R v 'Anitoni [2026] TOSC 2; CR 141 of 2025 (30 January 2026)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 141 of 2025

REX
-v-
‘ALIFELETI ‘ANITONI

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
To: Miss M. Lenati for Prosecution
Mrs S. Fa’otusia for the Defendant
Date: 30 January, 2026

The proceedings

1. On 8 October, 2025, the Defendant pleaded guilty to:

Count 1 - possession of arms without a licence, being one .12-gauge shotgun (serial number 77C147) and possession of 1 x .22-rifle (serial number 7CA388638R;

Count 2 – possession of ammunition without a licence, being 3 x .12-gauge ammunition,

Count 3 - possession of illicit drugs, being 117.55 grams of cannabis, contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act;

Count 4 – possession of utensils which was withdrawn by the Crown on even date.

The Offending

2. On the evening of 14 May, 2025 around 7:30pm, Police received reliable information that the Defendant was supplying cannabis from his home at Ha’akame.
3. The Police Operation Team was briefed and was dispatched to the Defendant’s residence at Ha’akame where they found a family dining under a mango tree.
4. They informed the family that they were Police Officers and of their intentions to conduct a search without warrant under s. 24 of the Illicit Drugs Control Act. The family were read their rights.
5. The Police conducted a search of the persons present and all were cleared. The police turned to the house on the property. The Defendant confirmed that he and one Sina ‘Anitoni resided in that house.
6. Inside the house, the Police found:
   1. A black bag with 1 large pack containing 300 empty packs scattered inside. The Defendant claimed he found them on the roadside and was used by the kids to pack earrings;
   2. 1 x black .22-rifle with the word “ROSSI” (7CA388638R) etched on the handle;
   100. 9 x .22 ammunition inside a magazine inside a bin by the rifle. The Defendant admitted the gun was his and it was not licensed;
   4. 1 x .22-rifle (07441908) with a wooden handle which the Defendant said was his but the hammer was damaged and he bought a new rifle;

e) 2 x red .12 ammunition inside a black camera pouch:

6. 4 x blank ammunition inside an empty peanut butter container;
7. 5 x .22 ammunition in a brown container held insider a black school bag at the back of the house;
8. 20 x .22 ammunition inside a small red rectangular plastic box by the entrance to the house;
9. 1 x .22 ammunition inside a wooden box outside of the house.

7. The Police read the Defendant his rights and was asked who the guns and ammunition belong to. The Defendant accepted ownership of the wooden rifle, all of the .22 ammunition and claimed the .12 ammunition were given to him by others to use.
8. The Defendant was arrested for possession of a firearm and ammunition without a licence.
9. The second house on the property was searched and cleared. The search of the third house uncovered inside the living room:
   1. 1 x rusty blue .12 ammunition; and
   2. 1 x .12 rifle with a wooden handle
10. The Defendant was informed that those items will be confiscated and taken back to the Armoury.
11. The fourth house was searched and cleared. A search of the surrounding area of that house revealed a white bucket containing a plant suspected to be a cannabis plant.
12. The Defendant was again, read his rights and was asked who the plant belonged to. He admitted it was his. The Defendant said it was for his personal use to help him with his work.
13. The Defendant was also arrested for possession of utensils. An amount of $50 cash found on the Defendant and was seized. The search was concluded at 10:30pm that night and the Defendant accompanied the police to the Central Police Station.
14. On 15 May, 2025 the cannabis plant found was tested and weighed at the Forensic Lab. The plant was 1.57 meters and weighed 117.55 grams.
15. The 2 x.22 rifles; 1 x .12 shotgun and ammunition were examined and found to be real firearms and ammunition in good condition for use with the exception of 2 of the .12 gauge ammunition.
16. It was confirmed that the Defendant did indeed hold a licence for the .22 rifle (serial no. 07441908) but held no licence for the remainder of the firearms and ammunition.

