IN THE COURT OF APPEAL OF TONGA 
NUKU’ALOFA REGISTRY 

AC 5 of 2023 
[CR 148 of 2021] 

BETWEEN			
REX										Appellant

AND				
KAPENI TAMO’UA 							Respondent

___________________________________________________________________________

JUDGMENT OF THE COURT
___________________________________________________________________________

Court:			Harrison J
Heath J
			Dalton J

Counsel:		‘Aunofo Fifita-‘Aholelei for Appellant
			Kapeni Tamo’ua, in person, Respondent

Hearing:		25 and 27 September 2023

Judgment:		5 October 2023

The appeal
[1]	Mr Kapeni Tamo’ua stood trial in the Supreme Court on one charge of possessing 	3kgs of cocaine and one of destroying evidence.  The jury found him guilty on both 	charges.  On 30 March 2023, Cooper J sentenced Mr Tamo’ua to a term of 	imprisonment of three years, fully suspended for three years, together with 50 hours 	community service.
[2]	The Crown sought leave to appeal against sentence on the grounds that it was 	manifestly inadequate.  Leave to appeal was granted by the Lord Chief Justice on 27 	April 2023, who also stayed execution of the sentence pending determination of the 	appeal.
[3]	The Crown contends that the sentencing Judge erred because:
(a)	The period of imprisonment that he reached as an end sentence was too short; and
(b)	The sentence of imprisonment ought not to have been suspended fully; and
(c)	No discrete sentence was imposed on the charge of destroying evidence.
Crown sentence appeals
[4]	On a Crown appeal, a sentence will only be increased to “that level which is 	considered the lowest appropriate for the class of offending” involved.
[5]	Particular difficulties arise when a successful appeal would result in an increase in 	sentence, from non-custodial to one of imprisonment.  In such a case, courts will be 	mindful of the risk of putting a defendant in double jeopardy of imprisonment.  	Generally speaking, an appellate court will only increase a non-custodial sentence to 	one of imprisonment if there were no other means of marking the offending 	adequately.  That approach has been taken by the Court of Appeal in Tonga, in R v 	Naidu.  
[6]	In some jurisdictions, of which Tonga is one, a Crown appeal against sentence will 	first require leave from the appellate court.  In other jurisdictions, the question of 	leave and the merits of the appeal will be dealt with together.  Whether the question of 	leave is determined prior to the merits of the appeal or at a substantive hearing, the 	same principles apply.  If leave is addressed before the substantive appeal the question 	is whether the sentence imposed is likely to be disturbed by increasing it from a non-	custodial to a custodial sentence.  
[7]	Although reasons were not given for the decision to grant leave to appeal, we consider 	the issue raised in this case was sufficiently important for the Lord Chief Justice to 	have given leave.  Given the policy underlying the recent increase in maximum 	penalties for Class A controlled drugs, a sentence for possessing 3kgs of cocaine 	which does not involve any time in prison is one that ought properly to be reviewed.  
Context
[8]	On or about 23 July 2021, a raft containing 36 bricks of cocaine washed up on a beach 	at ‘Otulea.  The cocaine was found by Mr Nomani Naeata, who distributed it among 	people living in Vava’u.  Following Police inquiries, a number of people were charged 	with complicity in the offending, most with possessing cocaine.  One of those people 	was Mr Tamo’ua.  
[9]	Mr Tamo’ua pleaded not guilty to charges of possessing cocaine and destroying 	evidence and was tried together with two other co-offenders, Mr Makisi ‘Ahovelo and 	Fe’ofa‘aki Havea.  After guilty verdicts had been returned, they were sentenced on 30 	March 2023 along with others (some of far greater culpability) who had either pleaded 	guilty or been found guilty following trial for offences relating to the cocaine found in 	Vava’u.  One of the other offenders before the Court for sentence was Mr Tamo’ua’s 	son-in-law, Mr Leonati Motuliki.  
[10]	Mr Tamo’ua did not give evidence at his trial.  As he was found guilty by a jury on 	both charges, there is no record of the reasons why the jury returned those verdicts.  	Nor was there any fulsome explanation of the factual foundation for sentencing in the 	Judge’s sentencing remarks (the Sentencing Remarks).  After inquiry from the Bench 	at the commencement of the appeal, we were provided with further information to 	assist us in determining the underlying facts.  In particular, we received from counsel 	for the Crown:
