caliber bullets for which you held no license.
6. Scientific analysis confirmed the presence of methamphetamine and cannabis in the exhibits seized. The total amount of methamphetamine seized was 1.73 grams, the cannabis was 18.72 grams, a further 1 weighing scale, 1 straw, 120 empty packs and 4 smoking pipes where found.
7. Throughout the investigation, you exercised your right to remain silent.
   
   100. PREVIOUS CONVICTIONS
8. The Defendant has previous convictions on similar offences, including housebreaking, theft, assault and domestic violence. He committed the present offending whilst serving a suspended sentence for possession of illicit drugs and utensils.
   
   4. CROWN’S SUBMISSIONS
9. The Crown considered the aggravating factors for the Defendant to be:
   1. The prevalence of illicit drugs remains a serious concern for Tonga;
   2. His non-cooperation with the Police;
   100. His history of drug-related convictions and at the time of his arrest, he was serving a suspended sentence; and
   4. The inherent risk to others around him being in possession of drugs and ammunitions.
      
10. The Crown submitted the mitigating features to be the Defendant’s:
    1. Early guilty plea at the first given opportunity.
       
11. The Crown referred to the following comparable sentences:
    1. Rex v Penisoni Angilau [2025] CR 197 of 2024
       2. Zhang v R [2019] NZCA 507 – the New Zealand Court of Appeal sets out possession of less than 5 grams of methamphetamine falls within Band 1 warranting community service of up to 4 years.
       100. Rex v Ofa Tongia [2024] CR 169 of 2025
       4. Rex v Nasif Ali [2020] CR 196 of 2020
       5. Rex v Pita Talanoa [2024] CR 5 of 2024.
       6. Rex v Afimeimo’unga [2024] CR 186 of 2023
          
12. Based on the offending and the sentencing comparable, the Crown submits a custodial sentence is appropriate in line with R v Maile [2019] TOCA 17 where the Court of Appeal reiterated Cato J in R v Ngaue [2018] TOSC 3 at [5]:

“This judgment will serve as a warning to those who engage in Tonga with the drug methamphetamine, whether it be for possession only of small amounts or larger amounts, trafficking or supplying it to others, manufacturing, importing, exporting or dealing, in any way, with this extremely dangerous and addictive drug that the courts will sentence offenders to severe punishment. Even for possession of small amounts, offenders can expect to be sentenced to terms of imprisonment.”

13. In determining the appropriate starting point, the Zhang guidelines should apply, in that, the offending falls within Band 1. The Crown’s sentencing formulations were that Count 1 should be the head sentence with a starting point of 18 – 24 months imprisonment to reflect the aggravating features and the amount of methamphetamine. For the Defendant’s early guilty plea, a deduction of 6 months is warranted.
    
14. The starting points for the remaining Counts are as follows:
    1. Count 2 – a starting point of 12 to18 months imprisonment, reduced by 4 months;
    2. Count 3 – a starting point of 9 to 12 months imprisonment, reduced by 3 months;
    100. Count 4 – a starting point of 6 to 9 months imprisonment, reduced by 2 months;
    4. Count 5 – a starting point of 3 to 6 months imprisonment, reduced by 1 month;
    5. Count 6 – a starting point of 9 to 12 months imprisonment, reduced by 3 months; and
    6. Count 7 – a starting point of 9 to 12 months imprisonment, reduced by 3 months.
       
15. In considering suspension, the Crown referred to the principles in Mo’unga v R [1998] LR 154 at 158, and submits that a minimal portion of the Defendant’s sentence should be suspended.
    
16. The Crown’s final suggested sentences were:
    1. Count 1 – 12 to 18 months imprisonment;
    2. Count 2 – 8 to 14 months imprisonment;
    100. Count 3 – 6 to 9 months imprisonment;
    4. Count 4 – 4 to 7 months imprisonment;
    5. Count 5 – 2 to 5 months imprisonment;
    6. Count 6 – 6 to 9 months imprisonment;
    7. Count 7 – 6 to 9 months imprisonment.
       
17. Counts 2 to 7 be served concurrently to Count 1. The suspended sentence of 6 months imprisonment in CR 489 – 490, 493/2023 to be rescinded and added to the final sentence of the present offending. This leaves a final sentence of 24 months imprisonment, with the final 3 months suspended for 2 years on conditions
    
    5. MITIGATION SUBMISSIONS AND PRE-SENTENCE REPORT
18. There were no submissions filed on your behalf. However, I have considered the Pre-Sentence Report filed by the Probation Office.
19. The Probation Officer believes that you are at a moderate risk of re-offending due to your history of substance abuse and prior offending.
    
