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Mafi v R [2004] TOLawRp 32; [2004] Tonga LR 200 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA

Mafi anor

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
Cr App 9/03

21 July 2004; 30 July 2004

Criminal law – appeals against sentence – one appeal allowed – one appeal dismissed

The appellants were each separately charged with a series of drug-related offences. The first appellant pleaded guilty to all the charges against her. The second appellant pleaded not guilty. Following a defended hearing before the Chief Justice, he was found guilty on all counts, except count 1 under CR 20/04 of cultivation of 8 cannabis plants. The second appellant was unrepresented at his trial. Both appellants were unrepresented at their sentencing. The first appellant was effectively sentenced to 4 ½ years imprisonment. The second appellant was effectively sentenced to 7 years imprisonment. Both appellants appealed against the sentences imposed and contended that the sentences imposed were severe and would affect the appellants adversely for the rest of their lives, but would have little impact on the prevalence of drugs in Tonga.

Held:

1. A significant aggravating feature was the scale of the operation. Having regard to the quantity and manner of packaging, possession was for the purpose of sale. The appellants were not charged with possession for supply, but the probability that they were growing cannabis for the purpose of sale as well as for personal use could properly be taken into account in considering an appropriate sentence.

2. A further aggravating feature common to both appellants was that they were prepared to continue with their criminal activity while they were on bail on the earlier charges. Then having been charged with the earlier offending they again continued with their criminal activity. They were not deterred by their apprehension on the other charges. They appear to have been determined to continue, whatever course the law took.

3. With respect to the first appellant, the Court was satisfied that a deterrent sentence was appropriate. However, the Court concluded that the sentence imposed did not take sufficient account of the influence of the first appellant over her. When this factor was taken into account, an appropriate sentence for the first appellant was a sentence totalling three and a half years. To enable her to resume her life with an incentive to avoid any further drug involvement, the Court suspended the last six months of the sentence, that suspension to be for eighteen months from her release from custody.

4. With respect to the second appellant, a significantly deterrent sentence was required for two reasons, first to bring home to him, once and for all, that he would have to cease his cannabis growing business, and secondly, to send a clear message to any other person minded to commence a like enterprise, that the penalty on conviction was such that it was simply not worth the risk. The appeal by the second appellant was dismissed.

Cases considered:

R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA)

Vea v R [2004] Tonga LR 177 (CA)

Rules considered:

Prison Rules

Counsel for appellants: Mr Niu
Counsel for respondent: Mr Sisifa

Judgment

Introduction

[1] The appellants were each separately charged with a series of drug-related offences as follows:

CR 260/2003 against the first appellant, laid under the Drugs and Poisons Act (Cap. 79)

1. Possession of 83 plastic bags containing Indian hemp, each of approximately .09g, on about 21 January 2003

2. Possession of 8 Indian hemp plants on or about 22 January 2003

CR 261/2003 against the second appellant, laid under the Drugs and Poisons Act (Cap 79)

3. Growing 8 Indian hemp plants on or about 22 January 2003

4. Possession of 83 plastic bags containing Indian hemp on or about 22 January 2003

5. Possession of 8 Indian hemp plants on or about 22 January 2003

CR 20/04 against both appellants, laid under the Illicit Drugs Control Act 2003

1. Cultivation of 8 cannabis plants in or about July 2003.

2. Possession of leaves of cannabis plant in 10 plastic bags of a total weight of 1.85 kg on or about 13 November 2003.

3. Possession of 7,000 cannabis seeds and leaves in 3 plastic bags on or about 13 November 2003.

[2] The first appellant pleaded guilty to all the charges against her. The second appellant pleaded not guilty. Following a defended hearing before the Chief Justice, he was found guilty on all counts, except count 1 under CR 20/04 of cultivation of 8 cannabis plants. The second appellant was unrepresented at his trial. Both appellants were unrepresented at their sentencing.

[3] The first appellant was sentenced:

260/03

Count 1 – 2 years imprisonment

Count 2 – 3 years imprisonment

21/04

Count 1 – 4 years imprisonment

Count 2 – 3 years imprisonment

Count 3 – 4½ years imprisonment

[4] All the sentences were concurrent with each other and with the sentence imposed in case number 143/02. Thus she was effectively sentenced to 4½ years imprisonment.