(a)	A copy of the transcript of evidence given by Mr Leonati Motuliki.  He had agreed to give Crown evidence after entering guilty pleas at his trial, at the conclusion of the prosecution case.  Mr Motuliki gave evidence of his interactions with Mr Tamo’ua.  
(b)	An extract from Cooper J’s summing up to the jury in which he deals with the Crown case against Mr Tamo’ua.  
(c)	Copies of two written statements given by Mr Tamo’ua to the Police on 1 and 5 August 2021, and Mr Tamo’ua’s responses to a written statement of charges on 16 August 2021.  We have been told that all three documents were produced by the Crown, and formed part of the evidence available to the jury.  While all three are written in the Tongan language, counsel for the Crown accepted the accuracy of a translation that was made available to us.
[11]	On balance, we consider that the safest approach is to rely on Mr Tamo’ua’s second 	and third statements to the Police, in both of which he acknowledged that he had lied 	in the first.  We do so because there are some inconsistencies between the evidence of 	Mr Motuliki and the statements of Mr Tamo’ua.  Given Mr Motuliki’s greater 	involvement in the criminal enterprise, there is room for doubt as to the reliability of 	his evidence when it conflicts with Mr Tamo’ua’s own statements.  
Sentencing in the Supreme Court
[12]	On 30 March 2021, Cooper J had the difficult task of sentencing eight offenders, with 	markedly different levels of culpability.  In dealing with this appeal, we acknowledge 	our ability to focus our attention on an offender of lesser culpability.  That has enabled 	us to consider the sentence imposed on Mr Tamo’ua in an undistracted way.  Our 	comments on the Judge’s reasons for imposing that sentence should be read in that 	context.
[13]	Before undertaking the sentencing exercise, Cooper J set out his general approach.  	In particular, the Judge:
(a)	Adopted the approach taken by Lord Chief Justice Whitten in sentencing two co-offenders, Mr Ian and Mrs Brenda Cox.
(b)	Identified the maximum penalty available for the charge of possession of cocaine as one of a fine not exceeding $1 million or life imprisonment, or both.  
(c)	Observed that because cocaine was a Class A controlled drug, the guidance provided by the Court of Appeal of New Zealand in Zhang v R was to be used as a port of first call.  He set out the sentencing bands adopted in that case.  Band 5, relating to possession of more than 2kgs of methamphetamine has a presumptive starting point of between 10 years and life imprisonment.  
(d)	Indicated that an adjustment should be made in the starting point to reflect the fact that cocaine “is slightly less harmful than methamphetamine”.  For that reason, sentencing for like quantities of cocaine should not exceed the starting points for methamphetamine offending.  At the time of sentencing, cocaine use in Tonga was said to be (like the position in New Zealand) “comparatively rare”.  Usually, a credit of about 5% would be given to reflect the difference sentencing approaches for methamphetamine and cocaine.
(e)	Emphasised that quantity is but one factor, in considering what Zhang band to apply, or where the offending sits within a band.  Each case must be judged by reference to the role played by the offender.
(f)	To supplement the use of the Zhang guidelines, made reference to the UK Sentencing Council guidance (the UK Guidelines) in “Drug Offences: Definitive Guideline”, reproduced on the Sentencing Council’s website.  Those Guidelines divide roles into “leading”, “significant” and “lesser”.
[14]	Cooper J reached his end sentence of three years imprisonment on the following 	basis:
(a)	First, he took a starting point of 15 years imprisonment based on the UK Guidelines. 
(b)	Second, he adjusted that starting point to one of seven and a half years to reflect Mr Tamo’ua’s culpability “at the bottom of lesser role category”.  This too was based on the UK Guidelines.
(c)	Third, he applied the following credits which were deducted from the adjusted starting point of seven and a half years imprisonment:
(i)	One year was deducted “to truly reflect how [Mr Tamo’ua] was at the bottom of the lesser role category”.
(ii)	Two years were deducted “to reflect the very short time that Mr Tamo’ua had possession of the drugs and his destruction of them “to be rid of association with criminal activity”.
(iii)	18 months was deducted to reflect “not just that [Mr Tamo’ua] was of hitherto good character but the positive good character” he had.