Crown’s submissions

17. The Crown suggested the aggravating features of the offending were:
    1. the significant amount of cannabis found exceeds typical personal use threshold;
    2. unlicensed possession of multiple firearms and ammunition;
    100. the Defendant initially lied to the Police regarding the .22 rifle’s licence, only admitting the lack of a valid licence (as he purchased it off another person), after Police scrutiny of serial numbers; and
    4. the Defendant is not young.

18. The Crown suggested the mitigating features as;

1. the Defendant’s early guilty plea;
2. the Defendant is a first time offender; and

100. the Defendant cooperated with the Police.

19. The Crown referred to the following comparable sentences:

Possession of Illicit Drugs

1. Vea v R [2004] TOCA 7- the amounts of drugs in this case was distinctly higher but relevantly, the court referred to the 3 levels of offending involving possession or cultivation of cannabis identified in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 as:
   1. small quantities for personal use, for which non-custodial sentences are generally appropriate;
   2. small scale commercial purposes, for which a starting point of between two and four years may be appropriate; and
   3. large scale growing for commercial purposes, for which a sentence in excess of four years is appropriate.

It was further considered in Terewi that personal circumstances of the Defendant were generally irrelevant when sentencing drug offences.

In Vea, the Court of Appeal referred to its decision in Tuita v R [1999] Tonga LR 152 where at 156 the court stated:

"In our view, a conviction for growing any significant amount of marijuana should carry a sentence within the range of three to five years’ imprisonment. That sentence would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation, along the lines of the judgment of this Court in R v Misinale (CA 13/99, 23 July 1999). Further we consider that similar sentences should be imposed on persons convicted of possession for supply of amounts of marijuana that indicate a commercial scale operation."

The quantity of cannabis involved in this case was considered as denoting a small scale, commercial operation. On that basis and taking into account that Vea was a first offender, the Court of Appeal considered the appropriate starting point should have been no more than four years. For his assistance to police and efforts to rehabilitate himself, the Court reduced the starting point to 2 years and 9 months. All sentences were to be served concurrently, resulting in 2 years and 9 months imprisonment term. Vea was then ordered to serve 1 year and 3 months of that term in prison and the balance to be suspended for 2 years from release.

2. Rex v Huni [2018] TOSC 33 - This matter involved 6 accused individuals charged for cultivation of cannabis plantation containing a large amount of cannabis 3,894 plants, weighing 1,698.92 grams. The ringleader had also placed an unlicensed firearm at the tax allotment for the purpose of guarding the cannabis.

In determining the starting point, the court adhered to the approach in Terewi as adopted in Vea v R [2004] where it was stated that sentencing drug offences was categorized as:

(a) growing of small quantities for personal use warranted short prison terms up to 2 years’ imprisonment;

(b) small-scale commercial cultivation had a starting point of 2 to 4 years imprisonment; and

(c) large scale cultivation for commercial purposes warranted a starting point in excess of 4 years' imprisonment. These categories applied to cannabis convictions indicating a commercial scale operation.

100. R v Fa'aoso [2020| TOSC 90 - the Defendant pleaded guilty to possession of 165.37 grams of cannabis. A starting point of 2 years imprisonment was imposed, which was reduced by 8 months for the accused's early guilty plea and lack of previous relevant convictions. The final 8 months of the 16 months imprisonment was suspended for 12 months on conditions.

4. R v Fetu'u'aho [2021] TOSC 83 – the Defendant pleaded guilty to possession of 183.33 grams of cannabis. A starting point of 33 months was imposed and reduced by 30% for the Defendant’s early guilty plea and clean record, that is, 11 months, resulting in a final sentence of 22 months. The final 11 months was suspended for 2 years on conditions.

