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Takau v R [2025] TOCA 11; AC 21 of 2024 (16 May 2025)

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

AC 21 of 2024
[CR11 & 98 of 2024]

BETWEEN
ISAIAH TAKAU
Appellant

AND
REX
Respondent

Hearing:
5 May 2025

Court:
Randerson, Harrison and Morrison JJ

Counsel:
Tevita ‘Aho for the Appellant
James Lutui, Director of Public Prosecutions for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Background

[1] The appellant pleaded guilty to three charges:
(a) CR 11/24, count 1: possession of 11.94g of methamphetamine, contrary to s 4(1)(a)(iv) of the Illicit Drugs Control Act;
(b) CR 11/24, count 2: possession of 0.02g of cannabis, contrary to s 4(1)(a)(i) of the Illicit Drugs Control Act;
(c) CR 98/24, count 1: cultivation of cannabis, contrary to s 4(1)(a)(ii) of the Illicit Drugs Control Act; 10 plants weighing 36.67g.

• [2] On 14 August 2024, he was sentenced by Acting Justice Langi to the following:

(a) CR 11/24, count 1: four years’ imprisonment, with the final six months suspended for 12 months;
(b) CR 11/24, count 2: one month’s imprisonment
(c) CR 98/24: count 1: two years’ imprisonment; three months to be served consecutively on count 1 in CR 11/24.

• [3] The effective sentence was four years and three months, with the final six months to be suspended.
• [4] The appellant challenges the sentences on several grounds, contending the learned sentencing judge erred in that:

(a) the start-point of five years was too high, and the resultant sentence is manifestly excessive and crushing;
(b) her Honour misapplied the principles in Zhang v R [2019] NZCA 507;^[1]
(c) her Honour took into account factors that were relevant in Fatu but which were overridden by Zhang v R, namely:

• (i) that lengthy prison sentences are an effective deterrent;
• (ii) the Fatu bands were based on one criterion, i.e. the quantity of methamphetamine; that approach was criticized as being too rigid and removing judges’ discretion.
  • [5] As it will appear, those grounds have been refined in the appellant’s submissions, and the third ground is no longer advanced.

The offending conduct

[6] For CR 11/24, the appellant, aged 38, was charged with two others. Police searched the appellant and his vehicle. In the vehicle was a metal container labelled “baking powder”. It was found to contain packs containing a white substance that later proved to be methamphetamine, and a cannabis seed. Also in the vehicle were: a bag containing methamphetamine, $7,472 pa’anga, and a scale.
[7] The appellant did not cooperate with police, exercising his right to remain silent.
[8] For CR 98/24, the conduct concerned a cannabis plantation maintained by the appellant. He admitted there were cannabis plants at the back of the house. Police found 10 plants, containing 36.67g of cannabis. The appellant exercised his right to silence.

The sentencing remarks

[9] The learned sentencing judge outlined the offences and the essential facts concerning the offending conduct. Her Honour also noted the maximum applicable sentences, which were relevantly:
(a) CR 11/24: a fine of $1m or imprisonment up to life;
(b) CR 98/24: a fine of $5,000 or imprisonment up to seven years.

• [10] Her Honour then noted the following factors:

(a) the appellant had one previous conviction, in the Magistrates Court, for theft in 2007;
(b) the various cases put forward as comparable authorities;^[2]
(c) the Crown’s submissions as to aggravating and mitigating factors, and the indicative sentences; also, the Crown’s contention that the overall sentence should be four and a-half years’ imprisonment, with the final six months suspended
(d) the appellant’s submissions by way of mitigation, including:

• (i) the plea on the trial date;
• (ii) his remorse for leaving his family at home while he was incarcerated;
• (iii) the fact he had a wife and two young children;
• (iv) he was reliable and trustworthy in the community, with a good education and experience in business;
• (v) he had a Master’s degree; and
• (vi) his promise that he had learnt his lesson and will be a law-abiding citizen.

(e) the pre-sentence report which recommended probation; it set out the appellant’s personal history, his education, businesses, and his struggles with drug addiction.

• [11] The learned sentencing judge then set out his reasoning for the imposition of the sentences. That included these matters:

(a) the negative effects of the use and distribution of methamphetamine cannot be overstated; courts have continuously emphasised seriousness of drug offending through sentencing;
(b) first time offenders can no longer rely on that fact to escape custody;
(c) that the circumstances surrounding the charges in CR 11/24 were “serious as it demonstrates the Accused was selling and supplying methamphetamine;
(d) R v Fatu^[3] emphasized the destructive nature of methamphetamine, it being highly addictive and leading to aggressive and irrational behaviour, extreme violence and the creation of a thriving industry involving organised crime;
(e) similar comments were made in R v Ngaue^[4] and R v Maile;^[5]
(f) “the unequivocal message that must be sent out to the youths and the people of this community is that if you involve yourself in drug offending you will receive an imprisonment term as a general rule”;
(g) her Honour adopted the Crown’s suggested start point of five years in respect of CR 11/24; that was in line with the sentencing bands in Zhang v R and warranted by the significant role of the appellant and the amount of drugs found on him;^[6]
(h) that start point was reduced by 12 months for mitigating factors (the late plea and the appellant being first-time drug offender;
(i) for CR 98/24, the Crown’s suggested start point of two years (in line with Vea v R^[7]) was adopted, then reduced by 12 moths for mitigating factors (the guilty plea at the first chance and cooperation with police); and
(j) as to the question of suspension of part of the sentence, her Honour noted the principles in Mo’unga v R^[8]; the appellant was not young and not a first-time offender even if he was a first-time drug offender; the only thing in his favour is the “very late guilty plea” for CR 11/24.