[15]	The Judge declined to impose a separate penalty on the charge of destroying evidence.  	In doing so, he referred to reasons that he had given earlier in his sentencing remarks 	when sentencing Mr ‘Ahovelo.  Cooper J found that Mr ‘Ahovelo’s “association 	with [the] drugs before ‘destroying’ them was short lived”, adding that he inferred Mr 	‘Ahovelo to have destroyed the drugs “to disassociate himself from criminality”.  	Those reasons mirrored the reasons why Mr Tamo’ua was given credit for destroying 	the drugs: “to be rid of association with criminal activity”.
[16]	In sentencing Mr ‘Ahovelo, Cooper J referred also to Mr Tamo’ua’s position.  He said 	that the drugs had been destroyed because neither Mr ‘Ahovelo nor Mr Tamo’ua 	wanted “to have any more connection with an illegal activity”.  Cooper J found that 	“trying to bring an end to illegal activity is not the same as trying to frustrate criminal 	proceedings”.  
The Crown submissions
[17]	In short, the Crown submits that the starting point was too low and excessive credit 	was given for mitigating factors.  While the Crown does not take issue with the 	starting point of 15 years imprisonment adopted by the sentencing Judge, it does 	contend that the Judge erred in reducing that starting point to seven and a half years 	imprisonment on account of Mr Tamo’ua’s lesser culpability.  
[18]	In particular, the Crown points to an element of triple-counting in the Judge’s 	methodology.  Not only did he reduce the starting point of 15 years imprisonment by 	one half to reflect Mr Tamo’ua’s level of culpability, but he subsequently gave a 	further credit of one year “to truly reflect how [Mr Tamo’ua] was at the bottom of the 	lesser role category”, and one of two years “to reflect the very short time that [he] had 	possession of the drugs and his destruction of them” to distance himself from criminal 	activity.  In addition, the Crown contends that too much credit was given for prior 	good character.  
[19]	The Crown’s final position was that a starting point of nine years imprisonment 	should have been fixed before personal mitigating factors were taken into account.  	The only personal factor was the prior good character.
[20]	The Crown also contends that the Judge erred in fully suspending the end sentence of 	three years imprisonment.  Reliance is placed on the decision of this Court in 	Mo’unga v R, to which we shall return.  
[21]	Mr Tamo’ua appeared on his own behalf, by audio-visual link from the Courthouse in 	Vava’u.  It became clear to us that he is not proficient in the English language.  As a 	result, Mr Tamo’ua was unable to assist us in any meaningful way.  We did not call 	upon him to make submissions.  To compensate, the Crown’s argument was tested 	rigorously by questions from the Bench.  Given the outcome of the appeal, no 	prejudice has been caused to Mr Tamo’ua.
Mr Tamo’ua’s culpability
[22]	As previously indicated, we have assessed Mr Tamo’ua’s culpability by reference to 	the statements that he gave to the Police on 5 and 16 August 2021.  We summarise our 	evaluation of the factual position as follows:
(a)	At Mr Motuliki’s request, Mr Tamo’ua drove his son-in-law on two occasions to the beach at ‘Otualea, where the drugs had come aground.  This occurred, we infer, at about 6pm on Wednesday 28 July 2021 and 6am on Thursday 29 July 2021.  On the second occasion, someone walking from the direction of the sea provided a bag to Mr Motuliki.  Once this bag came into his possession, Mr Motuliki had acquired a total of three bags, each containing 1kg of cocaine.  Mr Tamo’ua did not know, at this stage, that the bag contained that drug.  
(b)	Mr Motuliki was about to leave for Tongatapu.  Before he left, Mr Motuliki told Mr Tamo’ua that the bags contained illicit drugs.  He asked Mr Tamo’ua to bury them for him.  In his 16 August 2021 statement, Mr Tamo’ua acknowledged that Mr Motuliki told him that the illicit drug was cocaine at the time he was asked to bury the bags.
(c)	The three bags of cocaine were each in packets, which were taped.  Mr Tamo’ua placed the packages “on top of a bunch of firewood at [his] home”, while seeing Mr Motuliki off as he travelled by boat from Vava’u to Tongatapu.  Mr Tamo’ua decided to take the bags to the sea, rip them open and pour the contents into the ocean.  The cocaine dissolved in the sea.  It is not entirely clear, but we infer he did this later the same day.