    6. DISCUSSION
20. This offending is serious and entrenched. Methamphetamine continues to cause widespread harm within Tonga, and this Court reiterates that those involved in its supply can expect stern custodial sentences. Your offending was not opportunistic. It involved preparation, packaging, and distribution, together with the possession of ammunition, which significantly aggravates the overall criminality.
21. You are not a first-time offender. You have previous convictions for serious offences and you committed the present offending while subject to a suspended sentence for similar conduct. That history significantly undermines your rehabilitative prospects and limits the extent to which this Court can extend leniency.
    
22. While I acknowledge your early guilty plea and personal circumstances, including your family responsibilities, these factors cannot outweigh the need for denunciation, deterrence, and the protection of the community. In line with the authorities cited, a custodial sentence is inevitable.
    
    7. STARTING POINT
23. In determining the appropriate starting point, I take into consideration the seriousness of the offending, having regard to the maximum penalties, the nature and quantity of the drugs involved, the presence of aggravating features, and the guidance provided by comparable authorities cited by the Prosecution.
24. The offence of supplying methamphetamine is inherently serious. Although the quantities involved fall within the lower band of the Zhang guidelines, the presence of packaging materials, scales, significant cash, and the manner in which the drugs were carried strongly indicate commercial dealing rather than personal use. Having regard to the statutory maximum and the comparable authorities, I adopt a starting point of 24 months’ imprisonment for Count 1 as the head sentence.
25. For Count 2, I set a starting point of 15 months imprisonment. For Counts 3 and 5, I set a starting point of 9 months imprisonment, respectively.
26. For Counts 4 and 6, the possession of utensils was extensive, involving a large number of test tubes, empty packs, scales, and smoking pipes. These items clearly facilitated the supply and use of illicit drugs. I impose starting points of 6 months’ imprisonment, respectively.
27. For Count 7, the unlawful possession of ammunition presents a serious risk to public safety. The Defendant had no lawful authority to possess the ammunition and has a relevant criminal history. Consistent with Afimeimo’unga, I impose a starting point of 12 months’ imprisonment.
    
    8. MITIGATION
28. I apply mitigation in accordance with the guidelines set out in Mo’unga. You pleaded guilty at the first opportunity, warranting a meaningful reduction. However, the weight of mitigation is significantly reduced by the your extensive prior convictions, the fact that the present offending was committed while subject to a suspended sentence shows your complete disregard of the law and your consistent refusal to cooperate with Police during the investigation.
29. Allowing credit primarily for your early guilty plea, I apply the following deductions:
    1. Count 1 – 6 months, resulting in a final sentence of 18 months’ imprisonment;
    2. Count 2 – 4 months, resulting in a final sentence of 11 months’ imprisonment;
    100. Counts 3 and 5 – 3 months each, resulting in a final sentence of 6 months’ imprisonment for each count;
    4. Counts 4 and 6 – 2 months each, resulting in a final sentence of 4 months’ imprisonment for each count; and
    5. Count 7 – 3 months, resulting in a final sentence of 9 months’ imprisonment
    1. FINAL RESULT
30. For the above reasons, I sentence the Defendant as follows:
    1. Count 1: 18 months’ imprisonment;
    2. Counts 2 to 7: as set out above, to be served concurrently with Count 1.
31. The suspended sentence of 6 months’ imprisonment imposed in CR 489–490 and 493 of 2023 is activated. That term is to be served consecutively upon the sentence imposed in this matter.
32. The resulting total effective sentence is 24 months’ imprisonment. The final 3 months is suspended for a period of two years on the following conditions:
    1. Not commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the Probation Office within 24 hours of his release;
    4. Complete courses in drug and alcohol awareness as directed by the Probation Officer; and
    5. Live where directed by the Probation Officer
33. The sentence is to be backdated to 1 July 2025 for time in remand.
34. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
35. Pursuant to section 33 of the Illicit Drugs Control Act, the cash seized is to forfeited to the Crown and the drugs and utensils are to be destroyed in accordance with section 33 (3)(b) of the said Act.
    
    10. ADMINISTRATIVE ORDERS
36. Pursuant to section 37 of the Arms and Ammunition Act, I administratively order the seized three .22 calibre bullets to be forfeited to the Tonga Police for training purposes.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
4 FEBRUARY 2026