[5] The second appellant was sentenced:

261/03

Count 1 – 4 years imprisonment

Count 2 – 3 years imprisonment

Count 3 – 4 years imprisonment

20/04

Count 2 – 7 years imprisonment

Count 3 – 7 years imprisonment

[6] All the sentences were concurrent, but cumulative on the sentence of 2 years imprisonment he had been ordered to serve in CR 144/02. On the charges in CR 261/03 and CR 20/04 he was effectively sentenced to 7 years imprisonment.

[7] Both appellants have appealed against the sentences imposed.

Facts

[8] On 21 January 2003 the appellants were stopped by police. At various times during the events that followed both appellants attempted to escape police custody. The first appellant was searched and found to be in possession of 83 small plastic bags containing Indian hemp. 110

[9] On the following day a police officer located 8 Indian hemp plants, wrapped in a skirt, behind a door in the Police station, in an area where the first appellant had been seated the previous night. The first appellant told the police in the course of her interview that the second appellant had given her the 83 plastic bags of Indian hemp to hide, and that they were taking the 8 Indian hemp plants to find a place to hide them.

[10] On 13 November 2003 the police executed a search warrant on a tax allotment belonging to another, that the appellants were occupying. They found a red dustbin containing the leaves of cannabis plant packed in 10 plastic bags, and also 7,000 cannabis seeds that were packed in three plastic bags.

[11] The appellants applied for leave to appeal out of time. That application was granted by the Chief Justice.

Previous convictions

[12] At the time these offences were committed, the first appellant had no previous convictions. However, she had been charged in CR 143-144/02 with possession of Indian hemp on 8 October 2002. On 18 May 2004 she was sentenced to nine months imprisonment, the final seven months to be suspended for two years from the date of her release. When the offences that are the subject of the present appeal were committed, she was on bail for the offences in CR 143-144/02.

[13] When the offences in CR 20/04 were committed in November 2003, she was on bail, having been charged with the offences in CR 260/03.

[14] The second appellant has the following relevant previous convictions:

[a] On 8 May 1998 he was convicted of possession of Indian hemp and sentenced to 15 months imprisonment.

[b] On 20 November 1998 he was convicted of growing and possession of Indian hemp for which he was sentenced to four years imprisonment, the last eighteen months to be suspended for one year.

[c] On 29 March 2000 he was convicted of growing Indian hemp and possession of Indian hemp for which he was sentenced to nine months imprisonment, the balance of the previous sentence reduced to nine months suspension to commence on release from the prison sentences and to be for nine months.

[d] On 1 April 2004 he was convicted of possession of Indian hemp and sentenced to two years imprisonment, that being in respect of the same matters for which the first appellant was charged in CR 143-144/02.

[15] When the offences the subject of the present appeal were committed he was on bail for the offences in CR 143-144/02. When the offences in CR 20/04 were committed in November 2003, he was on bail, having been charged with the offences in CR 260/03.

[16] At the present time, the second appellant is facing a charge of four counts of growing three Indian hemp plants in December 2000, possession of three Indian hemp plants in March 2001, possession of two plastic bags containing Indian hemp in March 2001, and supplying a prisoner with Indian hemp in February 2001 at Hu'atolitoli prison. This case was part heard on 10 June 2002, but that hearing was discontinued and the charges are now set down for hearing on 16 August 2004. Counsel for the second appellant advised the Court that the second appellant now wishes to change his plea, and to plead guilty on all four counts.

Grounds of appeal

[17] In their grounds of appeal the appellants submit that the sentences imposed are severe and will affect the appellants adversely for the rest of their lives, but will have little impact on the prevalence of drugs in Tonga. The sentences imposed on the second appellant have not made him any the wiser, but rather have made him more dependent on income from drugs. It is submitted that the appellants are caught in a cycle between the dealers and retailers of cannabis. The appellants want to break out of the cycle but cannot do so while they are imprisoned. The notice of appeal asks the Court to order a rehabilitative sentence such as probation or community service with conditions that they attend at an appropriate charitable organization for drug rehabilitation.

[18] In his submissions on the appeal Mr Niu on behalf of the appellants submitted that this Court should remit the sentencing back to the Supreme Court to be dealt with at the time the second appellant is sentenced on the outstanding charges. He submitted that the first appellant should be released on her suspended sentence pending the sentence that the Supreme Court will impose on that re-sentencing.

[19] We do not accept either of these submissions.