(d)	Mr Tamo’ua acknowledged that he disposed of the drugs because he was afraid he would be caught with the cocaine, which would be assumed to belong to him.  When asked why he did not report these events to the Police, Mr Tamo’ua said that he “did not want to be involved with what [Mr Motuliki] was doing”.  
(e)	Mr Tamo’ua acknowledged that he had lied to the Police on previous occasions so that he would not be caught in possession of the substance.  The interview on 16 August 2021 concluded with Mr Tamo’ua being told that he was charged with destroying evidence and intentionally giving false information to the Police.
[23]	The Crown acknowledges that there was no reliable evidence to determine the amount 	of time that Mr Tamo’ua had the cocaine in his possession before he destroyed it.  In 	those circumstances, we must draw the inference most favourable to Mr Tamo’ua.  On 	the basis of Mr Tamo’ua’s statements of 5 and 16 August 2021, we consider it is most 	likely that he disposed of the drugs on Thursday 29 July 2021, soon after Mr Motuliki 	left to go to Tongatapu.
[24]	For sentencing purposes, we regard Mr Tamo’ua as someone who, while in 	“possession” of the cocaine in a strict legal sense, was not a willing participant in the 	criminal enterprise.  We find that he destroyed the cocaine both to protect his family 	(his daughter was married to Mr Motuliki), to disassociate himself from the criminal 	activity and to avoid the possibility that the Police might consider that the cocaine 	belonged to him.  That is the basis on which we consider the Crown’s sentence appeal.  	Although expressed differently in the Sentencing Remarks, our assessment is not 	materially dissimilar to the basis on which Cooper J sentenced Mr Tamo’ua.  
Analysis
[25]	We have concluded that the Judge did err in his sentencing methodology and in his 	decision to suspend fully the term of imprisonment that would otherwise have been 	imposed on Mr Tamo’ua.  In our view, those errors led the Judge to provide an 	inadequate sentencing response to the totality of Mr Tamo’ua’s offending.  It is 	necessary for us to re-sentence Mr Tamo’ua.  In undertaking our own analysis, we 	explain why we have decided that the Judge fell into error.
[26]	In any jurisdiction, determination of an appropriate sentence to reflect an offender’s 	culpability will be guided by the community’s views (as manifested in the legislation 	creating the offence and providing maximum penalties) about the seriousness of 	particular offending.  In Tonga, the maximum penalty for possession of a Class A 	controlled drug, such as cocaine, has been increased significantly in recent times.  In 	sentencing Mr and Mrs Cox, the Lord Chief Justice provided a pithy explanation for 	that increase:
53.	Since December 2020, the statutory maximum penalty in Tonga for possession of 1gm or more of a Class A drug is a fine of $1 million, life imprisonment or both.  The intended increase from the previous maximum period of imprisonment of 30 years was part of Parliament’s response to the growing scourge of such drugs in the Kingdom, most commonly methamphetamine.  Prior to the recent [cocaine cases from Vava’u] … drug offending involving cocaine has been relatively rare before the courts.
[27]	We consider that the Crown’s complaints about sentencing methodology are justified.  	So far as the final starting point is concerned, there is an issue over the extent of the 	assistance that may usefully be obtained from the UK Guidelines, given the adoption 	of the Zhang approach in Tonga.  For the reasons that follow, we consider that the 	Judge placed too much emphasis on the two-stage approach set out in the UK 	Guidelines.  That led, in our view, to an error in assessing the appropriate starting 	point.
[28]	Under the UK Guidelines, as applied by Cooper J, there is a two-stage approach to 	fixing a relevant starting point.  The first is to consider a starting point that responds 	to the quantity of the Class A drug possessed.  Cooper J’s starting point of 15 years 	imprisonment reflected that used in the United Kingdom for possession of 3kgs of 	cocaine.  The second step is to identify the level of criminality involved, and to reduce 	the starting point to take account of that.  That two-stage approach was unnecessary in 	the context of the present case.  
[29]	In Zhang, the Court of Appeal highlighted the need for a sentencing Judge to assess 	the seriousness of the conduct and criminality as part of a single exercise.  In 	summarising the New Zealand approach, Kós P and French J, delivering the judgment 	of the Court, said:
[10]	In this judgment we conclude: 
(a)	Sentencing must achieve justice in individual cases. That requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed in this and similar judgments.
…
(d)	In particular, we hold that the role played by the offender is an important consideration in the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending. 
(e) 	A more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role. Diminished role in methamphetamine dealing offending may result in an offender moving not only within a band – as currently happens or is supposed to happen under Fatu – but also between bands. 
(f) 	Although we do not adopt the two grid matrix (involving quantity bands and role categories) devised by the United Kingdom Sentencing Council, we record that, in assessing role, sentencing judges may find it helpful to have regard to the Council’s categorisations of role (into “leading”, “significant” and “lesser”). In considering the individual appeals before us, we make use of those categorisations.
	…
	(Emphasis added)
[30]	As Zhang makes clear, the New Zealand approach and the UK Guidelines are not 	incompatible; they are complementary in nature.  There is no doubt that the UK 	Guidelines are useful to assist identification of the nature of the role played by a 	particular offender.  
[31]	This is a most unusual case in which there are no truly appropriate comparator 	sentencing decisions.  That being so, we prefer to adopt a sentencing approach that 	reflects the totality of the offending.  We consider that a principled way of 	determining an end sentence is by reference to the maximum penalty available for the 	destruction of evidence offence.  This case demonstrates how varied criminal activity 	involving possession of Class A controlled drugs can be and the need to retain a 	flexible approach.  Save for our comments on methodology, the sentence we indicate 	ought to have been imposed should not be used indiscriminately in sentencing 	offenders in cases that are not truly analogous to this.  
[32]	On any view, Mr Tamo’ua’s culpability for possession of cocaine was, 	notwithstanding the quantity involved, at the lowest end of the scale.  He was an 	unwilling recipient of the package of drugs and did not intend to trade, supply or 	otherwise profit from them.  Mr Tamo’ua’s reasons for destroying the cocaine to 	distance its possession from himself and his family was understandable, though not 	excusable.  We consider that his culpability for possession is so low that the 	destruction charge ought to be regarded as the lead offence.  Mr Tamo’ua’s criminality 	stems from his decision to destroy the cocaine rather than from his possession of it.  
[33]	Section 37A(1) of the Illicit Drugs Control Act 2003 creates a maximum penalty of 15 	years imprisonment for knowing destruction of a substance capable of being used as 	evidence in relation to the commission of an offence under that Act.  The jury was 	satisfied beyond reasonable doubt that those elements had been proved by the Crown.  	That is consistent with the facts on which we are approaching sentencing.
[34]	The first step is to ascertain the starting point for sentence, having regard to 	aggravating and mitigating factors of (on a totality basis) the offences.  Given the 	maximum penalty of 15 years imprisonment and the purpose of the increase in the 	maximum penalty for possession of a Class A controlled drug, and the quantity of 	3kgs that was involved, a starting point of five years imprisonment would have 	adequately met Mr Tamo’ua’s culpability.  
[35]	The second step is to consider mitigating factors personal to the offender.  We 	consider that the sentencing Judge did not assess mitigating factors appropriately.  As 	we have indicated, there was an element of triple-counting in the reduction of the 	Judge’s chosen starting point to take account of the circumstances of the offending.  A 	credit for the lesser culpability was inherent in the adjusted starting point of seven and 	a half years imprisonment.  The additional credits of two years and 18 months 	reflected the same considerations.  Those were all mitigating factors of the offending 	and were taken into account in assessing the starting point.  No additional credit 	should be given for the lesser role than that inherent in the starting point of five years 	imprisonment which we have assessed as appropriate.  