Possession of Arms and Ammunition without a licence

5. R v Fa'uhiva [2025] TOSC 31 – the Defendant pleaded guilty to 1 count each for possession of arms - 1x.22 rifle and 4 x .22 caliber ammunition without a license. A starting point of 24 months imprisonment for possession of the .22 rifle was imposed and reduced by 8 months for his cooperation with Police, lack of previous similar convictions and his early guilty plea. For possession of 4x.22 caliber ammunition, a starting point of 18 months imprisonment, which was reduced by 6 months and ordered to be served concurrent to count 1. The final sentence of 16 months was suspended in full for 3 years on conditions.
6. R v Afeimoúnga – the Defendant pleaded guilty to possession of 1 x .22 rifle (count 1) and 6 x .22 ammunitions (count 2) without a license. A starting point of 18 months imprisonment was imposed for Count 1, and 12-months imprisonment for Count 2 to be served concurrently to Count 1. For his early guilty plea and cooperation with the police, each starting point was reduced by 6 months resulting in final sentences of 12 months and 6 months imprisonment.
7. R v Vakapuna [2018] TOSC 81 - the Defendant was charged for possession of illicit drugs (Count 1), possession of arms (22 guns) without licence (Count 2), and possession of ammunitions without a licence (Count 3). For Counts 1 a sentence of 1 year and 9 months was imposed. For Count 2, 6 months imprisonment; and Count 3, 6 months imprisonment. Counts 2 and 3 were to be served concurrently to the sentence in Count 1. The court opined the Defendant held good prospects for rehabilitation and suspended the sentence in full on conditions.
8. Rex v Huni [2018] TOSC 33- the Defendant was found guilty of possession of 1 x .22 rifle (Count 1), 6 x .22 ammunition without a licence (Count 2), and cultivating 698.92 grams of cannabis (Count 3). For Count 1 a starting point of 2.5 years imprisonment to be served concurrent to the Defendant’s sentence of 5 years and 5 months for cultivating illegal drugs.

20. Here, the Crown proposed the most serious of the charges is Count 3 of the instant case, warranting the following starting points:

Count 1 – 30 months imprisonment;

Count 2 – 24 months imprisonment; and

Count 3 – 30 months imprisonment.

21. In light of the Defendant’s early guilty plea, lack of previous convictions, remorse and cooperation with Police, Crown proposed the following deductions:
    

Count 1 - 10 months;

Count 2 - 8 months; and

Count 3 - 10 months.

22. This results in final sentences of 20 months imprisonment for Count 1, 16 months imprisonment for Count 2 and 20 months imprisonment for Count 3.
23. Count 1 and 2 sentences are to be served concurrently to Count 3 with the final 10 months to be suspended for a period of 2 years on the following conditions:

a) The Defendant must not commit any offence punishable by imprisonment during the period of suspension;

b) The Defendant is to be placed on Probation during the period of suspension;

c) The Defendant must complete a drug awareness course; and

d) The Defendant is to report to the Probation Office within 48 hours from release.
Defendant’s submission

24. The Defendant submits that he has no previous convictions and is 60 years of age, and having pleaded guilty to all 3 charges would result in imprisonment sentences. However, it would be appropriate for the sentences to be served concurrently and for the total sentence to be suspended on conditions.
25. In respect of the aggravating factors raised by Crown, the Defendant submits the following:
    1. The significant amount of cannabis (117.55g) found exceeds typical personal use threshold – 1) to be considered taking into account the fact that the total weight includes the branches of the cannabis plant. 2) given that the plant was pulled from the ground on the night of 14 May 2025 and weighed in the early hours of 15 May 2025 around 0156hrs, the branches were not dry then.
    2. Unlicensed possession of multiple firearms (.12 gauge and .22 rifles) and ammunition – 1) when the police found the .12 gauge rifle, they knew it was broken. 2) in the Armourer’s report for Exhibit 17(a)(i), the gun was examined and found to be not in good condition to use and not capable of firing a projectile due to broken trigger mechanism. 3) Definition of “arms” Arms and Ammunition Act:

“arm means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, or which can be adapted for the discharge of any such shot, bullet or other missile, and any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing dangerous to persons; and includes any component part of any such weapon, and any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon, but does not include articles designed or adapted solely to discharge spears for spearing fish;”

The Defendant pleaded guilty to count 1 because the .12 gauge shotgun was included together with the .22 rifle that the Defendant has no licence for. 4) for Count 2, the Armourer’s report shows that he found 2 of the ammunitions not in good condition.