Consideration

[12] The first ground advanced is that the learned sentencing judge misapplied the principles in Zhang in wo respects:
(a) the appellant’s culpability; and
(b) not taking into consideration the appellant’s addiction to methamphetamine.

• [13] The first point stems from her Honour’s conclusion that for sentencing purposes the appellant had the methamphetamine for the purpose of selling or supply. It is contended there was no factual basis for that finding.
• [14] The Crown’s submissions on sentencing included the characterisation of the appellant’s role as a drug supplier.^[9] This was said to be an conclusion open from: the presence of drug related paraphernalia and the large sum of cash in the appellant’s bag. On that basis, it was said, the appellant ‘s role should be placed in the Zhang band 2, namely “significant”, rather than “lesser” or “leading”.
• [15] The appellant’s submissions below, filed six days later, did not challenge that characterisation.
• [16] The facts as recited by the learned sentencing judge included the following:

(a) when the vehicle was searched the methamphetamine was found in several packs; one large pack contained methamphetamine, and a second large pack contained two small packs, each containing methamphetamine;^[10]
(b) a NIKE bag in the car contained large chunks of methamphetamine, and $7,472 pa’anga;^[11]
(c) in between the front seats of the car was a scale belonging to the appellant; the appellant admitted that he used the scale for cooking methamphetamine;^[12]
(d) the total amount of methamphetamine was 11.94g.^[13]

• [17] The learned sentencing judge’s remarks referred to the Crown’s characterisation of the appellant’s “significant” role, which derived from his being a supplier.^[14] The remarks also noted the appellant’s acceptance of the summary of facts, and the appellant’s statements in the pre-sentence report that “the reason for the offending was for personal use”, and that he had been using cannabis for a long time “and this was the first time he got involved with methamphetamine”.^[15]
• [18] The last point has some significance. If it be accepted that the circumstances of CR 11/24 were the appellant’s first involvement with methamphetamine, the amounts involved (11.94g) plainly suggest something other than personal use.
• [19] In that state of affairs it was, in our view, open to the learned sentencing judge to find that the circumstances surrounding the charges in CR 11/24 showed the appellant was supplying methamphetamine.
• [20] This ground fails.
• [21] The second point argues that her Honour failed to take the appellant's addiction to methamphetamine into consideration.
• [22] The pre-sentence report made reference to the appellant’s addiction:

(a) under the heading Health/Leisure, that the appellant “admitted to illegal drug addiction”;^[16]
(b) his wife said she was “aware of the accused’s illegal drug addiction”; this was based on her observation of his disrupted pattern of behaviour since 2021 and his admission to her in late 2023 that he was using illegal drugs^[17]
(c) the appellant “admitted to have a long term illegal drugs addiction that started when he studied in China”;^[18] we pause to note that he studied in China as far back as 2012;^[19]
(d) his attitudes and behaviour are “directly linked to ... illegal drugs addiction problems”.^[20]

• [23] The learned sentencing judge’s remarks refer to the pre-sentence report and to its comments on the question of addiction.^[21]
• [24] One cannot overlook the appellant’s account about the circumstances of CR 11/24 as reflected in the pre-sentence report. It is that he had been using cannabis for a long time “and this was the first time he got involved with methamphetamine”.^[22]
• [25] On the appellant’s own evidence, his involvement with methamphetamine at the time of the conduct in CR 11/24 was very recent. There is, in our view, no adequate foundation to find that the appellant’s addiction was to methamphetamine, but rather cannabis or something else.
• [26] In Zhang v R, the Court referred to the fact that an accused’s drug addiction is a mitigating factor if it is causative of the offending.^[23] However, here there is no sound basis to find that the appellant had an addiction to methamphetamine that was causative of the methamphetamine offending in CR 11/24.
• [27] Moreover, it must be noted that there was no submission made by the appellant to the learned sentencing judge that his addiction was to methamphetamine and was causative of the offending.
• [28] This ground fails.
• [29] Given the failure of both grounds there is no need to consider the question of re-sentencing.
• [30] The appeal must be dismissed.
  

Result

1. The appeal is dismissed.

Randerson J

Harrison J

Morrison J

^[1] As adopted in Tonga since R v Mangisi CR 10 of 2018 and R v Tomo’ua [2023] TOCA 18.
^[2] R v Mangisi CR 10 of 2018; R v Kafalava and Veamatahau CR 26 & 28 of 2023; R v Mateni CR 213 of 2010; R v Finau [2021] TOSC; R v Saafi [2021] TOSC 10; R v Lao [2022] TOSC 58 and T v Toki AC 19 of 2022.
^[3] R v Fatu [2005] NZCA 278.
^[4] R v Ngaue [2018] TOSC 38.
^[5] R v Maile [2019] TOCA 17.
^[6] Zhang v R [2019] NZCA 502.
^[7] Vea v R [2004] Tonga LR 177.
^[8] Mo’unga v R [1998] Tonga LR 154.
^[9] Paragraphs 15-16.
^[10] Paragraph 6.
^[11] Paragraph 7.
^[12] Paragraph 8.
^[13] Paragraph 10.
^[14] Paragraphs 18b, 53-55, 104.
^[15] Paragraphs 90-91.
^[16] Paragraph 10.
^[17] Paragraphs 4 and 11.
^[18] Paragraph 26.
^[19] Paragraph 5.
^[20] Paragraph 31.
^[21] Paragraph 80-96, but specifically paragraph 85.
^[22] Paragraphs 90-91.
^[23] Zhang v R [2019] NZCA 502 at [10](k).