[20] In view of the second appellant's previous convictions for persistent offending over a substantial period, there can be no possible grounds for releasing him on probation for drug rehabilitation at this time. It will be for the second appellant to demonstrate by good conduct during his time in custody that he has a genuine desire to overcome his addiction and to cease entirely his past practice of growing cannabis. If he does so, this will no doubt be a factor that the authorities will take into account when considering early release under rule 110 of the Prisons Rules. It would certainly be our recommendation, if he has demonstrated such a desire, that it should be a condition of early release that he attend an appropriate drug rehabilitation programme.

[21] We find no reason why the sentences on the present charges should not be finalised now. No doubt, when the Supreme Court comes to sentence the second appellant on the outstanding charges, regard will be had to the sentences he is serving on the charges the subject matter of this appeal.

Factors relevant to sentencing

[22] In our judgment in Vea v R [2004] Tonga LR 177 (CA), we gave some further guidance on the appropriate approach to sentencing in drug-related cases. The principles we set out in that case apply with equal force to this and we do not repeat them.

[23] This case falls within the second category in R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA), namely growing for small scale commercial purposes where a starting point for sentencing of between two years and four years may be appropriate.

[24] A significant aggravating feature in the present case is the scale of the operation. We agree with the observation made by the Chief Justice when sentencing that having regard to the quantity and manner of packaging, possession was for the purpose of sale. The appellants have not been charged with possession for supply, but the probability that they were growing this cannabis for the purpose of sale as well as for personal use can properly be taken into account in considering an appropriate sentence.

[25] We also agree with the Chief Justice when he said:

"Anyone who is involved in this trade must bear some of the responsibility for the spread of the evil of drug abuse in this community. Such involvement shows a cynical disregard for the harm it does to the people - especially young people - whose lives you are willing to destroy by encouraging drug abuse."

[26] A further aggravating feature common to both appellants is that they were prepared to continue with their criminal activity while they were on bail on the earlier charges. Then having been charged with the earlier offending with which this appeal is concerned, they again continued with their criminal activity. They were not deterred by their apprehension on the other charges. They appear to have been determined to continue, whatever course the law took.

The first appellant

[27] She is now aged 21. She married the second appellant earlier this year but had been living with him for some years before. Clearly, it was her association with him that resulted in her becoming involved in the drug trade. According to the probation service report we have received in respect of the earlier offending, she neither drinks alcohol nor smokes and is a regular attendee at the Mormon Church.

[28] We have no doubt that not only her introduction to but also her continuing to be involved in the growing of cannabis was entirely due to the second appellant's influence over her. He was aged 35 at the time of the offending, a difference in age that no doubt contributed to the influence he had over her. This influence is vividly demonstrated by her pleading guilty to all the charges in an apparent attempt to enable her husband escape conviction. His defence to the charge was that he had no knowledge of the cannabis, the seeds or the plants - a contention the Chief Justice rejected. This was a blatant attempt by him to have her shoulder all the blame for the offending.

[29] Although she was a second offender only to the extent that she committed the offences in CR 20/04 when she was on bail for the offences in CR 260/03, all of the offences can be regarded as part of a single commercial growing operation.

[30] While we are satisfied that a deterrent sentence was appropriate, we have concluded that the sentence imposed did not take sufficient account of the influence of the first appellant over her. When this factor is taken into account, we consider that an appropriate sentence for the first appellant is a sentence totalling three and a half years. To enable her to resume her life with an incentive to avoid any further drug involvement, we suspend the last six months of the sentence, that suspension to be for eighteen months from her release from custody.

The second appellant

[31] Very different considerations apply to the appeal by the second appellant. It is clear from his previous convictions that he had been operating his cannabis growing business for at least six years. It is also clear that the previous sentences of imprisonment have failed to persuade him to abandon his criminal activity. This history is a significant aggravating factor. He is not entitled to any discount for a guilty plea.

[32] In his case a significantly deterrent sentence was required for two reasons, first to bring home to him, once and for all, that he will have to cease his cannabis growing business, and secondly, to send a clear message to any other person minded to commence a like enterprise, that the penalty on conviction is such that it is simply not worth the risk.

[33] For these reasons, we are not satisfied that the effective sentence imposed of seven years imprisonment for all the charges is excessive.

Result

[34] The appeal by the first appellant is allowed to the extent that the sentences imposed on counts 1 and 3 of CR 21/04 are quashed. In lieu thereof the first appellant is on each count sentenced to three and a half years imprisonment. The last six months of the sentence is suspended for eighteen months from her release from custody. As before, all sentences are concurrent with each other and with the sentence imposed in CR 143/02.

[35] The appeal by the second appellant is dismissed.