[36]	While generous, the additional period of one year’s credit for prior good character was 	within range for that type of personal mitigating factor.  In our view, an end point of 	four years imprisonment would have been appropriate.  
[37]	The next question is whether any part of the sentence should be suspended.  We do not 	need to address specifically Cooper J’s decision to suspend the whole of the sentence 	in the context of one of three years imprisonment being imposed.  We assess this issue 	by reference to the leading authority on whether a sentence should be suspended and, 	if so, for how long.
[38]	The leading judgment on the question of suspended sentences is Mo’unga v R.  That 	case involved a “purely property offence” which the Court of Appeal acknowledged 	ought not generally to result in a sentence of imprisonment absent “unusual 	circumstances”.  In that case, however, the Court did consider the circumstances 	sufficient to impose a sentence of imprisonment.  It upheld the Supreme Court’s 	sentence of four years imprisonment. 
[39]	The Court then considered whether, and if so the extent to which, the sentence ought 	to be suspended.  It said:
Should the sentence be suspended?
The real issue on this appeal is whether the sentence should have been suspended in whole or in part. Section 24(3), giving the Court jurisdiction to suspend the whole or part of the sentence for any period up to three years, is silent on the criteria to be considered in deciding whether a sentence should be suspended. In New Zealand, where there also are no criteria in the relevant statutory provisions, the Court of Appeal, in R v Petersen (1994) 2 NZLR 533 (CA), in a judgment delivered by Eichelbaum CJ, said that the suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed.  Apart from that, the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:
(i)	Where the offender is young, has a previous good record, or has had a long period free of criminal activity.
(ii)	Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.
(iii)	Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.
(iv)	Where there has been cooperation with the authorities.
We see no reason why this approach should not be followed in Tonga. …
[40]	Mr Mo’unga had been convicted on one count of housebreaking and one of theft.  	Mr Tamo’ua was found guilty of both possession of cocaine and destroying evidence.  	To recapitulate, the maximum penalty for possessing a quantity of cocaine of 1gm or 	more is a fine not exceeding $1 million or imprisonment for life, or both.  The 	maximum penalty for the destruction charge is 15 years imprisonment.  The offending 	was of a much more serious type than that of Mr Mo’unga or other comparable cases 	in which suspended sentences have been ordered.
[41]	Given the policy towards drug sentencing evidenced by the significant increase in 	maximum penalty for possession of Class A controlled drugs of a quantity of 1gm or 	more, we cannot accept that Mr Tamo’ua ought to have escaped imprisonment 	completely.  However, his limited culpability and the likelihood that he will take the 	opportunity to rehabilitate himself, reflecting two of the non-exhaustive factors that 	Mo’unga adopted from R v Peterson,, together with the unique circumstances of his 	offending, does permit the maximum degree of suspension.  In our view, an 	appropriate sentence would have been imprisonment for a period of four years, with 	three of those years being suspended.  That would have left Mr Tamo’ua serving one 	year in prison.  
[42]	Were it not for the fact that this is a Crown appeal against sentence, we would have 	imposed a sentence of four years imprisonment, with three years suspended.  In that 	situation, we would not have added the community service component of the existing 	sentence.  However, for the reasons given in explaining an appellate court’s approach 	to Crown appeals against sentence, we do not consider it would be just to require Mr 	Tamo’ua to serve any period of imprisonment at this time.
Result
[43]	For those reasons, the appeal is dismissed.  Mr Tamo’ua will continue to serve the 	sentence imposed by the Supreme Court, including community service.  On delivery 	of this judgment, the stay granted by Lord Chief Justice Whitten on execution of the 	sentence shall cease.
[44]	For the avoidance of doubt, we make it clear that, in a future case truly analogous to 	this, it would be rare that a sentencing court could justify imposing a sentence that did 	not involve at least a relatively short period in custody. 

Harrison J

Heath J

Dalton J