100. the Defendant initially lied to the Police regarding the .22 rifle’s licence, only admitting the lack of a valid licence (as he purchased it off another person), after Police scrutiny of serial numbers – Defendant submits that there is no allegation in the Summary of Facts that the Defendant lied to the Police.

26. The Defendant does not dispute the mitigating features set out by Crown, and further submits paragraphs 26 to 30 of the Pre-Sentencing Report to be mitigating factors.
27. The Defendant further submits the following facts:
    1. The information received by the police is hearsay evidence by Police Officer Hefa;
    2. The Defendant’s residence is at a tax allotment fronting on to the road going from Ha’akame to Liahona and the closest residence is about 1 tax allotment away, belonging to a police officer;
    100. It was about 8pm that the Police arrived to the Defendant’s residence and there were the Defendant and 10 others having their evening meal;
    4. The Defendant wasn’t aware of the cannabis plant but he had to tell the police that it was his in order for the members of his family not to be arrested;
    5. After the search, the Defendant was arrested and remanded in custody for about 3 weeks; and
    6. The Defendant cooperated with the Police, pleaded guilty in the first opportunity and first time offender.
28. The Defendant also submits supporting letters from Ha’akame Town Officer, Tevita Tahitu’a, and Bishop Peni Fanguna.
29. Having submitted sentencing comparable, the Defendant submits that a suspended sentence would benefit by taking advantage of the opportunity to attend counselling in relation to illicit drugs.

Pre-sentencing report

30. The Defendant is a 60 year old Tongan citizen currently residing in Ha’akame and 4 of their 8 children. The Accused has no known health issues. He is an active member of the Church of Jesus Christ of Latter-day Saints and participates in regular church activities. He is also an active member of the community contributing to the Halatoamui Scholarship Club and has been involved in community patrols since 2014.
31. As for the offending, the Accused accepted the summary of facts and said the old firearm was obtained legally and he held a licence for it while the new firearm was just purchased and he had yet to obtain a licence for it.
32. The Accused has a clean record and was considered at low risk of re-offending.

Considerations

33. When this case came up for sentencing on 12 December, 2025, I invited the Crown to file a reply to the Defendant’s sentencing submissions filed on 3 December, 2025.
34. In court this morning, Mr. Samani appearing for the Crown informed the court that a response was filed on 13 January, 2026. That document had not been placed before me. It turns out that the Corwn had filed an amended indictment, submissions in reply and further authority in support of its position.
35. Defendant’s counsel offered up her copy and I took the opportunity to peruse the documents prior to delivering this sentence.
36. The maximum statutory penalty for Counts 1 and 2 is 5 years imprisonment and for Count 3 is a fine of $50,000 or 7 years imprisonment or both. Clearly, Count 3 is the head count. Further, despite the Defendant’s claim that the cannabis plant was for his personal consumption, pursuant to s.4 (2) (b) of the Illicit Drug Control Act, any amount of Class B drub weighing 7 grams or more is deemed to be supplying the class B drug.
37. Against the proposed starting point for the head count, it is argued for the Defence that the weight of the Class B drug should exclusively be limited to the weight of the leaves; that it should be understood that the plant was fresh and therefore it would weigh more and that the Crown has not specified the threshold beyond personal use.
38. I agree with the Crown’s submissions in reply in this respect that the legislation makes no distinction between fresh and dried material and Parliament’s chosen metric is weight rather than stage of growth or component parts^[1] and the threshold is provided by law as mentioned in paragraph 32 above. I am also entitled to consider the presence of the 300 empty packs found at the property to be an aggravating factor in support of the notion of supply deemed by law.
39. Furthermore, the Defendant’s attempt to reverse his admission that the cannabis plant was his on the day of the search to now shift the blame to another member of his family is inconsistent with his guilty plea and what he told the police on the day in question.
40. In terms of the arguments on the firearms and ammunition that were not good for use, the Crown accepted those arguments and have amended the indictment leaving only 1 x .22 rifle (serial number 7CA388638R) and 1 x .12 gauge ammunition for the charge under Counts 1 and 2. The Crown helpfully provided the armourer’s report which confirmed the same.
41. I have taken into account the amended indictment, the Crowns submissions in reply and authorities provided and are reflected in a reduced starting point from that proposed by the Crown.
42. Having regard to the maximum statutory penalty, the aggravating factors, the submissions from the parties, the principles and sentences provided by the comparable cases relied on by the Crown, the principles of punishment, deterrence and to reflect the public interest in denouncing the supply and use of drugs as a scourge in the society and the often related and dangerous association with possession of firearms and ammunition, I set the following starting points:

Count 1 – 24 months imprisonment

Count 2 – 18 months imprisonment

Count 3 – 24 months imprisonment

43. For the Defendants early guilty plea and clean record I reduce the starting points by 30 %, resulting in the following final sentences:

Count 3 – 17 months imprisonment

Count 1 – 17 months imprisonment

Count 2 – 13 months imprisonment

44. Counts 1 and 2 shall be served concurrent to Count 3.
45. I have considered the submissions from both sides on the question of suspension. The Crown proposes a partly suspended sentence while the Defence supports a fully suspended sentence.
46. I have considered the guidelines in Moúnga^[2] and although the Defendant is not young, in 60 years he has lived a crime free life, which is laudable. However, the Crown submitted that the Defendant’s maturity in age should also mean a clear understanding of the consequences of his actions and for someone in his position, who is held in high regard in his community is expected to exhibit lawful conduct. I agree with the Crown in the knowledge that there is a public concern about the dangers of illicit drugs and its close affiliations with illegal firearms and the risks they pose to the society and its future. People of good standing such as the Defendant must not be seen to get away lightly if they decide to get involved.
47. The probation report provides a positive assessment of the Defendant’s character. His life is said to be “centred on farming, family and faith-based service, reflects a pattern of responsible conduct.” I have read the letters from the Haákame Ward Bishop and the Haákame Town Officer. In view of those matters I believe the prospects the Defendant will utilise any suspended period of his sentence to rehabilitate himself is highly likely and I intend to suspend part of the Defendant’s sentence.
48. The Defendant is to understand that I do so against the consideration in Terewi that personal circumstances of the Defendant are generally irrelevant when sentencing drug offences and the Court of Appeal decision in Tuita (supra) where that Court opined that sentences for growing significant amount of cannabis “would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation.
49. In balancing the seriousness of the offending, the Defendant’s reported good character and high prospects of rehabilitation, I consider it appropriate to suspend the final 9 months of his sentence on conditions.

Result

50. ‘Alifeleti ‘Anitioni is convicted and sentenced to:

Count 1 – 17 months imprisonment;

Count 2 – 13 months imprisonment; and
Count 3 – 17 months imprisonment.

51. The sentences for Counts 1 and 2 shall be served concurrent to Count 3.

52. The final 9 months of the final sentence is suspended for a period of

12 months, on condition that during the period of suspension, the Defendant is to:
(a) not commit any offence punishable by imprisonment;
(b) be placed on probation;
(c) report to the probation office within 48 hours of his

release from prison; and
(d) complete an alcohol and drugs awareness course with
the Salvation Army.
53. 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.

54. Subject to compliance with the said conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 8 months in prison.

55. Pursuant to:
(a) s. 32(2) (b) of the Illicit Drugs Control Act, the illicit

drugs the subject of these proceedings is to be

destroyed; and
(b) s. 33 of the said Act, the drug-related paraphernalia

seized in these proceedings is to be forfeited to the

Crown.

(c) s. 37 of the Arms and Ammunition Act the firearm and ammunition is to be forfeited to the Crown.

P. Tupou KC

Nuku’alofa: 30 January, 2026 JUDGE

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^[1]R v Wolfgramm [2020] TOSC 78
^[2] Moúnga v R [1998] Tonga LR 154